[Federal Register Volume 77, Number 176 (Tuesday, September 11, 2012)]
[Proposed Rules]
[Pages 55755-55768]
From the Federal Register Online via the Government Printing Office [www.gpo.gov]
[FR Doc No: 2012-22259]
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SMALL BUSINESS ADMINISTRATION
13 CFR Part 121
RIN 3245-AG43
Small Business Size Standards: Agriculture, Forestry, Fishing,
and Hunting
AGENCY: U.S. Small Business Administration.
ACTION: Proposed rule.
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SUMMARY: The U.S. Small Business Administration (SBA) proposes to
increase small business size standards for 11 industries in North
American Industry Classification System (NAICS) Sector 11, Agriculture,
Forestry, Fishing and Hunting. As part of its ongoing comprehensive
size standards review, SBA evaluated receipts based size standards for
16 industries and two sub-industries in NAICS Sector 11 to determine
whether they should be retained or revised. SBA did not review size
standards for 46 industries in NAICS Sector 11 that are currently set
by statute at $750,000 in average annual receipts. SBA also did not
review the 500-employee based size standard for NAICS 113310, Logging,
but will review it in the near future with other employee based size
standards. This proposed rule is one of a series of proposed rules that
will review size standards of industries grouped by NAICS Sector. SBA
issued a White Paper entitled ``Size Standards Methodology'' and
published a notice in the October 21, 2009 issue of the Federal
Register to advise the public that the document is available on its Web
site at www.sba.gov/size for public review and comments. The ``Size
Standards Methodology'' White Paper explains how SBA establishes,
reviews, and modifies its receipts based and employee based small
business size standards. In this proposed rule, SBA has applied its
methodology that pertains to establishing, reviewing, and modifying a
receipts based size standard.
DATES: SBA must receive comments to this proposed rule on or before
November 13, 2012.
ADDRESSES: Identify your comments by RIN 3245-AG43 and submit them by
one of the following methods: (1) Federal eRulemaking Portal:
www.regulations.gov, following the instructions for submitting
comments; or (2) Mail/Hand Delivery/Courier: Khem R. Sharma, Ph.D.,
Chief, Size Standards Division, 409 Third Street SW., Mail Code 6530,
Washington, DC 20416. SBA will not accept comments to this proposed
rule submitted by email.
SBA will post all comments to this proposed rule on
www.regulations.gov. If you wish to submit confidential business
information (CBI) as defined in the User Notice at www.regulations.gov,
you must submit such information to U.S. Small Business Administration,
Khem R. Sharma, Ph.D., Chief, Size Standards Division, 409 Third Street
SW., Mail Code 6530, Washington, DC 20416, or send an email to
sizestandards@sba.gov. Highlight the information that you consider to
be CBI and explain why you believe SBA should hold this information as
confidential. SBA will review your information and determine whether it
will make the information public.
FOR FURTHER INFORMATION CONTACT: Jorge Laboy-Bruno, Ph.D., Economist,
Size Standards Division, (202) 205-6618 or sizestandards@sba.gov.
SUPPLEMENTARY INFORMATION: To determine eligibility for Federal small
business assistance, SBA establishes small business size definitions
(referred to as size standards) for private sector industries in the
United States. SBA uses two primary measures of business size--average
annual receipts and average number of employees. SBA uses financial
assets, electric output, and refining capacity to measure the size of a
few specialized industries. In addition, SBA's Small Business
Investment Company (SBIC), Certified Development Company (504), and
7(a) Loan Programs use either the industry based size standards, or net
worth and net income based alternative size standards to determine
eligibility for those programs. At the beginning of the current
comprehensive size standards review, there were 41 different size
standards covering 1,141 NAICS industries and 18 sub-industry
activities (``exceptions'' in SBA's table of size standards). Thirty-
one of these size levels were based on average annual receipts, seven
were based on average number of employees, and three were based on
other measures.
Over the years, SBA has received comments that its size standards
have not kept up with changes in the economy, in particular the changes
in the Federal contracting marketplace and industry structure. The last
time SBA conducted a comprehensive review of all size standards was
during the late 1970s and early 1980s. Since then, most reviews of size
standards were limited to a few specific industries in response to
requests from the public and Federal agencies. SBA also adjusts all
monetary based size standards (except for statutorily set size
standards in NAICS Sector 11) for inflation at least once every five
years. SBA's latest inflation adjustment to size standards was
published in the Federal Register on July 18, 2008 (73 FR 41237).
NAICS 11, Agriculture, Forestry, Fishing and Hunting, includes 46
industries within NAICS Subsector 111 (Agricultural Crop Production)
and NAICS Subsector 112 (Animal
[[Page 55756]]
Production) for which size standards are set by statute, currently at
$750,000 in average annual receipts. Within NAICS Subsector 112, SBA
may revise the size standards for only two industries: NAICS 112112
(Cattle Feedlots) and NAICS 112310 (Chicken Egg Production).
Because of changes in the Federal marketplace and industry
structure since the last comprehensive size standards review, SBA
recognizes that current data may no longer support some of its existing
size standards. Accordingly, in 2007, SBA began a comprehensive review
of all size standards to determine if they are consistent with current
data, and to adjust them when necessary. In addition, on September 27,
2010, the President of the United States signed the Small Business Jobs
Act of 2010 (Jobs Act). The Jobs Act directs SBA to conduct a detailed
review of all size standards and to make appropriate adjustments to
reflect market conditions. Specifically, the Jobs Act requires SBA to
conduct a detailed review of at least one-third of all size standards
during every 18-month period from the date of its enactment. In
addition, the Jobs Act requires that SBA review all size standards not
less frequently than once every five years thereafter. Reviewing
existing small business size standards and making appropriate
adjustments based on current data are also consistent with Executive
Order 13563 on improving regulation and regulatory review.
Rather than review all size standards at one time, SBA is reviewing
size standards on a Sector by Sector basis. A NAICS Sector generally
includes 25 to 75 industries, except for NAICS Sector 31-33,
Manufacturing, which has considerably more industries. Once SBA
completes its review of size standards for industries in a NAICS
Sector, it issues a proposed rule to revise size standards for those
industries for which it believes currently available data and other
relevant factors support doing so.
Below is a discussion of SBA's size standards methodology for
establishing receipts based size standards that SBA applied to this
proposed rule, including analyses of industry structure, Federal
procurement trends, the impact of the proposed revisions to size
standards on Federal small business assistance, and the evaluation of
whether a revised size standard would exclude dominant firms from being
considered small.
Size Standards Methodology
SBA has recently developed a ``Size Standards Methodology'' for
developing, reviewing, and modifying size standards when necessary. SBA
published the document on its Web site at www.sba.gov/size for public
review and comments, and has included it as a supporting document in
the electronic docket of this proposed rule at www.regulations.gov. SBA
does not apply all features of its ``Size Standards Methodology'' to
all industries because not all features are appropriate for every
industry. For example, since all industries in NAICS Sector 11 that are
being reviewed in this proposed rule have receipts based size
standards, the methodology described in this proposed rule applies only
to establishing receipts based size standards. However, the methodology
is available in its entirety for parties who have an interest in SBA's
overall approach to establishing, evaluating, and modifying small
business size standards. SBA always explains its analysis in individual
proposed and final rules relating to size standards for specific
industries.
SBA welcomes comments from the public on a number of issues
concerning its ``Size Standards Methodology,'' such as whether there
are other approaches to establishing and modifying size standards;
whether there are alternative or additional factors that SBA should
consider; whether SBA's approach to small business size standards makes
sense in the current economic environment; whether SBA's use of anchor
size standards is appropriate; whether there are gaps in SBA's
methodology because the data it uses are not current or sufficiently
comprehensive; and whether there are other data, facts, and/or issues
that SBA should consider. Comments on SBA's size standards methodology
should be submitted via: (1) The Federal eRulemaking Portal:
www.regulations.gov, following the instructions for submitting
comments; the docket number is SBA-2009-0008, or (2) Mail/Hand
Delivery/Courier: Khem R. Sharma, Ph.D., Chief, Size Standards
Division, 409 Third Street SW., Mail Code 6530, Washington, DC 20416.
As it will do with comments to this and other proposed rules, SBA will
post all comments on its methodology on www.regulations.gov. As of May
31, 2012, SBA has received 14 comments to its ``Size Standards
Methodology.'' The comments are available to the public at
www.regulations.gov. SBA continues to welcome comments on its
methodology from interested parties. SBA will not accept comments to
its ``Size Standards Methodology'' submitted by email.
Congress granted the SBA's Administrator discretion to establish
detailed small business size standards. 15 U.S.C. 632(a)(2).
Specifically, Section 3(a)(3) of the Small Business Act (15 U.S.C.
632(a)(3)) requires that ``* * * the [SBA] Administrator shall ensure
that the size standard varies from industry to industry to the extent
necessary to reflect the differing characteristics of the various
industries and consider other factors deemed to be relevant by the
Administrator.'' Accordingly, the economic structure of an industry is
the basis for developing and modifying small business size standards.
SBA identifies the small business segment of an industry by examining
data on the economic characteristics defining the industry structure
(as described below). In addition, SBA considers current economic
conditions, its mission and program objectives, the Administration's
current policies, suggestions from industry groups and Federal
agencies, and public comments on the proposed rule. SBA also examines
whether a size standard based on industry and other relevant data
successfully excludes businesses that are dominant in the industry.
