81 FR 71981 - Small Business Mentor Protégé Programs; Correction
SMALL BUSINESS ADMINISTRATION Federal Register Volume 81, Issue 202 (October 19, 2016)
Federal Register Volume 81, Issue 202 (October 19, 2016)
| Page Range | 71981-71983 | |
| FR Document | 2016-25080 |
[Federal Register Volume 81, Number 202 (Wednesday, October 19, 2016)] [Rules and Regulations] [Pages 71981-71983] From the Federal Register Online [www.thefederalregister.org] [FR Doc No: 2016-25080] ======================================================================= ----------------------------------------------------------------------- SMALL BUSINESS ADMINISTRATION 13 CFR Parts 121, 124, and 126 RIN 3245-AG24 Small Business Mentor Prot[eacute]g[eacute] Programs; Correction AGENCY: U.S. Small Business Administration. ACTION: Correcting amendments. ----------------------------------------------------------------------- SUMMARY: The U.S. Small Business Administration (SBA) published a final rule in the Federal Register on July 25, 2016 (81 FR 48557), amending its regulations to establish a new Government-wide mentor- prot[eacute]g[eacute] program for all small business concerns, consistent with SBA's mentor-prot[eacute]g[eacute] program for Participants in SBA's 8(a) Business Development (BD) program. The rule also made several additional changes to current size, 8(a), Office of Hearings and Appeals, and HUBZone regulations, concerning among other things, ownership and control, changes in primary industry, economic disadvantage of a Native Hawaiian Organization (NHO), standards of review, and interested party status for some appeals. This document makes several technical corrections to that final rule, including correcting citations, eliminating a paragraph that conflicts with a new provision added by that final rule, and making conforming amendments. DATES: Effective October 19, 2016. FOR FURTHER INFORMATION CONTACT: Michael McLaughlin, Office of Policy, Planning & Liaison, U.S. Small Business Administration, 409 Third Street SW., Washington, DC 20416; 202-205-5353; [email protected]. SUPPLEMENTARY INFORMATION: The final rule published on July 25, 2016, at 81 FR 48557, contained several errors, [[Page 71982]] including inadvertent oversights and omissions that must be corrected in order to ensure consistency within the regulations and to avoid public uncertainty or confusion. First, a correction is needed because the amendment in instruction 5 on page 48579, column one, should have also applied to Sec. 121.702(b)(1)(i), not just paragraph (a)(1). Specifically, the instruction should have read: ``Amend Sec. Sec. 121.702(a)(1)(i) and (b)(1)(i) by adding the words `an Indian tribe, ANC or NHO (or a wholly owned entity of such tribe, ANC or NHO),' before the words `or any combination of these.' '' The final rule amended the requirements for the Small Business Innovation Research (SBIR) Program to specifically recognize that a small business concern owned and controlled by an Indian tribe, Alaska Native Corporation (ANC) or a Native Hawaiian Organization (NHO) may be eligible to participate in the SBIR Program. Historically, the eligibility requirements for the SBIR Program have been consistent with those for SBA's Small Business Technology Transfer (STTR) Program. While the final rule amended the eligibility requirements for the SBIR Program in Sec. 124.702(a)(1)(i), it inadvertently did not make the same corresponding change to the STTR Program. As such, this correction is necessary to add that same clarifying language to the STTR eligibility requirements as that added to the SBIR requirements. Second, a correction is needed to delete Sec. 124.110(g)(2). After this correction, a corresponding correction to the numbering also needs to occur that would eliminate paragraph (g)(1) as a separate paragraph and move the substance of paragraph (g)(1) to the end of the introductory text of paragraph (g). In response to public comment, SBA changed the way in which SBA requires an applicant concern to demonstrate the economic disadvantage status of a NHO. See Sec. 124.110(c) (81 FR 48580-48581). Section 124.110(g)(2) had meaning only with respect to the way SBA previously required an applicant concern to demonstrate the economic disadvantage status of an NHO. SBA mistakenly did not remove Sec. 124.110(g)(2) when it made the change to Sec. 124.110(c). This correction is needed to remove the paragraph because it is now inconsistent with the July 25, 2016 final rule. Third, a correction is needed to make a conforming change to Sec. 124.112. The final rule eliminated the requirement from Sec. 124.203 that an applicant must submit