Small Business Size Standards; Adoption of Size Standards by 2002 North American Industry Classification System for Size Standards

AGENCY:

Small Business Administration (SBA).

ACTION:

Direct final rule.

SUMMARY:

The U.S. Small Business Administration (SBA) is amending its Small Business Size Regulations by incorporating the Office of Management and Budget's (OMB) 2002 modifications of the North American Industry Classification System (NAICS) into its table of small business size standards. These modifications are limited to industries in six (6) NAICS Sectors. The modifications result in a small number of size standard changes to certain NAICS activities.

SBA believes that this rule is noncontroversial and routine, and SBA anticipates no adverse comments to this action. If SBA receives adverse comments, it will withdraw this rule. SBA is publishing concurrently in this issue of the Federal Register a proposed rule to achieve the same result, that is, to modify its Small Business Size Regulations as contemplated in this direct final rule.

DATES:

This rule is effective October 1, 2002, without further action, unless adverse comment is received by September 12, 2002. If adverse comment is received, SBA will publish a timely withdrawal of the rule in the Federal Register.

ADDRESSES:

Address all comments concerning this rule to Gary M. Jackson, Assistant Administrator for Size Standards, Office of Size Standards, 409 Third Street, SW., Washington, DC 20416, via e-mail to sizestandards@sba.gov, or via facsimile, (202) 205-6390. SBA will make all public comments available to any person or concern upon request.

FOR FURTHER INFORMATION CONTACT:

Carl Jordan, Office of Size Standards, at (202) 205-6618 or sizestandards@sba.gov.

SUPPLEMENTARY INFORMATION:

SBA adopted North American Industry Classification System (NAICS) industry definitions as a basis for its table of small business size standards effective October 1, 2000. The final rule was published in the Federal Register on May 5, 2000 (65 FR 30836) (NAICS 1997) and states the SBA Administrator's determination that the industry descriptions in NAICS shall be the basis for small business size standards.

OMB restructured and modified parts of NAICS effective January 1, 2002 (66 FR 3825, January 16, 2001) (NAICS 2002). This rule incorporates OMB's restructuring and modifications into SBA's table of size standards. NAICS 2002 is the same as NAICS 1997 for sixteen of the twenty industry Sectors. Two Sectors, Construction and Wholesale Trade are substantially changed. OMB also modified a number of classifications in the Retail Trades Sector, and the organization of the Information Sector.

Section 121.101(b) of Title 13 of the Code of Federal Regulations states “NAICS is described in the North American Industry Classification Manual—United States, 1997 * * *.” At the time SBA published the final rule in the Federal Register, the only description of NAICS available was the NAICS 1997 manual. However, with OMB's 2002 modification of NAICS 1997, SBA believes that retaining a definition in its regulations based on a particular year is confusing and inconsistent with the SBA Administrator's determination in the May 5, 2000, Federal Register notice, which does not refer to any specific year.

Justification for October 1, 2002 Effective Date

SBA determined that NAICS 2002 should be implemented on October 1, 2002, because:

1. Federal Government recordkeeping and statistics will be collected more consistently and will be more comparable with other data for analyzing small business activity. The first Federal Government fiscal year after January 1, 2002, is October 1, 2002.

2. SBA and other users of size standards can collect data on their small business programs using the more recent NAICS format and can compare those data with future Federal statistics collected using NAICS 2002 industry classifications. The availability of such comparable data will ensure the credibility of analyses comparing program data with industry.

3. Small business size standards apply to most Federal agencies and their programs involving small businesses. Federal agencies that use NAICS and SBA's small business size standards will need time to determine how to implement the new size standards and to develop training tools necessary to do so. SBA believes that publishing this rule now provides sufficient time for agencies to convert and update their databases and tracking systems for implementation by the beginning of FY 2003.