This proposed rule includes information regarding the factors SBA
evaluated and the criteria it used to propose adjustments to receipts
based size standards for 16 industries and two sub-industries
(``exceptions'') in NAICS Sector 11. This proposed rule affords the
public an opportunity to review and to comment on SBA's proposal to
revise size standards in NAICS Sector 11, as well as on the data and
methodology it used to evaluate and revise the size standards.
Industry Analysis
For the current comprehensive size standards review, SBA has
established three ``base'' or ``anchor'' size standards--$7.0 million
in average annual receipts for industries that have receipts based size
standards, 500 employees for manufacturing and other industries that
have employee based size standards (except for Wholesale Trade), and
100 employees for industries in the Wholesale Trade Sector. SBA
established 500 employees as the anchor size standard for manufacturing
industries at its inception in 1953. Shortly thereafter, SBA
established $1 million in average annual receipts as the anchor size
standard for nonmanufacturing industries. SBA has periodically
increased the receipts based anchor size standard for inflation, and
today it is $7 million. Since 1986, the size standard for all
industries in the Wholesale Trade Sector for SBA's financial assistance
and for most Federal programs has been 100 employees. However, NAICS
codes
[[Page 55757]]
for the Wholesale Trade Sector and their 100 employee size standards do
not apply to Federal procurement programs. Rather, for Federal
procurement the size standard for all industries in Wholesale Trade
(NAICS Sector 42) and for all industries in Retail Trade (NAICS Sector
44-45) is 500 employees under SBA's nonmanufacturer rule (13 CFR
121.406(b)).
These long-standing anchor size standards have stood the test of
time and gained legitimacy through practice and general public
acceptance. An anchor is neither a minimum nor a maximum size standard.
It is a common size standard for a large number of industries that have
similar economic characteristics and serves as a reference point in
evaluating size standards for individual industries. SBA uses the
anchor in lieu of trying to establish precise small business size
standards for each industry. Otherwise, theoretically, the number of
size standards might be as high as the number of industries for which
SBA establishes size standards (1,141). Furthermore, the data SBA
analyzes are static, while the U.S. economy is not. Hence, absolute
precision is impossible. SBA presumes an anchor size standard is
appropriate for a particular industry unless that industry displays
economic characteristics that are considerably different from other
industries with the same anchor size standard.
When evaluating a size standard, SBA compares the economic
characteristics of the industry under review to the average
characteristics of industries with one of the three anchor size
standards (referred to as the ``anchor comparison group''). This allows
SBA to assess the industry structure and to determine whether the
industry is appreciably different from the other industries in the
anchor comparison group. If the characteristics of a specific industry
under review are similar to the average characteristics of the anchor
comparison group, the anchor size standard is generally appropriate for
that industry. SBA may consider adopting a size standard below the
anchor when: (1) all or most of the industry characteristics are
significantly smaller than the average characteristics of the anchor
comparison group; or (2) other industry considerations strongly suggest
that the anchor size standard would be an unreasonably high size
standard for the industry.
If the specific industry's characteristics are significantly higher
than those of the anchor comparison group, then a size standard higher
than the anchor size standard may be appropriate. The larger the
differences are between the characteristics of the industry under
review and those in the anchor comparison group, the larger will be the
difference between the appropriate industry size standard and the
anchor size standard. To determine a size standard above the anchor
size standard, SBA analyzes the characteristics of a second comparison
group. For industries with receipts based size standards, including
those in NAICS Sector 11 reviewed in this proposed rule, SBA has
developed a second comparison group consisting of industries that have
the highest of receipts based size standards. To determine a size
standard above the anchor size standard, SBA analyzes the
characteristics of this second comparison group. The size standards for
this group of industries range from $23 million to $35.5 million in
average annual receipts; the weighted average size standard for the
group is $29 million. SBA refers to this comparison group as the
``higher level receipts based size standard group.''
The primary factors that SBA evaluates to examine industry
structure include average firm size, startup costs and entry barriers,
industry competition, and distribution of firms by size. SBA evaluates,
as an additional primary factor, the impact that revised size standards
might have on Federal contracting assistance to small businesses. These
are, generally, the five most important factors SBA examines when
establishing or revising a size standard for an industry. However, SBA
will also consider and evaluate other information that it believes is
relevant to a particular industry (such as technological changes,
growth trends, SBA financial assistance, other program factors, etc.).
SBA also considers possible impacts of size standard revisions on
eligibility for Federal small business assistance, current economic
conditions, the Administration's policies, and suggestions from
industry groups and Federal agencies. Public comments on a proposed
rule also provide important additional information. SBA thoroughly
reviews all public comments before making a final decision on its
proposed size standards. Below are brief descriptions of each of the
five primary factors that SBA has evaluated for each industry in NAICS
Sector 11. A more detailed description of this analysis is provided in
SBA's ``Size Standards Methodology,'' available at http://www.sba.gov/size.
1. Average firm size. SBA computes two measures of average firm
size: simple average and weighted average. For industries with receipts
based size standards, the simple average is the total receipts of the
industry divided by the total number of firms in the industry. The
weighted average firm size is the sum of weighted simple averages in
different receipts size classes, where weights are the shares of total
industry receipts for respective size classes. The simple average
weighs all firms within an industry equally regardless of their size.
The weighted average overcomes that limitation by giving more weight to
larger firms.
If the average firm size of an industry is significantly higher
than the average firm size of industries in the anchor comparison
industry group, this will generally support a size standard higher than
the anchor size standard. Conversely, if the industry's average firm
size is similar to or significantly lower than that of the anchor
comparison industry group, it will be a basis to adopt the anchor size
standard, or, in rare cases, a standard lower than the anchor.
2. Startup costs and entry barriers. Startup costs reflect a firm's
initial size in an industry. New entrants to an industry must have
sufficient capital and other assets to start and maintain a viable
business. If new firms entering a particular industry have greater
capital requirements than firms in industries in the anchor comparison
group, this can be a basis for establishing a size standard higher than
the anchor size standard. In lieu of actual startup cost data, SBA uses
average assets as a proxy to measure the capital requirements for new
entrants to an industry.
To calculate average assets, SBA begins with the sales to total
assets ratio for an industry from the Risk Management Association's
Annual eStatement Studies. SBA then applies these ratios to the average
receipts of firms in that industry. An industry with average assets
that are significantly higher than those of the anchor comparison group
is likely to have higher startup costs; this in turn will support a
size standard higher than the anchor. Conversely, an industry with
average assets that are similar to or lower than those of the anchor
comparison group is likely to have lower startup costs; this will
support the anchor standard or one lower than the anchor.
3. Industry competition. Industry competition is generally measured
by the share of total industry receipts generated by the largest firms
in an industry. SBA generally evaluates the share of industry receipts
generated by the four largest firms in each industry. This is referred
to as the ``four-firm concentration ratio,'' a commonly used economic
measure of market
[[Page 55758]]
competition. SBA compares the four-firm concentration ratio for an
industry to the average four-firm concentration ratio for industries in
the anchor comparison group. If a significant share of economic
activity within the industry is concentrated among a few relatively
large companies, all else being equal, SBA will establish a size
standard higher than the anchor size standard. SBA does not consider
the four-firm concentration ratio as an important factor in assessing a
size standard if its share of economic activity of the largest four
firms within the industry is less than 40 percent. For an industry with
a four-firm concentration ratio of 40 percent or more, SBA examines the
average size of the four largest firms to determine a size standard.
4. Distribution of firms by size. SBA examines the shares of
industry total receipts accounted for by firms of different receipts
and employment size classes in an industry. This is an additional
factor in assessing industry competition. If most of an industry's
economic activity is attributable to smaller firms, this generally
indicates that small businesses are competitive in that industry. This
can support adopting the anchor size standard. If most of an industry's
economic activity is attributable to larger firms, this indicates that
small businesses are not competitive in that industry. This can support
adopting a size standard above the anchor.
Concentration is a measure of inequality of distribution. To
determine the degree of inequality of distribution in an industry, SBA
computes the Gini coefficient, using the Lorenz curve. The Lorenz curve
presents the cumulative percentages of units (firms) along the
horizontal axis and the cumulative percentages of receipts (or other
measures of size) along the vertical axis. (For further detail, please
refer to SBA's ``Size Standards Methodology'' on its Web site at
www.sba.gov/size.) Gini coefficient values vary from zero to one. If
receipts are distributed equally among all the firms in an industry,
the value of the Gini coefficient will equal zero. If an industry's
total receipts are attributed to a single firm, the Gini coefficient
will equal one.
SBA compares the Gini coefficient value for an industry with that
for industries in the anchor comparison group. If the Gini coefficient
value for an industry is higher than it is for industries in the anchor
comparison industry group this may, all else being equal, warrant a
size standard higher than the anchor. Conversely, if an industry's Gini
coefficient is similar to or lower than that for the anchor group, the
anchor standard, or in some cases a standard lower than the anchor, may
be adopted.