IRS Form 4506T in every case, and clarified that SBA may request additional documentation during the 8(a) application process when necessary. However, the final rule did not make the conforming change that the IRS Form 4506T is not needed in every case for an annual review as well, but, rather, may be requested on a case-by-case basis during an annual review by SBA. Fourth, due to the change made to Sec. 121.103(h), which eliminated the ability of a joint venture to be populated with individuals intended to perform contracts awarded to the joint venture, a conforming correction is needed to Sec. 124.513(c), which references populated joint ventures. Specifically, Sec. 124.513(c)(4) provided that in the case of a populated separate legal entity joint venture, 8(a) Participant(s) must receive profits from the joint venture commensurate with their ownership interests in the joint venture. Because SBA eliminated populated joint ventures, that provision is now superfluous and needs to be deleted. Fifth, a correction is needed to amend an incorrect cross reference. The final rule revised Sec. 126.615. That revised language referenced an exception contained in Sec. 126.618(d). There is no paragraph (d). Therefore, the cross reference contained in Sec. 126.615 is revised to read Sec. 126.618. Sixth, a correction is needed to correct a mistaken instruction. Instruction 2 on page 48578 purported to revise the last two sentences of the introductory text of 13 CFR 121.103(h). However, on May 31, 2016, SBA amended paragraph (h) by adding a new final sentence to the introductory text of paragraph (h). 81 FR 34243, 34258, instruction 2.c. Consequently, a sentence that SBA intended to remove remains in paragraph (h), while a sentence that SBA added on May 31, 2016 was revised. Thus, SBA is revising the introductory text of paragraph (h) to read as intended under both rules. List of Subjects 13 CFR Part 121 Administrative practice and procedure, Government procurement, Government property, Individuals with disabilities, Loan programs-- business, Reporting and recordkeeping requirements, Small businesses. 13 CFR Part 124 Administrative practice and procedures, Government procurement, Hawaiian natives, Indians--business and finance, Minority businesses, Reporting and recordkeeping requirements, Tribally-owned concerns, Technical assistance. 13 CFR Part 126 Administrative practice and procedure, Government procurement, Penalties, Reporting and recordkeeping requirements, Small businesses. Accordingly, 13 CFR parts 121,124, and 126 are corrected by making the following correcting amendments: PART 121--SMALL BUSINESS SIZE REGULATIONS 0 1. The authority citation for part 121 continues to read as follows: Authority: 15 U.S.C. 632, 634(b)(6), 662, and 694a(9). 0 2. Amend Sec. 121.103 by revising the introductory text of paragraph (h) to read as follows: Sec. 121.103 How does SBA determine affiliation? * * * * * (h) Affiliation based on joint ventures. A joint venture is an association of individuals and/or concerns with interests in any degree or proportion consorting to engage in and carry out no more than three specific or limited-purpose business ventures for joint profit over a two year period, for which purpose they combine their efforts, property, money, skill, or knowledge, but not on a continuing or permanent basis for conducting business generally. This means that a specific joint venture entity generally may not be awarded more than three contracts over a two year period, starting from the date of the award of the first contract, without the partners to the joint venture being deemed affiliated for all purposes. Once a joint venture receives one contract, SBA will determine compliance with the three awards in two years rule for future awards as of the date of initial offer including price. As such, an individual joint venture may be awarded more than three contracts without SBA finding general affiliation between the joint venture partners where the joint venture had received two or fewer contracts as of the date it submitted one or more additional offers which thereafter result in one or more additional contract awards. The same two (or more) entities may create additional joint ventures, and each new joint venture entity may be awarded up to three contracts in accordance with this section. At some point, however, such a longstanding inter-relationship or contractual dependence between the same joint venture partners will lead to a finding of general affiliation between and among them. For purposes of this provision and in order to facilitate tracking of the number of contract [[Page 71983]] awards