How SBA Arrived at the Size Standards for NAICS 2002 Industries

On October 22, 1999, SBA published in the Federal Register (64 FR 57188) a proposed rule to establish a new table of small business size standards based on NAICS. SBA developed guidelines to transition from the Standard Industrial Classification System to NAICS. The guidelines were intended to minimize the impact on SBA's small business size standards. Table A, below, lists those guidelines. SBA received no negative comments to the guidelines specified in the proposed rule. Because the guidelines produced the desired results and received public acceptance, SBA published its final rule on May 5, 2000 (corrected on September 5, 2000, 65 FR 53533), establishing a new table of size standards based on NAICS without change from its proposed rule. For purposes of adopting NAICS 2002, SBA is applying the same guidelines in this rule.

Changes in Size Standards

Applying the guidelines to the NAICS 2002 restructuring and modifications results in a limited number of changes to current small business size standards. Specifically, there are 12 economic activities within nine (9) NAICS 1997 industries that reflect a size standard change when related to NAICS 2002. Eight (8) of those 12 economic activities increase, three (3) decrease, and for the remaining activity the basis for the size standard changes from annual receipts to number of employees. For the balance of the NAICS 1997 codes and their size standards, there are no size standards changes as a result of the NAICS 2002 reclassifications and recategorizations.

For complete information on the relationship between NAICS 1997 and NAICS 2002, please see the U.S. Bureau of the Census (Census Bureau) Web site at http://www.census.gov/epcd/naics02/ That Web site contains complete information on the establishment and implementation of NAICS 2002, including the January 16, 2001 (66 FR 3825) Federal Register notice of final decision to adopt NAICS 2002. The Census Bureau's Web site also contains three correspondence tables: (1) 2002 NAICS-US matched to 1997 NAICS-US; (2) 1997 NAICS-US matched to 2002 NAICS-US; and (3) 2002 NAICS-US matched to 1987 Standard Industrial Classification.

Table B below identifies the twelve (12) NAICS 1997 industries and economic activities that have revised size standards in the new table based on industries as they are described in NAICS 2002.

The 12 activities with a size standard change moved to seven (7) NAICS 2002 industries. Tables 3 through 9 show the composition of these NAICS 2002 industries and discuss the basis for selecting their size standards.

1. NAICS 236220, Commercial and Institutional Building Construction, $28.5 Million

This industry is the same as NAICS 233320 (NAICS 1997) with the addition of several activities from parts of three other construction (NAICS 1997) industries (see Table 1). Only one activity within the revised industry did not have a size standard of $28.5 million under NAICS 1997. The activities of the previously defined industry continue to represent most activities in the industry. Therefore, the $28.5 million size standard for this industry is retained.

2. NAICS 237110, Water and Sewer Line and Related Structures Construction, $28.5 Million

This industry is the same as NAICS 234910 (NAICS 1997) with the addition of several heavy construction related activities and the Water Well Drilling industry (see Table 2). Water and sewer line activities constituted a large majority of the previously defined industry. The inclusion of the Water Well Drilling industry accounts for less than 15 percent of the revised industry. The activities of the previously defined industry continue to represent most activities in the industry. Therefore, the $28.5 million size standard for this industry is retained.

3. NAICS 237120, Oil and Gas Pipeline and Related Structures Construction, $28.5 Million

This is a new industry under the Heavy and Civil Engineering Subsector. It is comprised of activities from parts of three NAICS 1997 industries (see Table 3). All but one activity comprising this new industry had a $28.5 million size standard under NAICS 1997. Therefore, a $28.5 million size standard is adopted for this industry.

4. NAICS 237990, Other Heavy and Civil Engineering Construction, $28.5 Million

This industry is the same as NAICS 234990 (NAICS 1997) with a few minor changes (see Table 4). Two activities of parts of two construction industries were added to the previous (1997) NAICS industry and several activities were transferred from NAICS 234990 to other construction industries. Only one activity had a size standard different than $28.5 million under NAICS 1997. The activities of the previously defined industry continue to represent most activities in the industry. Therefore, the $28.5 million size standard for this industry is retained.

5. NAICS 238910, Site Preparation Contractors, $12.0 Million

This is a revised industry under the Special Trade Contractors Subsector. It is comprised predominately of two Special Trade Contractors industries. In addition, the revised industry includes one activity from parts of four mining support industries, several activities from part of one heavy construction industry, and several activities from parts of two other Special Trade Contractors industries (see Table 5). Because most of the activities of the revised industry are from NAICS 1997 Special Trade Contractors industries, a $12.0 million size standard is adopted for this industry.