5. Impact on Federal contracting and SBA loan programs. SBA
examines the possible impact a size standard change may have on Federal
small business assistance. This most often focuses on the share of
Federal contracting dollars awarded to small businesses in the industry
in question. In general, if the small business share of Federal
contracting in an industry with significant Federal contracting is
appreciably less than the small business share of the industry's total
receipts, this could justify considering a size standard higher than
the existing size standard. The disparity between the small business
Federal market share and industry-wide small business share may be due
to various factors, such as extensive administrative and compliance
requirements associated with Federal contracts, the different skill set
required for Federal contracts as compared to typical commercial
contracting work, and the size of Federal contracts. These, as well as
other factors, are likely to influence the type of firms within an
industry that compete for Federal contracts. By comparing the small
business Federal contracting share with the industry-wide small
business share, SBA includes in its size standards analysis the latest
Federal contracting trends. This analysis may support a size standard
larger than the current size standard.
SBA considers Federal contracting trends in the size standards
analysis only if: (1) the small business share of Federal contracting
dollars is at least 10 percent lower than the small business share of
total industry receipts; and (2) the amount of total Federal
contracting averages $100 million or more during the latest three
fiscal years. These thresholds reflect significant levels of
contracting where a revision to a size standard may have an impact on
contracting opportunities to small businesses.
Besides the impact on small business Federal contracting, SBA also
evaluates the impact of a proposed size standard revision on SBA's loan
programs. For this, SBA examines the data on volume and number of its
guaranteed loans within an industry and the size of firms obtaining
those loans. This allows SBA to assess whether the existing or the
proposed size standard for a particular industry may restrict the level
of financial assistance to small firms. If current size standards have
impeded financial assistance to small businesses, higher size standards
may be supportable. However, if small businesses under current size
standards have been receiving significant amounts of financial
assistance through SBA's loan programs, or if the financial assistance
has been provided mainly to businesses that are much smaller than the
existing size standards, SBA does not consider this factor when
determining the size standard.
Sources of Industry and Program Data
SBA's primary source of industry data used in this proposed rule
are special tabulations of the 2007 County Business Patterns (see
www.census.gov/econ/cbp/) from the U.S. Bureau of Census (Census
Bureau) and the 2007 Census of Agriculture (http://www.nass.usda.gov)
from the National Agricultural Statistics Service (NASS). NAICS Sector
11 is not covered by the Census Bureau's Economic Census. The special
tabulations provides SBA with data on the number of firms, number of
establishments, number of employees, annual payroll, and annual
receipts of companies by Industry (6-digit level), Industry Group (4-
digit level), Subsector (3-digit level), and Sector (2-digit level).
These data are arrayed by various classes of firms' size based on the
overall number of employees and receipts of the entire enterprise (all
establishments and affiliated firms) from all industries. The special
tabulation enables SBA to evaluate average firm size, the four-firm
concentration ratio, and distribution of firms by various receipts, and
employment size classes.
In some cases, where data were not available due to disclosure
prohibitions in the Census Bureau's and NASS' tabulations, SBA either
estimated missing values using available relevant data or examined data
at a higher level of industry aggregation, such as at the NAICS 2-digit
(Sector), 3-digit (Subsector), or 4-digit (Industry Group) level. In
some instances, SBA's analysis was based only on those factors for
which data were available or estimates of missing values were possible.
To calculate average assets, SBA used sales to total assets ratios
from the Risk Management Association's Annual eStatement Studies, 2008-
2010.
To evaluate Federal contracting trends, SBA examined data on
Federal contract awards for fiscal years 2008-2010. The data are
available from the U.S. General Service Administration's Federal
Procurement Data System--Next Generation (FPDS-NG).
To assess the impact on financial assistance to small businesses,
SBA examined data on its own guaranteed
[[Page 55759]]
loan programs for fiscal years 2008-2010.
Data sources and estimation procedures SBA uses in its size
standards analysis are documented in detail in SBA's ``Size Standards
Methodology'' White Paper, which is available at www.sba.gov/size.
Dominance in Field of Operation
Section 3(a) of the Small Business Act (15 U.S.C. 632(a)) defines a
small business concern as one that is: (1) Independently owned and
operated; (2) not dominant in its field of operation; and (3) within a
specific small business definition or size standard established by SBA
Administrator. SBA considers as part of its evaluation whether a
business concern at a proposed size standard would be dominant in its
field of operation. For this, SBA generally examines the industry's
market share of firms at the proposed standard. Market share and other
factors may indicate whether a firm can exercise a major controlling
influence on a national basis in an industry where a significant number
of business concerns are engaged. If a contemplated size standard
includes a dominant firm, SBA will consider a lower size standard to
exclude the dominant firm from being defined as small.
Selection of Size Standards
To simplify receipts based size standards, SBA has proposed to
select size standards from a limited number of levels. For many years,
SBA has been concerned about the complexity of determining small
business status caused by a large number of varying receipts based size
standards (see 69 FR 13130 (March 4, 2004) and 57 FR 62515 (December
31, 1992)). At the beginning of the current comprehensive size
standards review, there were 31 different levels of receipts based size
standards. They ranged from $0.75 million to $35.5 million, and many of
them applied to one or only a few industries. SBA believes that such a
large number of different small business size standards are unnecessary
and difficult to justify analytically. To simplify managing and using
size standards, SBA proposes that there be fewer size standard levels.
This will produce more common size standards for businesses operating
in related industries. This will also result in greater consistency
among the size standards for industries that have similar economic
characteristics.
SBA proposes, therefore, to apply one of eight receipts based size
standards to the analysis of receipts based size standards for 16
industries and two sub-industries within NAICS Sector 11 that are
reviewed in this proposed rule. The eight ``fixed'' receipts based size
standard levels are $5 million, $7 million, $10 million, $14 million,
$19 million, $25.5 million, $30 million, and $35.5 million. SBA
established these eight receipts based size standard based on the
current minimum, the current maximum, and the most commonly used
current receipts based size standards. At the start of the current
comprehensive review, the most commonly used receipts based size
standards clustered around the following--$2.5 million to $4.5 million,
$7 million, $9 million to $10 million, $12.5 million to $14 million,
$25 million to $25.5 million, and $33.5 million to $35.5 million. SBA
selected $7 million as one of eight fixed levels of receipts based size
standards because it is an anchor standard. The lowest or minimum
receipts based size level will be $5 million. Other than the size
standards for NAICS Sector 11 that are set by statute and those based
on commissions (such as real estate brokers and travel agents), $5
million includes those industries with the lowest receipts based
standards, which ranged from $2 million to $4.5 million. Among the
higher level size clusters, SBA has set four fixed levels: $10 million,
$14 million, $25.5 million, and $35.5 million. Because of the large
intervals between some of the fixed levels, SBA established two
intermediate levels, namely $19 million between $14 million and $25.5
million, and $30 million between $25.5 million and $35.5 million. These
two intermediate levels reflect roughly the same proportional
differences as between the other two successive levels.
To simplify size standards further, SBA may propose a common size
standard for closely related industries. Although the size standard
analysis may support a separate size standard for each industry, SBA
believes that establishing different size standards for closely related
industries may not always be appropriate. For example, in cases where
many of the same businesses operate in the same multiple industries, a
common size standard for those industries might better reflect the
Federal marketplace. This might also make size standards among related
industries more consistent than separate size standards for each of
those industries. This led SBA to establish a common size standard for
the information technology (IT) services (NAICS 541511, NAICS 541112,
NAICS 541513, NAICS 541519, and NAICS 811212), even though the industry
data might support a distinct size standard for each industry (57 FR
27906 (June 23, 1992)). More recently SBA adopted common size standards
for some of the industries in NAICS Sector 54, Professional, Scientific
and Technical services (77 FR 7490 (February 10, 2012)) and NAICS
Sector 48-49, Transportation and Warehousing (77 FR 10943 (February 24,
2012)).
In NAICS Sector 11, currently all industries in NAICS Subsector 114
(Fishing, Hunting, and Trapping) and all industries (except for two
sub-industries under NAICS 115310) within NAICS Industry Subsector 115
(Support Activities for Agriculture and Forestry) have common size
standards. However, in this proposed rule, based on characteristics of
individual industries, SBA proposes different size standards for some
of the industries in those Subsectors. Whenever SBA proposes a common
size standard for closely related industries it will provide its
justification.
Evaluation of Industry Structure
SBA evaluated all industries and two sub-industries in NAICS Sector
11, Agriculture, Forestry, Fishing and Hunting, with the exceptions of
NAICS 113310 (Logging) and those industries for which their size
standards were determined by statute, to assess the appropriateness of
the current receipts based size standards. As described above, SBA
compared data on the economic characteristics of each industry to the
average characteristics of industries in two comparison groups. The
first comparison group consists of all industries with $7 million size
standards and is referred to as the ``receipts based anchor comparison
group.'' Because the goal of SBA's review is to assess whether a
specific industry's size standard should be the same as or different
from the anchor size standard, this is the most logical group of
industries to analyze. In addition, this group includes a sufficient
number of firms to provide a meaningful assessment and comparison of
industry characteristics.