made to a joint venture, a joint venture: Must be in writing and must do business under its own name; must be identified as a joint venture in the System for Award Management (SAM); may be in the form of a formal or informal partnership or exist as a separate limited liability company or other separate legal entity; and, if it exists as a formal separate legal entity, may not be populated with individuals intended to perform contracts awarded to the joint venture (i.e., the joint venture may have its own separate employees to perform administrative functions, but may not have its own separate employees to perform contracts awarded to the joint venture). SBA may also determine that the relationship between a prime contractor and its subcontractor is a joint venture, and that affiliation between the two exists, pursuant to paragraph (h)(5) of this section. For purposes of this paragraph (h), contract refers to prime contracts, and any subcontract in which the joint venture is treated as a similarly situated entity as the term is defined in part 125 of this chapter. * * * * * Sec. 121.702 [Amended] 0 3. Amend Sec. 121.702(b)(1)(i) by adding the words ``an Indian tribe, ANC or NHO (or a wholly owned business entity of such tribe, ANC or NHO),'' before the words ``or any combination of these''. PART 124--8(A) BUSINESS DEVELOPMENT/SMALL DISADVANTAGED BUSINESS STATUS DETERMINATIONS 0 3. The authority citation for part 124 continues to read as follows: Authority: 15 U.S.C. 634(b)(6), 636(j), 637(a), 637(d), 644 and Pub. L. 99-661, Pub. L. 100-656, sec. 1207, Pub. L. 101-37, Pub. L. 101-574, section 8021, Pub. L. 108-87, and 42 U.S.C. 9815. 0 4. Amend Sec. 124.110 by revising paragraph (g) to read as follows: Sec. 124.110 Do Native Hawaiian Organizations have any special rules for applying to the 8(a) BD program? * * * * * (g) An NHO-owned firm's eligibility for 8(a) BD participation is separate and distinct from the individual eligibility of the NHO's members, directors, or managers. The eligibility of an NHO-owned concern is not affected by the former 8(a) BD participation of one or more of the NHO's individual members. * * * * * Sec. 124.112 [Amended] 0 5. Amend Sec. 124.112 by adding the word ``and'' at the end of paragraph (b)(8), removing paragraph (b)(9), and redesignating paragraph (b)(10) as paragraph (b)(9). 0 6. Amend Sec. 124.513 by revising paragraph (c)(4) to read as follows: Sec. 124.513 Under what circumstances can a joint venture be awarded an 8(a) contract? * * * * * (c) * * * (4) Stating that the 8(a) Participant(s) must receive profits from the joint venture commensurate with the work performed by the 8(a) Participant(s); * * * * * PART 126--HUBZONE PROGRAM 0 7. The authority citation for part 126 continues to read as follows: Authority: 15 U.S.C. 632(a), 632(j), 632(p), 644; and 657a; Pub. L. 111-240, 24 Stat. 2504. Sec. 126.615 [Amended] 0 8. Amend Sec. 126.615 by removing ``Sec. 126.618(d)'' and adding in its place ``Sec. 126.618''. A. John Shoraka, Associate Administrator for Government Contracting and Business Development. [FR Doc. 2016-25080 Filed 10-18-16; 8:45 am] BILLING CODE 8205-01-P
![Federal Register / Vol. 81, No. 202 / Wednesday, October 19, 2016 / Rules and Regulations 71981
the request for loss mitigation does the The Bureau emphasizes, however, flexibility analysis.32 The Bureau has
cease communication prohibition apply that the cease communication determined that this rule does not
to communicating about the specific prohibition continues to apply to a impose any new or revise any existing
loss mitigation action.29 servicer’s communications with a recordkeeping, reporting, or disclosure
The Bureau notes that this borrower about payment of the mortgage requirements on covered entities or
interpretation provides a safe harbor loan that are outside the scope of loss members of the public that would be
from FDCPA section 805(c) for servicers mitigation conversations. The Bureau’s collections of information requiring
that are debt collectors with respect to interpretation does not protect a servicer OMB approval under the Paperwork
a particular mortgage loan that is a debt collector with respect to Reduction Act, 44 U.S.C. 3501 et seq.
communicating with the borrower in a mortgage loan and is using borrower- Dated: August 2, 2016.
connection with a borrower’s initiation initiated communications concerning
Richard Cordray,
of communications concerning loss loss mitigation as a pretext for debt
mitigation. Preceding a borrower’s loss collection in circumvention of a Director, Bureau of Consumer Financial
mitigation application and during the Protection.
borrower’s invoked cease
evaluation process, a servicer may [FR Doc. 2016–18902 Filed 10–18–16; 8:45 am]
communication right under FDCPA
respond to borrower inquiries about section 805(c) with regard to that loan. BILLING CODE 4810–AM–P
potentially available loss mitigation Seeking to collect a debt under the guise
options and provide information of a loss mitigation conversation is not
regarding any available option. exempt from liability under FDCPA SMALL BUSINESS ADMINISTRATION
Similarly, if that borrower submits a section 805(c) under this interpretation.
loss mitigation application, the Thus, in subsequently communicating 13 CFR Parts 121, 124, and 126
servicer’s reasonable diligence with a borrower concerning loss RIN 3245–AG24
obligations under § 1024.41(b)(1) require mitigation, the servicer is strictly
the servicer to request additional prohibited from making a request for Small Business Mentor Protégé
information from the borrower, payment that is not immediately related Programs; Correction
including by contacting the borrower, to any specific loss mitigation option.
and these communications by the Some examples of impermissible AGENCY: U.S. Small Business
servicer to complete a loss mitigation communications include initiating Administration.
application do not fall within the cease conversations with the borrower related ACTION: Correcting amendments.
communication prohibition. The to repayment of the debt that are not for
servicer may also seek information that the purposes of loss mitigation, SUMMARY: The U.S. Small Business
will be necessary to evaluate the demanding that the borrower make a Administration (SBA) published a final
borrower for loss mitigation, though the payment, requesting that the borrower rule in the Federal Register on July 25,
servicer may not seek a payment bring the account current or make a 2016 (81 FR 48557), amending its
unrelated to the purpose of loss partial payment on the account, or regulations to establish a new
mitigation. Once the borrower’s loss attempting to collect the outstanding Government-wide mentor-protégé
mitigation application is complete, a balance or arrearage, unless such program for all small business concerns,
servicer’s communications with a communications are immediately consistent with SBA’s mentor-protégé
borrower in accordance with the related to a specific loss mitigation program for Participants in SBA’s 8(a)
procedures in § 1024.41 are not subject option.30 Additionally, all other Business Development (BD) program.
to liability under FDCPA section 805(c) provisions of the FDCPA, including the The rule also made several additional
because they arise from the borrower’s prohibitions contained in FDCPA changes to current size, 8(a), Office of
application for loss mitigation. sections 805 through 808, continue to Hearings and Appeals, and HUBZone
The Bureau recognizes that, in order apply.31 regulations, concerning among other
for a borrower to engage in meaningful things, ownership and control, changes
loss mitigation discussions with a III. Regulatory Requirements in primary industry, economic
servicer, the servicer may discuss This rule articulates the Bureau’s disadvantage of a Native Hawaiian
repayment options, the borrower’s interpretation of the FDCPA. It is Organization (NHO), standards of
ability to make a payment, and how exempt from notice and comment review, and interested party status for
much the borrower can afford to pay as rulemaking requirements under the some appeals. This document makes
a part of a loss mitigation option for Administrative Procedure Act pursuant several technical corrections to that
which the servicer is considering the to 5 U.S.C. 553(b). Because no notice of final rule, including correcting citations,
borrower. Furthermore, the Bureau proposed rulemaking is required, the eliminating a paragraph that conflicts
understands that any offer for a loan Regulatory Flexibility Act does not with a new provision added by that
modification or repayment plan is likely require an initial or final regulatory final rule, and making conforming
to include a specific payment amount amendments.
the borrower must pay under the terms 30 See 53 FR 50097, 50103 (Dec. 13, 1988)
of the loss mitigation agreement. Such (Section 805(c)–2 of the Federal Trade DATES: Effective October 19, 2016.
Commission’s (FTC) Official Staff Commentary on FOR FURTHER INFORMATION CONTACT:
communications, as long as for the FDCPA section 805(c)) (‘‘A debt collector’s response
purpose of loss mitigation, are to a ‘cease communication’ notice from a consumer Michael McLaughlin, Office of Policy,
permissible because they should not be may not include a demand for payment, but is Planning & Liaison, U.S. Small Business
understood as within the scope of the limited to the three statutory exceptions [under Administration, 409 Third Street SW.,
jstallworth on DSK7TPTVN1PROD with RULES
FDCPA section 805(c)(1) through (3)].’’). Washington, DC 20416; 202–205–5353;
cease communication request. 31 For example, servicers that are debt collectors
must not: Engage in conduct the natural
michael.mclaughlin@sba.gov.