If the characteristics of an industry are similar to the average
characteristics of industries in the anchor comparison group, the
anchor size standard is generally appropriate for that industry. If an
industry's structure is significantly different from industries in the
anchor group, a size standard lower or higher than the anchor size
standard might be appropriate. The proposed new size standard is based
on the difference between the characteristics of the anchor comparison
group and a second industry comparison group. As
[[Page 55760]]
described above, the second comparison group for receipts based
standards consists of industries with the highest receipts based size
standards, ranging from $23 million to $35.5 million. The average size
standard for this group is $29 million. SBA refers to this group of
industries as the ``higher level receipts based size standard
comparison group.'' SBA determines differences in industry structure
between an industry under review and the industries in the two
comparison groups by comparing data on each of the industry factors,
including average firm size, average assets size, the four-firm
concentration ratio, and the Gini coefficient of distribution of firms
by size. Table 1, Average Characteristics of Receipts Based Comparison
Groups, shows the average firm size (both simple and weighted), average
assets size, four-firm concentration ratio, average receipts of the
four largest firms, and the Gini coefficient for both anchor level and
higher level comparison groups for receipts based size standards.
Table 1--Average Characteristics of Receipts Based Comparison Groups
--------------------------------------------------------------------------------------------------------------------------------------------------------
Average firm size ($ million) Average
-------------------------------- Average Four[dash]firm receipts of
Receipts based comparison group assets size concentration four largest Gini
Simple Weighted ($ million) ratio (%) firms ($ coefficient
average average million) \*\
--------------------------------------------------------------------------------------------------------------------------------------------------------
Anchor Level............................................ 1.32 19.63 0.84 16.6 196.4 0.693
Higher Level............................................ 5.07 116.84 3.20 32.1 1,376.0 0.830
--------------------------------------------------------------------------------------------------------------------------------------------------------
* To be used for industries with a four-firm concentration ratio of 40% or greater.
Derivation of Size Standards Based on Industry Factors
For each industry factor in Table 1, Average Characteristics of
Receipts Based Comparison Groups, SBA derives a separate size standard
based on the differences between the values for an industry under
review and the values for the two comparison groups. If the industry
value for a particular factor is near the corresponding factor for the
anchor comparison group, the $7 million anchor size standard is
appropriate for that factor.
An industry factor significantly above or below the anchor
comparison group will generally imply a size standard for that industry
above or below the $7 million anchor. The new size standard in these
cases is based on the proportional difference between the industry
value and the values for the two comparison groups.
For example, if an industry's simple average receipts are $3.3
million, that can support a $19 million size standard. The $3.3 million
level is 52.8 percent between $1.32 million for the anchor comparison
group and $5.07 million for the higher level comparison group (($3.30
million - $1.32 million) / ($5.07 million - $1.32 million) = 0.528 or
52.8%). This proportional difference is applied to the difference
between the $7 million anchor size standard and average size standard
of $29 million for the higher level size standard group and then added
to $7.0 million to estimate a size standard of $18.61 million ([{$29.0
million - $7.0 million{time} * 0.528] + $7.0 million = $18.61
million). The final step is to round the estimated $18.61 million size
standard to the nearest fixed size standard, which in this example is
$19 million.
SBA applies the above calculation to derive a size standard for
each industry factor. Detailed formulas involved in these calculations
are presented in SBA's ``Size Standards Methodology'' which is
available on its Web site at www.sba.gov/size. (However, it should be
noted that figures in the ``Size Standards Methodology'' White Paper
are based on 2002 Economic Census data and are different from those
presented in this proposed rule. That is because when SBA prepared its
``Size Standards Methodology,'' the 2007 Economic Census data were not
yet available). Table 2, Values of Industry Factors and Supported Size
Standards below, shows ranges of values for each industry factor and
the levels of size standards supported by those values.
Table 2--Values of Industry Factors and Supported Size Standards
----------------------------------------------------------------------------------------------------------------
Or if average
Or if weighted Or if average receipts of Then implied
If simple average receipts average assets size ($ largest four Or if Gini size standard
size ($ million) receipts size million) firms ($ coefficient is ($
($ million) million) million)
----------------------------------------------------------------------------------------------------------------
<1.15....................... <15.22......... <0.73.......... <142.8......... <0.686......... 5.0
1.15 to 1.57................ 15.22 to 26.26. 0.73 to 1.00... 142.8 to 276.9. 0.686 to 0.702. 7.0
1.58 to 2.17................ 26.27 to 41.73. 1.01 to 1.37... 277.0 to 464.5. 0.703 to 0.724. 10.0
2.18 to 2.94................ 41.74 to 61.61. 1.38 to 1.86... 464.6 to 705.8. 0.725 to 0.752. 14.0
2.95 to 3.92................ 61.62 to 87.02. 1.87 to 2.48... 705.9 to 0.753 to 0.788. 19.0
1,014.1.
3.93 to 4.86................ 87.03 to 111.32 2.49 to 3.07... 1,014.2 to 0.789 to 0.822. 25.5
1,309.0.
4.87 to 5.71................ 111.33 to 3.08 to 3.61... 1,309.1 to 0.823 to 0.853. 30.0
133.41. 1,577.1.
>5.71....................... >133.41........ >3.61.......... >1,577.1....... >0.853......... 35.5
----------------------------------------------------------------------------------------------------------------
Derivation of Size Standard Based on Federal Contracting Factor
Besides industry structure, SBA also evaluates Federal contracting
data to assess the success of small businesses in getting Federal
contracts under the existing size standards. For industries where the
small business share of total Federal contracting dollars is 10 to 30
percent lower than the small business share of total industry receipts,
SBA has designated a size standard one level higher than their current
size standard. For industries where the small business share of total
Federal contracting dollars is more than 30 percent lower than the
small business share of total industry receipts, SBA has designated a
size standard two levels higher than the current size standard.
Because of the complex relationships among several variables
affecting small business participation in the Federal
[[Page 55761]]
marketplace, SBA has chosen not to designate a size standard for the
Federal contracting factor alone that is more than two levels above the
current size standard. SBA believes that a larger adjustment to size
standards based on Federal contracting activity should be based on a
more detailed analysis of the impact of any subsequent revision to the
current size standard. In limited situations, however, SBA may conduct
a more extensive examination of Federal contracting experience. This
may support a different size standard than indicated by this general
rule and take into consideration significant and unique aspects of
small business competitiveness in the Federal contract market. SBA
welcomes comments on its methodology for incorporating the Federal
contracting factor in its size standard analysis and suggestions for
alternative methods and other relevant information on small business
experience in the Federal contract market that SBA should consider.
Only one industry in NAICS Sector 11, NAICS 115310 (Support
Activities for Agriculture and Forestry), averaged $100 million or more
annually in Federal contracting during the period of fiscal years 2008-
2010. However, since the Federal contracting factor was not significant
(i.e., the difference between the small business share of total
industry receipts and small business share of Federal contracting
dollars was 10 percentage points or more), no size standard was
computed for that industry (including two sub-industries under it)
based on Federal contracting factor.
New Size Standards Based on Industry and Federal Contracting Factors
Table 3, Size Standards Supported by Each Factor for Each Industry
(millions of dollars), below, shows the results of analyses of industry
and Federal contracting factors for each industry covered by this
proposed rule. Many NAICS industries in columns 2, 3, 4, 6, and 7 show
two numbers. The upper number is the value for the industry factor
shown on the top of the column and the lower number is the size
standard supported by that factor. For the four-firm concentration
ratio, SBA estimates a size standard only if its value is 40 percent or
more. If the four-firm concentration ratio for an industry is less than
40 percent, SBA does not estimate a size standard for that factor. If
the four-firm concentration ratio is more than 40 percent, SBA
indicates in column 6 the average size of the industry's four largest
firms together with a size standard based on that average. As stated
earlier, since Federal contracting factor was not significant for any
of industries and sub-industries in NAICS Sector 11 that are reviewed
in this proposed rule, no size standard was estimated for that factor
in column 8. Column 9 shows a calculated new size standard for each
industry. This is the average of the size standards supported by each
factor, rounded to the nearest fixed size level. Analytical details
involved in the averaging procedure are described in SBA's ``Size
Standard Methodology.'' For comparison with the new standards, the
current size standards are in column 10 of Table 3.
Table 3--Size Standards Supported by Each Factor for Each Industry
[Millions of dollars]
--------------------------------------------------------------------------------------------------------------------------------------------------------
Simple Weighted Average Four-firm Calculated Current
average average assets size Four-firm average Gini Federal size size
NAICS code/NAICS industry title firm size firm size ($ ratio (%) size coefficient contract standard ($ standard ($
($ million) ($ million) million) ($million) factor (%) million) million)
(1) (2) (3) (4) (5) (6) (7) (8) (9) (10)
--------------------------------------------------------------------------------------------------------------------------------------------------------
112112............................ $1.0 $3.6 $0.6 3.7 $276.4 $0.732 ........... ........... ...........
Cattle Feedlots................... 5.0 5.0 5.0 ........... ........... 14.0 ........... 7.0 2.0
112310............................ 0.2 1.4 0.1 4.0 74.8 0.848 ........... ........... ...........
Chicken Egg Production............ 5.0 5.0 5.0 ........... ........... 30.0 ........... 14.0 12.5
113110............................ 1.8 9.1 1.7 24.0 45.6 0.726 ........... ........... ...........