29 See Bureau of Consumer Fin. Prot., consequence of which is to harass, oppress, or SUPPLEMENTARY INFORMATION: The final
Implementation Guidance for Certain Mortgage abuse any person in connection with the collection rule published on July 25, 2016, at 81
Servicing Rules, CFPB Bulletin 2013–12 (Oct. 15, of a debt; use any false, deceptive, or misleading
2013), available at http:// representation or means in connection with the
FR 48557, contained several errors,
files.consumerfinance.gov/f/201310_cfpb_mortgage- collection of a debt; or use unfair or unconscionable
servicing_bulletin.pdf. means to collect or attempt to collect any debt. 32 5 U.S.C. 603(a) and 604(a).
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![Federal Register / Vol. 81, No. 202 / Wednesday, October 19, 2016 / Rules and Regulations 71983
awards made to a joint venture, a joint § 124.112 [Amended] Administration, 409 Third Street SW.,
venture: Must be in writing and must do ■ 5. Amend § 124.112 by adding the Washington, DC 20416; 202–205–5353;
business under its own name; must be word ‘‘and’’ at the end of paragraph michael.mclaughlin@sba.gov.
identified as a joint venture in the (b)(8), removing paragraph (b)(9), and SUPPLEMENTARY INFORMATION: SBA
System for Award Management (SAM); redesignating paragraph (b)(10) as published a final rule in the Federal
may be in the form of a formal or paragraph (b)(9). Register on May 31, 2016 (81 FR 34243).
informal partnership or exist as a ■ 6. Amend § 124.513 by revising That rule amended § 125.6. On July 25,
separate limited liability company or paragraph (c)(4) to read as follows: 2016, SBA published a separate final
other separate legal entity; and, if it rule in the Federal Register (81 FR
exists as a formal separate legal entity, § 124.513 Under what circumstances can a 48557) that purported to amend § 125.6
may not be populated with individuals joint venture be awarded an 8(a) contract? by removing ‘‘§ 125.15’’ from the
intended to perform contracts awarded * * * * * introductory text of paragraph (b) and
to the joint venture (i.e., the joint (c) * * * adding in its place ‘‘§ 125.18’’ and by
venture may have its own separate (4) Stating that the 8(a) Participant(s) removing ‘‘§ 125.15(b)(3)’’ from
employees to perform administrative must receive profits from the joint paragraph (b)(5) and adding in its place
functions, but may not have its own venture commensurate with the work ‘‘§ 125.18(b)(3)’’. These amendments
separate employees to perform contracts performed by the 8(a) Participant(s); could not be implemented as instructed
awarded to the joint venture). SBA may * * * * * because paragraph 125.6 (b) does not
also determine that the relationship contain the text to be removed. These
between a prime contractor and its PART 126—HUBZONE PROGRAM changes inadvertently failed to take into
subcontractor is a joint venture, and that account the amendments made to
affiliation between the two exists, ■ 7. The authority citation for part 126 § 125.6 by the final rule published on
pursuant to paragraph (h)(5) of this continues to read as follows: May 31, 2016. This correction removes
section. For purposes of this paragraph Authority: 15 U.S.C. 632(a), 632(j), 632(p), the instruction to amend § 125.6
(h), contract refers to prime contracts, 644; and 657a; Pub. L. 111–240, 24 Stat. published on July 25, 2016, in 81 FR
and any subcontract in which the joint 2504. 48558.
venture is treated as a similarly situated In the FR Rule Doc. No. 2016–16399
§ 126.615 [Amended]
entity as the term is defined in part 125 in the issue of July 25, 2016, beginning
of this chapter. ■ 8. Amend § 126.615 by removing on page 48557, make the following
* * * * * ‘‘§ 126.618(d)’’ and adding in its place correction:
‘‘§ 126.618’’. ■ On page 48585, in the third column,
§ 121.702 [Amended] remove amendatory instruction 34 in its
A. John Shoraka,
■ 3. Amend § 121.702(b)(1)(i) by adding Associate Administrator for Government entirety and the amendment to § 125.6.
the words ‘‘an Indian tribe, ANC or Contracting and Business Development. A. John Shoraka,
NHO (or a wholly owned business [FR Doc. 2016–25080 Filed 10–18–16; 8:45 am] Associate Administrator for Government
entity of such tribe, ANC or NHO),’’ BILLING CODE 8205–01–P Contracting and Business Development.
before the words ‘‘or any combination of [FR Doc. 2016–24832 Filed 10–18–16; 8:45 am]
these’’. BILLING CODE 8025–01–P
SMALL BUSINESS ADMINISTRATION
PART 124—8(A) BUSINESS
DEVELOPMENT/SMALL 13 CFR Part 125
DISADVANTAGED BUSINESS STATUS DEPARTMENT OF TRANSPORTATION
RIN 3245–AG24
DETERMINATIONS Federal Aviation Administration
Small Business Mentor Protégé
■ 3. The authority citation for part 124 Programs; Correction 14 CFR Chapter I
continues to read as follows:
AGENCY: U.S. Small Business [Docket No. FAA–2016–9288]
Authority: 15 U.S.C. 634(b)(6), 636(j), Administration.
637(a), 637(d), 644 and Pub. L. 99–661, Pub. Hazardous Materials: Emergency
ACTION: Final rule; correction.
L. 100–656, sec. 1207, Pub. L. 101–37, Pub. Restriction/Prohibition Order
L. 101–574, section 8021, Pub. L. 108–87,
SUMMARY: The U.S. Small Business
and 42 U.S.C. 9815. AGENCY: Federal Aviation
Administration (SBA) published a final
rule in the Federal Register on July 25, Administration (FAA), DOT.
■ 4. Amend § 124.110 by revising
2016, (81 FR 48557) to, among other ACTION: Emergency restriction/
paragraph (g) to read as follows:
things, implement provisions of the prohibition order.
§ 124.110 Do Native Hawaiian National Defense Authorization Act of
Organizations have any special rules for SUMMARY: This document provides
2013, which pertain to performance Emergency Restriction/Prohibition
applying to the 8(a) BD program? requirements applicable to small Order No. FAA–2016–9288, issued
* * * * * business and socioeconomic program October 14, 2016 and effective at 12
(g) An NHO-owned firm’s eligibility set-aside contracts and small business p.m. (noon) Eastern Daylight Time
for 8(a) BD participation is separate and subcontracting. That rule contained an (EDT), October 15, 2016 to Samsung
jstallworth on DSK7TPTVN1PROD with RULES
distinct from the individual eligibility of instruction to amend portions of § 125.6 Galaxy Note 7 Users and air carriers.
the NHO’s members, directors, or that do not exist. This document The Emergency Order prohibits persons
managers. The eligibility of an NHO- removes the amendatory instruction. from offering for air transportation or
owned concern is not affected by the DATES: Effective October 19, 2016. transporting via air any Samsung Galaxy
former 8(a) BD participation of one or FOR FURTHER INFORMATION CONTACT: Note 7 device on their person, in carry-
more of the NHO’s individual members. Michael McLaughlin, Office of Policy, on baggage, in checked baggage, or as
* * * * * Planning & Liaison, U.S. Small Business cargo; requires individuals who
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Document Created: 2016-10-19 02:11:59
Document Modified: 2016-10-19 02:11:59
| Category | Regulatory Information | |
| Collection | Federal Register | |
| sudoc Class | AE 2.7: GS 4.107: AE 2.106: | |
| Publisher | Office of the Federal Register, National Archives and Records Administration | |
| Section | Rules and Regulations | |
| Action | Correcting amendments. | |
| Dates | Effective October 19, 2016. | |
| Contact | Michael McLaughlin, Office of Policy, Planning & Liaison, U.S. Small Business Administration, 409 Third Street SW., Washington, DC 20416; 202-205-5353; [email protected] | |
| FR Citation | 81 FR 71981 | |
| RIN Number | 3245-AG24 | |
| CFR Citation | 13
CFR
121 13 CFR 124 13 CFR 126 | |
| CFR Associated | Administrative Practice and Procedure; Government Procurement; Government Property; Individuals with Disabilities; Loan Programs-Business; Reporting and Recordkeeping Requirements; Small Businesses; Administrative Practice and Procedures; Hawaiian Natives; Indians-Business and Finance; Minority Businesses; Tribally-Owned Concerns; Technical Assistance and Penalties |
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