Timber Tract Operations........... 10.0 5.0 14.0 ........... ........... 14.0 ........... 10.0 7.0
113210............................ 2.0 21.7 ........... 54.0 47.4 0.755 ........... ........... ...........
Forest Nurseries and Gathering of 10.0 7.0 ........... ........... 5.0 19.0 ........... 10.0 7.0
Forest Products..................
114111............................ 1.6 44.8 1.4 29.0 130.7 0.802 ........... ........... ...........
Finfish Fishing................... 10.0 14.0 14.0 ........... ........... 25.5 ........... 19.0 4.0
114112............................ 0.6 13.2 0.4 24.0 32.6 0.618 ........... ........... ...........
Shellfish Fishing................. 5.0 5.0 5.0 ........... ........... 5.0 ........... 5.0 4.0
114119............................ 2.9 9.3 ........... 88.0 9.0 0.573 ........... ........... ...........
Other Marine Fishing.............. 19.0 5.0 ........... ........... 5.0 5.0 ........... 7.0 4.0
114210............................ 0.7 17.2 ........... 48.0 27.1 0.661 ........... ........... ...........
Hunting and Trapping.............. 5.0 7.0 ........... ........... 5.0 5.0 ........... 5.0 4.0
115111............................ 2.2 5.1 1.9 12.0 17.1 0.498 ........... ........... ...........
Cotton Ginning.................... 14.0 5.0 19.0 ........... ........... 5.0 ........... 10.0 7.0
115112............................ 1.2 8.6 0.7 14.0 84.9 0.641 ........... ........... ...........
Soil Preparation, Planting, and 7.0 5.0 5.0 ........... ........... 5.0 ........... 5.0 7.0
Cultivating......................
115113............................ 1.5 8.4 0.7 19.0 21.2 0.689 ........... ........... ...........
Crop Harvesting, Primarily by 7.0 5.0 7.0 ........... ........... 7.0 ........... 7.0 7.0
Machine..........................
115114............................ 6.5 29.6 3.9 21.0 286.1 0.745 ........... ........... ...........
Postharvest Crop Activities 35.5 10.0 35.5 ........... ........... 14.0 ........... 25.5 7.0
(Except Cotton Ginning)..........
115115............................ 2.0 35.9 ........... 29.0 60.8 0.735 ........... ........... ...........
Farm Labor Contractors and Crew 10.0 10.0 ........... ........... ........... 14.0 ........... 14.0 7.0
Leaders..........................
115116............................ 1.0 7.7 ........... ........... ........... 0.682 ........... ........... ...........
Farm Management Services.......... 5.0 5.0 ........... ........... ........... 5.0 ........... 5.0 7.0
115210............................ 0.6 11.3 0.3 15.0 90.2 0.611 ........... ........... ...........
Support Activities for Animal 5.0 5.0 5.0 ........... ........... 5.0 ........... 5.0 7.0
Production.......................
115310............................ 0.9 8.4 ........... 18.0 66.2 0.672 ........... ........... ...........
Support Activities for Forestry... 5.0 5.0 ........... ........... ........... 5.0 ........... 5.0 7.0
Except,........................... 0.6 4.7 0.3 16.0 13.5 0.657 ........... ........... ...........
[[Page 55762]]
Forest Fire Suppression and Fuels 5.0 5.0 5.0 ........... ........... 5.0 ........... 5.0 17.5
Management Services..............
--------------------------------------------------------------------------------------------------------------------------------------------------------
Special Considerations: Forest Fire Suppression and Fuels Management
Services
The Forest Fire Suppression and Fuels Management Services are sub-
industry categories (or ``exceptions'') under NAICS 115310 (Support
Activities for Forestry) with a size standard of $17.5 million in
average annual receipts. In 2003, SBA established a different size
standard for these activities (see 68 FR 33348 (June 4, 2003)). Data
from the Census Bureau's and NASS' special tabulation are limited to
the 6-digit NAICS industry level, and hence, do not provide separate
data at the sub-industry level. As such, SBA relied upon data from
other sources to evaluate the current $17.5 million size standard for
both sub-industries.
Firms engaged in the Forest Fire Suppression and Fuels Management
Services sub-industries were identified from contracting activity
reported in FPDS-NG during fiscal years 2008-2010. The contracts for
Forest Fire Suppression and Fuels Management Services can be identified
as those classified within NAICS 115310 and by the Product Service Code
(PSCs) F003 (Natural Resources/Conservation- Forest-Range Fire
Suppression/Presuppression). SBA also looked at contract data from the
USDA Forest Service National Interagency Fire Center (http://www.fs.fed.us/fire/contracting/and http://www.fs.fed.us/business/incident/vipr.php). Finally, SBA evaluated the description of the
requirements of the contracts for the Forest Fire Suppression and Fuels
Management Services in FPDS-NG, which allowed the Agency to identify
principal activities related to forest fire suppression and fuel
management services and to differentiate them from other supporting
activities. SBA identified activities associated with specialized
crews, equipment and engines with trained personnel that are critical
to perform the tasks of suppressing or managing fires as principal
activities and other activities, such as leases of equipment, machinery
and transportation vehicles, or provision of services that do not
require specialize personnel or special training as supporting
activities. Since most firms involved in Fire Suppression Services were
also found to be involved in Fuel Management Services and vice versa,
SBA analyzed them together as one group.
Finally, SBA obtained receipts and employment data for the fiscal
years 2008-2010 from the Central Contractor Registration (CCR) for the
firms that it identified from the FPDS-NG to develop the size standards
evaluation factors. Table 3, Size Standards Supported by Each Factor
for Each Industry (millions of dollars), above, shows the results from
the analysis of these sub-industries, which supported a $5.0 million
size standard as compared to the current $17.5 million. SBA believes
that the results reflect decreases in numbers of forest fires and
consequent reductions in payments (revenues) to contractors during
fiscal years 2008-2010 as compared to prior years. Given the inherent
uncertainty of occurrences of forest fires, SBA believes that
contracting officers need flexibility to hire small businesses,
especially in the worst case scenario. In a very active fire season,
size of payments can easily support the $17.5 million size standard for
Fire Suppression Services. With this reality in mind, SBA proposes to
retain the current $17.5 size standard and seeks comments on this
proposal.
Evaluation of SBA's Loan Data
Before deciding on an industry's size standard, SBA also considers
the impact of new or revised size standards on its loan programs.
Accordingly, SBA examined its 7(a) and 504 Loan Programs data for
fiscal years 2008-2010 to assess whether the proposed size standards
need further adjustments to ensure credit opportunities for small
businesses through those programs. For the industries reviewed in this
rule, the data showed that it is mostly businesses much smaller than
the current size standards that use SBA's 7(a) and 504 loans.
Furthermore, the Jobs Act established an alternative size standard
for SBA's 7(a) and 504 Loan Programs. Specifically, an applicant
exceeding an NAICS industry size standard may still be eligible if its
maximum tangible net worth does not exceed $15 million and its average
net income after Federal income taxes (excluding any carry-over losses)
for the 2 full fiscal years before the date of the application is not
more than $5 million.
Therefore, no size standard in NAICS Sector 11, Agriculture,
Forestry, Fishing and Hunting reviewed in this proposed rule, needs an
adjustment based on this factor.
Proposed Changes to Size Standards
Table 4, Summary of Size Standards Analysis, below, summarizes the
results of SBA's analyses from Table 3, Size Standards Supported by
Each Factor for Each Industry (millions of dollars). The results might
support increases in size standards for 11 industries, decreases for
four industries and two sub-industries and no change for one industry.
Table 4--Summary of Size Standards Analysis
----------------------------------------------------------------------------------------------------------------
Current size Calculated size
NAICS Code NAICS Industry title standard ($ standard ($
million) million)
----------------------------------------------------------------------------------------------------------------
112112.................................. Cattle Feedlots................... $2.0 $7.0
1123106................................. Chicken Egg Production............ 12.5 14.0
113110s................................. Timber Tract Operations........... 7.0 10.0
[[Page 55763]]
113210.................................. Forest Nurseries and Gathering of 7.0 10.0
Forest Products.
114111.................................. Finfish Fishing................... 4.0 19.0
114112.................................. Shellfish Fishing................. 4.0 5.0
114119.................................. Other Marine Fishing.............. 4.0 7.0
114210.................................. Hunting and Trapping.............. 4.0 5.0
115111.................................. Cotton Ginning.................... 7.0 10.0
115112.................................. Soil Preparation, Planting, and 7.0 5.0
Cultivating.
115113.................................. Crop Harvesting, Primarily by 7.0 7.0
Machine.
115114.................................. Postharvest Crop Activities 7.0 25.5
(Except Cotton Ginning).
115115.................................. Farm Labor Contractors and Crew 7.0 14.0
Leaders.
115116.................................. Farm Management Services.......... 7.0 5.0
115210.................................. Support Activities for Animal 7.0 5.0
Production.
115310.................................. Support Activities for Forestry... 7.0 5.0
Except,................................. Forest Fire Suppression........... 17.5 5.0
Except,................................. Fuels Management Services......... 17.5 5.0
----------------------------------------------------------------------------------------------------------------
However, SBA believes that lowering small business size standards
is not in the best interest of small businesses in the current economic
environment. The U.S. economy was in recession from December 2007 to
June 2009, the longest and deepest of any recessions since before World
War II. The economy lost more than eight million non-farm jobs during
2008-2009. In response, Congress passed and the President signed into
law the American Recovery and Reinvestment Act of 2009 (Recovery Act)
to promote economic recovery and to preserve and create jobs. Although
the recession officially ended in June 2009, the unemployment rate is
still high at 8.2 percent in June 2012 and is forecast to remain around
this level at least through the end of 2012. In addition, the
unemployment rate by industry and class of worker in June 2012 showed
the agricultural workers facing one of the worst unemployment rates
(8.4%) in the Nation.
Recently, Congress passed and the President signed the Jobs Act to
promote small business job creation. The Jobs Act puts more capital
into the hands of entrepreneurs and small business owners; strengthens
small businesses' ability to compete for contracts; includes
recommendations from the President's Task Force on Federal Contracting
Opportunities for Small Business; creates a better playing field for
small businesses; promotes small business exporting, building on the
President's National Export Initiative; expands training and
counseling; and provides $12 billion in tax relief to help small
businesses invest in their firms and create jobs. A proposal to reduce
size standards will have an immediate impact on jobs, and it would be
contrary to the expressed will of the President and the Congress.
Lowering size standards would decrease the number of firms that
participate in Federal financial and procurement assistance programs
for small businesses. It would also affect small businesses that are
now exempt or receive some form of relief from other Federal
regulations that use SBA's size standards. That impact could take the
form of increased fees, paperwork, or other compliance requirements for
small businesses. Furthermore, size standards based solely on
analytical results without any other considerations can cut off
currently eligible small firms from those programs and benefits. In
industries and sub-industries reviewed in this proposed rule, about 70
businesses would lose their small business eligibility if size
standards were lowered based solely on analytical results. That would
run counter to what SBA and the Federal government are doing to help
small businesses and create jobs. Reducing size eligibility for Federal
procurement opportunities, especially under current economic
conditions, would not preserve or create more jobs; rather, it would
have the opposite effect. Therefore, in this proposed rule, SBA does
not intend to reduce size standards for any industries. Accordingly,
for industries where analyses might seem to support lowering size
standards, SBA proposes to retain the current size standards.
Furthermore, as stated previously, the Small Business Act requires
the SBA's Administrator to ``* * * consider other factors deemed to be
relevant * * *'' to establishing small business size standards. The
current economic conditions and the impact on job creation are quite
relevant factors when establishing small business size standards. SBA
nevertheless invites comments and suggestions on whether it should
lower size standards as suggested by analyses of industry and program
data or retain the current standards for those industries in view of
current economic conditions.
As discussed above, lowering small business size standards is
inconsistent with what the Federal government is doing to stimulate the
economy and would discourage job growth for which Congress established
the Recovery Act and Jobs Act. In addition, it would be inconsistent
with the Small Business Act requiring the Administrator to establish
size standards based on industry analysis and other relevant factors
such as current economic conditions. Thus, SBA proposes to increase
size standards for 10 industries and retain the current size standards
for six industries and two sub-industries in NAICS Sector 11 that are
reviewed in this rule. The SBA's proposed increases are in Table 5,
Summary of Proposed Size Standards Revisions, below.
In addition, retaining current standards when the analytical
results suggested lowering them is consistent with SBA's prior actions
for NAICS Sector 44-45 (Retail Trade), NAICS Sector 72 (Accommodation
and Food Services), and NAICS Sector 81 (Other Services) that the
Agency proposed (74 FR 53924, 74 FR 53913, and 74 FR 53941, October 21,
2009) and adopted in its final rules (75 FR 61597, 75 FR 61604, and 75
FR 61591, October 6, 2010). It is also consistent with the Agency'
recently published proposed rule (76 FR 14323 (March 16, 2011)) and
final rule (77 FR 7490 (February 10, 2012)) for NAICS Sector 54,
Professional, Technical, and Scientific Services, propose rule (76 FR
27935 (May 13, 2011)) and final rule (77 FR 10943 (February 24, 2012))
for NAICS Sector 48-49, Transportation and
[[Page 55764]]
Warehousing, and proposed rules for NAICS Sector 51, Information (76 FR
63216 (October 12, 2011)), NAICS Sector 56, Administrative and Support,
Waste Management and Remediation Services (76 FR 63510 (October 12,
2011)), NAICS Sector 61, Educational Services (76 FR 70667 (November
15, 2011)), NAICS Sector 53, Real Estate and Rental and Leasing (76 FR
70680 (November 15, 2011)), NAICS Sector 62, Health Care and Social
Assistance (77 FR 11001 (February 24, 2012)), NAICS Sector 71, Arts,
Entertainment and Recreation (forthcoming), and NAICS Sector 23,
Construction (forthcoming). In each of those final and proposed rules,
SBA opted not to reduce small business size standards, for the same
reasons it has provided above in this proposed rule.
Table 5--Summary of Proposed Size Standards Revisions
----------------------------------------------------------------------------------------------------------------
Current size Proposed size
NAICS Code NAICS Industry title standard ($ standard ($
million) million)
----------------------------------------------------------------------------------------------------------------
112112.................................. Cattle Feedlots................... $2.0 $7.0
112310.................................. Chicken Egg Production............ 12.5 14.0
113110.................................. Timber tract Operations........... 7.0 10.0
113210.................................. Forest Nurseries and Gathering of 7.0 10.0
Forest products.
114111.................................. Finfish Fishing................... 4.0 19.0
114112.................................. Shellfish Fishing................. 4.0 5.0
114119.................................. Other Marine Fishing.............. 4.0 7.0
114210.................................. Hunting and trapping.............. 4.0 5.0
115111.................................. Cotton Ginning.................... 7.0 10.0
115114.................................. Postharvest Crop Activities 7.0 25.5
(Except Cotton Ginning).
115115.................................. Farm Labor Contractors and Crew 7.0 14.0
Leaders.
----------------------------------------------------------------------------------------------------------------
Evaluation of Dominance in Field of Operation
SBA has determined that for the industries in NAICS Sector 11,
Agriculture, Forestry, Fishing and Hunting, for which it has proposed
to increase size standards in this proposed rule, no individual firm at
or below the proposed size standard will be large enough to dominate
its field of operation. At the proposed size standards, if adopted, the
small business share of total industry receipts among those industries
is, in average, 2.9 percent, with an interval showing a minimum of 0.02
percent to a maximum of 17.0 percent. These market shares effectively
preclude a firm at or below the proposed size standards from exerting
control on any of the industries.
Request for Comments
SBA invites public comments on this proposed rule, especially on
the following issues:
1. To simplify size standards, SBA proposes eight fixed levels for
receipts based size standards: $5 million, $7 million, $10 million, $14
million, $19 million, $25.5 million, $30 million, and $35.5 million.
SBA invites comments on whether this is necessary and whether the
proposed fixed size levels are appropriate. SBA welcomes suggestions on
alternative approaches to simplifying small business size standards.
2. SBA seeks feedback on whether SBA's proposal to increase size
standards for 11 industries and retain current size standards for five
industries and two sub-industries (within NAICS 115310, Support
Activities for Forestry) within NAICS Sector 11 is appropriate, given
the economic characteristics of each industry reviewed in this proposed
rule. SBA also seeks feedback and suggestions on alternative standards,
if they would be more appropriate, including whether the number of
employees is a more suitable measure of size for certain industries and
what that employee level should be.
3. SBA has proposed to retain the current size standards for four
industries and two sub-industries for which its analysis would support
lowering them. SBA seeks comments on whether SBA should lower them
solely based on its analysis or retain them at their current levels in
view of current economic conditions.
4. SBA's proposed size standards are based on five primary
factors--average firm size, average assets size (as a proxy of startup
costs and entry barriers), four-firm concentration ratio, distribution
of firms by size and, the level and small business share of Federal
contracting dollars of the evaluated industries. SBA welcomes comments
on these factors and/or suggestions on other factors that it should
consider when evaluating or revising size standards. SBA also seeks
information on relevant data sources, other than what it uses, if
available.
5. SBA gives equal weight to each of the five primary factors in
all industries. SBA seeks feedback on whether it should continue giving
equal weight to each factor or whether it should give more weight to
one or more factors for certain industries. Recommendations to weigh
some factors more than others should include suggested weights for each
factor along with supporting information.
6. For analyzing the Forest Fire Suppression and Fuel Management
Services size standard, two sub-industries (``exception'') within NAICS
115310, SBA used PSC F003 within NAICS 115310 to identify contracting
activity reported in FPDS-NG, and firms in the Forest Fire Suppression
and Fuel Management Services sub-industry during fiscal years 2008-
2010. Using the receipts and employment data for those identified firms
from CCR, SBA analyzed the industry factors for these sub-industries.
SBA seeks suggestions or comments on the use of the data sources and
its proposal to retain the current $17.5 million size standard for them
even if the analysis supported lowering it to $5 million. SBA is also
interested in comments on the elimination of the Forest Fire
Suppression and Fuel Management Services as ``exceptions'' to NAICS
115310, and the application of the same size standard for them as for
the rest of NAICS 115310. Comments on applying the same NAICS 115310
size standard for Forest Fire Suppression and Fuel Management Services
should address why the same size standard is more suitable than
separate size standards for Forest Fire Suppression and Fuel management
Services sub-industry size standard or why Forest Fire Suppression and
Fuel management Services firms should continue to be treated as
separate activities from the rest of NAICS 115310 for SBA's size
standards purposes.
7. For analytical simplicity and efficiency, in this proposed rule,
SBA has refined its size standard
[[Page 55765]]
methodology to obtain a single value as a proposed size standard
instead of a range of values, as in its past size regulations. SBA
welcomes any comments on this procedure and suggestions on alternative
methods.
Public comments on the above issues are very valuable to SBA for
validating its size standard methodology and its proposed size
standards revisions in this proposed rule. This will help SBA to move
forward with its review of size standards for other NAICS Sectors.
Commenters addressing size standards for a specific industry or a group
of industries should include relevant data and/or other information
supporting their comments. If comments relate to using size standards
for Federal procurement programs, SBA suggests that commenters provide
information on the size of contracts in their industries, the size of
businesses that can undertake the contracts, start-up costs, equipment
and other asset requirements, the amount of subcontracting, other
direct and indirect costs associated with the contracts, the use of
mandatory sources of supply for products and services, and the degree
to which contractors can mark up those costs.
Compliance With Executive Orders 12866, 13563, 12988 and 13132, the
Paperwork Reduction Act (44 U.S.C. Ch. 35) and the Regulatory
Flexibility Act (5 U.S.C. 601-612)
Executive Order 12866
The Office of Management and Budget (OMB) has determined that this
proposed rule is not a ``significant regulatory action'' for purposes
of Executive Order 12866. In order to help explain the need of this
rule and the rule's potential benefits and costs, SBA is providing a
Cost Benefit Analysis in this section of the rule. This is also not a
``major rule'' under the Congressional Review Act, 5 U.S.C. 800.
Cost Benefit Analysis
1. Is there a need for the regulatory action?
SBA believes that proposed size standards revisions in NAICS Sector
11, Agriculture, Forestry, Fishing and Hunting, will better reflect the
economic characteristics of small businesses in this Sector and the
Federal government marketplace. SBA's mission is to aid and assist
small businesses through a variety of financial, procurement, business
development, and advocacy programs. To determine the intended
beneficiaries of these programs, SBA establishes distinct definitions
of which businesses are deemed small businesses. The Small Business Act
(15 U.S.C. 632(a)) delegates to SBA's Administrator the responsibility
for establishing small business definitions. The Act also requires that
small business definitions vary to reflect industry differences. The
recently enacted Jobs Act also requires SBA to review all size
standards and make necessary adjustments to reflect market conditions.
The supplementary information section of this proposed rule explains
SBA's methodology for analyzing a size standard for a particular
industry.
2. What are the potential benefits and costs of this regulatory action?
The most significant benefit to businesses obtaining small business
status because of this proposed rule is gaining or retaining
eligibility for Federal small business assistance programs. These
include SBA's financial assistance programs, economic injury disaster
loans, and Federal procurement programs intended for small businesses.
Federal procurement programs provide targeted opportunities for small
businesses under SBA's business development programs, such as 8(a),
Small Disadvantaged Businesses (SDB), small businesses located in
Historically Underutilized Business Zones (HUBZone), women-owned small
businesses (WOSB), and service-disabled veteran-owned small businesses
(SDVOSB). Federal agencies may also use SBA's size standards for a
variety of other regulatory and program purposes. These programs assist
small businesses to become more knowledgeable, stable, and competitive.
SBA estimates that in 11 industries in NAICS Sector 11 for which it has
proposed to increase size standards more than 7,500 firms, not small
under the existing size standards, will become small under the proposed
size standards and therefore become eligible for these programs. That
is about 17 percent of all firms classified as small under the current
size standards in all industries reviewed in this proposed rule. If
adopted as proposed, this will increase the small business share of
total receipts in those industries from 78.4 percent to 79.1 percent.
Three groups will benefit from the proposed size standards
revisions in this rule, if they are adopted as proposed: (1) Some
businesses that are above the current size standards may gain small
business status under the higher size standards, thereby enabling them
to participate in Federal small business assistance programs; (2)
growing small businesses that are close to exceeding the current size
standards will be able to retain their small business status under the
higher size standards, thereby enabling them to continue their
participation in the programs; and (3) Federal agencies will have a
larger pool of small businesses from which to draw for their small
business procurement programs.
SBA estimates that firms gaining small business status under the
proposed size standards could receive Federal contracts totaling $7
million to $12 million annually under SBA's small business, 8(a), SDB,
HUBZone, WOSB, and SDVOSB Programs, and other unrestricted
procurements. The added competition for many of these procurements can
also result in lower prices to the Government for procurements reserved
for small businesses, but SBA cannot quantify this benefit.
Under SBA's 7(a) and 504 Loan Programs, based on the fiscal years
2008-2010 data, SBA estimates up to about 32 SBA's 7(a) and 504 loans
totaling about $7.0 million could be made to these newly defined small
businesses under the proposed size standards. Increasing the size
standards will likely result in more small business guaranteed loans to
businesses in these industries, but it is be impractical to try to
estimate exactly the number and total amount of loans. There are two
reasons for this: (1) under the Jobs Act, SBA can now guarantee
substantially larger loans than in the past; and (2) as described
above, the Jobs Act established a higher alternative size standard ($15
million in tangible net worth and $5 million in net income after income
taxes) for business concerns that do not meet the size standards for
their industry. Therefore, SBA finds it difficult to quantify the
actual impact of these proposed size standards on its 7(a) and 504 Loan
Programs.
Newly defined small businesses will also benefit from SBA's
Economic Injury Disaster Loan (EIDL) Program. Since this program is
contingent on the occurrence and severity of a disaster in the future,
SBA cannot make a meaningful estimate of this impact.
In addition, newly defined small businesses will also benefit
through reduced fees, less paperwork, and fewer compliance requirements
that are available to small businesses through Federal government.
To the extent that those 7,500 newly defined additional small firms
could become active in Federal procurement programs, the proposed
changes to size standards, if adopted, may entail some additional
administrative costs to the government as a result of more businesses
being eligible for Federal small business programs. For example, there
will be more firms seeking SBA's
[[Page 55766]]
guaranteed loans, more firms eligible for enrollment in the Central
Contractor Registration (CCR)'s Dynamic Small Business Search database,
and more firms seeking certification as 8(a) or HUBZone firms or
qualifying for small business, WOSB, SDVOSB, and SDB status. Among
those newly defined small businesses seeking SBA's assistance, there
could be some additional costs associated with compliance and
verification of small business status and protests of small business
status. However, SBA believes that these added administrative costs
will be minimal because mechanisms are already in place to handle these
requirements.
Additionally, Federal government contracts may have higher costs.
With a greater number of businesses defined as small, Federal agencies
may choose to set aside more contracts for competition among small
businesses only rather than using full and open competition. The
movement from unrestricted to small business set-aside contracting
might result in competition among fewer total bidders, although there
will be more small businesses eligible to submit offers. However, the
additional costs associated with fewer bidders are expected to be minor
since, by law, procurements may be set aside for small businesses or
reserved for the 8(a), HUBZone, WOSB, or SDVOSB Programs only if awards
are expected to be made at fair and reasonable prices. In addition,
there may be higher costs when more full and open contracts are awarded
to HUBZone businesses that receive price evaluation preferences.
The proposed size standards revisions, if adopted, may have some
distributional effects among large and small businesses. Although SBA
cannot estimate with certainty the actual outcome of the gains and
losses among small and large businesses, it can identify several
probable impacts. There may be a transfer of some Federal contracts to
small businesses from large businesses. Large businesses may have fewer
Federal contract opportunities as Federal agencies decide to set aside
more contracts for small businesses. In addition, some Federal
contracts may be awarded to HUBZone concerns instead of large
businesses since these firms may be eligible for a price evaluation
preference for contracts when they compete on a full and open basis.
Similarly, some businesses defined small under the current size
standards may obtain fewer Federal contracts due to the increased
competition from more businesses defined as small under the proposed
size standards. This transfer may be offset by a greater number of
Federal procurements set aside for all small businesses. The number of
newly defined and expanding small businesses that are willing and able
to sell to the Federal Government will limit the potential transfer of
contracts from large and currently defined small businesses. SBA cannot
estimate the potential distributional impacts of these transfers with
any degree of precision.
The proposed revisions to the existing size standards for 11
industries in NAICS Sector 11, Agriculture, Forestry, Fishing and
Hunting, are consistent with SBA's statutory mandate to assist small
business. This regulatory action promotes the Administration's
objectives. One of SBA's goals in support of the Administration's
objectives is to help individual small businesses succeed through fair
and equitable access to capital and credit, Government contracts, and
management and technical assistance. Reviewing and modifying size
standards, when appropriate, ensures that intended beneficiaries have
access to small business programs designed to assist them.
Executive Order 13563
Descriptions of the need for this regulatory action and benefits
and costs associated with this action including possible distributional
impacts that relate to Executive Order 13563 are included above in the
Cost Benefit Analysis under Executive Order 12866.
In an effort to engage interested parties in this action, SBA has
presented its size standards methodology (discussed above under
SUPPLEMENTARY INFORMATION) to various industry associations and trade
groups. SBA also met with a number of industry groups and individual
businesses to get their feedback on its methodology and other size
standards issues. In addition, SBA presented its size standards
methodology to businesses in 13 cities in the U.S. and sought their
input as part of Jobs Act tours. The presentation also included
information on the latest status of the comprehensive size standards
review and on how interested parties can provide SBA with input and
feedback on size standards review.
Additionally, SBA sent letters to the Directors of the Offices of
Small and Disadvantaged Business Utilization (OSDBU) at several Federal
agencies with considerable procurement responsibilities requesting
their feedback on how the agencies use SBA's size standards and whether
current size standards meet their programmatic needs (both procurement
and non-procurement). SBA gave appropriate consideration to all input,
suggestions, recommendations, and relevant information obtained from
industry groups, individual businesses, and Federal agencies in
preparing this proposed rule.
The review of size standards in NAICS Sector 11, Agriculture,
Forestry, Fishing and Hunting, is consistent with Executive Order
13563, Section 6, calling for retrospective analyses of existing rules.
The last comprehensive review of size standards occurred during the
late 1970s and early 1980s. Since then, except for periodic adjustments
for monetary based size standards, most reviews of size standards were
limited to a few specific industries in response to requests from the
public and Federal agencies. SBA recognizes that changes in industry
structure and the Federal marketplace over time have rendered existing
size standards for some industries no longer supportable by current
data. Accordingly, in 2007, SBA began a comprehensive review of its
size standards to ensure that existing size standards have supportable
bases and to revise them when necessary. In addition, the Jobs Act
requires SBA to conduct a detailed review of all size standards and to
make appropriate adjustments to reflect market conditions.
Specifically, the Jobs Act requires SBA to conduct a detailed review of
at least one-third of all size standards during every 18-month period
from the date of its enactment and do a complete review of all size
standards not less frequently than once every 5 years thereafter.
Executive Order 12988
This action meets applicable standards set forth in Sections 3(a)
and 3(b)(2) of Executive Order 12988, Civil Justice Reform, to minimize
litigation, eliminate ambiguity, and reduce burden. The action does not
have retroactive or preemptive effect.
Executive Order 13132
For purposes of Executive Order 13132, SBA has determined that this
proposed rule will not have substantial, direct effects on the States,
on the relationship between the national government and the States, or
on the distribution of power and responsibilities among the various
levels of government. Therefore, SBA has determined that this proposed
rule has no federalism implications warranting preparation of a
federalism assessment.
Paperwork Reduction Act
For the purpose of the Paperwork Reduction Act, 44 U.S.C. Ch. 35,
SBA
[[Page 55767]]
has determined that this proposed rule will not impose any new
reporting or record keeping requirements.
Initial Regulatory Flexibility Analysis
Under the Regulatory Flexibility Act (RFA), this proposed rule, if
adopted, may have a significant impact on a substantial number of small
businesses in NAICS Sector 11, Agriculture, Forestry, Fishing and
Hunting. As described above, this rule may affect small businesses
seeking Federal contracts, loans under SBA's 7(a), 504 and Economic
Injury Disaster Loan Programs, and assistance under other Federal small
business programs.
Immediately below, SBA sets forth an initial regulatory flexibility
analysis (IRFA) of this proposed rule addressing the following
questions: (1) What are the need for and objective of the rule? (2)
What are SBA's description and estimate of the number of small
businesses to which the rule will apply? (3) What are the projected
reporting, record keeping, and other compliance requirements of the
rule? (4) What are the relevant Federal rules that may duplicate,
overlap, or conflict with the rule? and (5) What alternatives will
allow the Agency to accomplish its regulatory objectives while
minimizing the impact on small businesses?
1. What are the need for and objective of the rule?
Changes in industry structure, technological changes, productivity
growth, mergers and acquisitions, and updated industry definitions have
changed the structure of many industries in NAICS Sector 11. Such
changes can be sufficient to support revisions to current size
standards for some industries. Based on the analysis of the latest data
available, SBA believes that the revised standards in this proposed
rule more appropriately reflect the size of businesses that need
Federal assistance. The recently enacted Jobs Act also requires SBA to
review all size standards and make necessary adjustments to reflect
market conditions.
2. What are SBA's description and estimate of the number of small
businesses to which the rule will apply?
If the proposed rule is adopted in its present form, SBA estimates
that more than 7,500 additional firms will become small because of
increased size standards seven industries in NAICS Sector 11. That
represents 17 percent of total firms that are small under current size
standards in all industries reviewed by SBA within that Sector. This
will result in an increase in the small business share of total
industry receipts for the Sector from 78.4 percent under the current
size standards to 79.1 percent under the proposed size standards. The
proposed size standards, if adopted, will enable more small businesses
to retain their small business status for a longer period. Many firms
may have lost their eligibility and find it difficult to compete at
current size standards with companies that are significantly larger
than they are. SBA believes the competitive impact will be positive for
existing small businesses and for those that exceed the size standards
but are on the very low end of those that are not small. They might
otherwise be called or referred to as mid-sized businesses, although
SBA only defines what is small; other entities are other than small.
3. What are the projected reporting, record keeping and other
compliance requirements of the rule?
The proposed size standard changes impose no additional reporting
or record keeping requirements on small businesses. However, qualifying
for Federal procurement and a number of other programs requires that
businesses register in the CCR database and certify in the Online
Representations and Certifications Application (ORCA) that they are
small at least once annually. Therefore, businesses opting to
participate in those programs must comply with CCR and ORCA
requirements. However, there are no costs associated with either CCR
registration or ORCA certification. Changing size standards alters the
access to SBA's programs that assist small businesses, but does not
impose a regulatory burden because they neither regulate nor control
business behavior.
4. What are the relevant Federal rules, which may duplicate, overlap or
conflict with the rule?
Under Sec. 3(a)(2)(C) of the Small Business Act, 15 U.S.C.
632(a)(2)(c), Federal agencies must use SBA's size standards to define
a small business, unless specifically authorized by statute to do
otherwise. In 1995, SBA published in the Federal Register a list of
statutory and regulatory size standards that identified the application
of SBA's size standards as well as other size standards used by Federal
agencies (60 FR 57988 (November 24, 1995)). SBA is not aware of any
Federal rule that would duplicate or conflict with establishing size
standards.
However, the Small Business Act and SBA's regulations allow Federal
agencies to develop different size standards if they believe that SBA's
size standards are not appropriate for their programs, with the
approval of SBA's Administrator (13 CFR 121.903). The Regulatory
Flexibility Act authorizes an Agency to establish an alternative small
business definition, after consultation with the Office of Advocacy of
the U.S. Small Business Administration (5 U.S.C. 601(3)).
5. What alternatives will allow the Agency to accomplish its regulatory
objectives while minimizing the impact on small entities?
By law, SBA is required to develop numerical size standards for
establishing eligibility for Federal small business assistance
programs. Other than varying size standards by industry and changing
the size measures, no practical alternative exists to the systems of
numerical size standards.
List of Subjects in 13 CFR Part 121
Administrative practice and procedure, Government procurement,
Government property, Grant programs--business, Individuals with
disabilities, Loan programs--business, Reporting and recordkeeping
requirements, Small businesses.
For the reasons set forth in the preamble, SBA proposes to amend
part 13 CFR part 121 as follows:
PART 121--SMALL BUSINESS SIZE REGULATIONS
1. The authority citation for Part 121 continues to read as
follows:
Authority: 15 U.S.C. 632, 634(b)(6), 636(b), 662, and 694a(9).
2. In Sec. 121.201, in the table, revise the entries for
``112112'', ``112310'', ``113110'', ``113210'', ``114111'', ``114112'',
``114119'', ``114210'', ``115111'', ``115114'', and ``115115'' to read
as follows:
Sec. 121.201 What size standards has SBA identified by North American
Industry Classification System codes?
* * * * *
[[Page 55768]]
Small Business Size Standards by NAICS Industry
----------------------------------------------------------------------------------------------------------------
Size standards Size standards
NAICS Codes NAICS U.S. industry title in millions of in number of
dollars employees
----------------------------------------------------------------------------------------------------------------
* * * * * * *
112112.................................. Cattle Feedlots................... $7.0 ................
* * * * * * *
112310.................................. Chicken Egg Production............ 14.0 ................
* * * * * * *
113110.................................. Timber Tract Operations........... 10.0 ................
113210.................................. Forest Nurseries and Gathering of 10.0
Forest Products.
* * * * * * *
114111.................................. Finfish Fishing................... 19.0 ................
114112.................................. Shellfish Fishing................. 5.0 ................
114119.................................. Other Marine Fishing.............. 7.0 ................
114210.................................. Hunting and Trapping.............. 5.0 ................
115111.................................. Cotton Ginning.................... 10.0 ................
* * * * * * *
115114.................................. Postharvest Crop Activities 25.5 ................
(except Cotton Ginning).
115115.................................. Farm Labor Contractors and Crew 14.0 ................
Leaders.
* * * * * * *
----------------------------------------------------------------------------------------------------------------
* * * * *
Dated: June 22, 2012.
Karen G. Mills,
Administrator.
[FR Doc. 2012-22259 Filed 9-10-12; 8:45 am]
BILLING CODE 8025-01-P