6. NAICS 238990, All Other Specialty Trade Contractors, $12.0 Million

This industry is the same as NAICS 235990 under NAICS 1997 with a few minor changes. Several activities of the previous NAICS 1997 industry transferred to other construction industries and three activities from parts of three other industries were incorporated (see Table 6). The activities of the previously defined industry continue to represent most activities in the industry. Therefore, the $12.0 million size standard is retained.

7. NAICS 516110, Internet Publishing and Broadcasting, 500 Employees

This is a new industry under NAICS 2002. It is comprised of activities related to the publishing of materials via the Internet (see Table 7). All but one of these activities had a 500 employee size standard under NAICS 1997. Therefore, 500 employees is established for this industry because it represents the most prevalent size standard for the activities within this new industry.

Alternatives To Adopting NAICS 2002 That SBA Considered

SBA considered retaining the NAICS 1997 codes as the basis for small business size standards. However, SBA believes that doing so will lead to inconsistency with other Federal agencies that adopt NAICS 2002 for their programs. More importantly, if SBA does not adopt NAICS 2002 it will not be able to analyze and evaluate small business size standards adequately because available Census Bureau data based on NAICS 2002 industries will not be compatible with NAICS 1997 industry data. Without useful data SBA cannot properly analyze size standards and their effects on businesses.

An alternative to not adopting NAICS 2002 as a basis for size standards is to adopt part(s) of NAICS 2002. SBA believes this alternative is impractical because of the inherent inconsistencies that would result in using industry definitions from two systems.

Consideration of Comments

This is a direct final rule, but SBA will consider all submitted comments. SBA believes that this rule is non-controversial and routine, and SBA anticipates no adverse comments to this action. If SBA receives adverse comments, it will withdraw this direct final rule. SBA is publishing concurrently in this issue of the Federal Register a proposed rule to modify its Small Business Size Regulations as contemplated in this direct final rule. If SBA does receive adverse comments, it will consider the comment(s) before making a final decision. If SBA decides to adopt NAICS 2002 as proposed, or with limited modifications, it will publish a final rule which addresses the comments and explains the basis for its final decision.

Other Change

SBA is also making an administrative change to the heading of the size standards table. In the table titled “Small Business Size Standards by NAICS Industry” (13 CFR 121.201), SBA is removing “N.E.C. = Not Elsewhere Classified” from the heading. “N.E.C.” is not used in NAICS because NAICS contains no unclassified industries, unlike the Standard Industrial Classification system.

Compliance With Executive Orders 12866, 12988, and 13132, the Paperwork Reduction Act (44 U.S.C. Ch. 35.) and the Regulatory Flexibility Act (5 U.S.C. 601-612)

OMB has determined that this rule is not a “significant” regulatory action for purposes of Executive Order (E.O.) 12866. This rule incorporates the latest revisions of the NAICS, which is being used by SBA to identify industries in the economy for purposes of establishing small business size standards. As discussed in the preamble, the size standard of a limited number of activities will change as a result of the NAICS revisions. Almost all businesses currently defined as small under the NAICS 1997 industries will continue to be small under the NAICS 2002 industries. The rule also affects Federal Government programs that provide a benefit for businesses. SBA welcomes comments describing the impact on small businesses of the size standard changes resulting from this rule.

Furthermore, SBA was made aware that some Federal Government programs had already begun to use, albeit improperly, the NAICS 2002 codes and assigned small business size standards to them. SBA believes that these actions indicate that Federal agencies expect to use and will readily accept the NAICS 2002 codes.

For purposes of E.O. 12988, SBA has determined that this rule is drafted, to the extent practicable, in accordance with the standards set forth in that order.

For purposes of E.O. 13132, SBA has determined that this rule does not have any federalism implications warranting the preparation of a Federalism Assessment.

For purposes of the Paperwork Reduction Act, 44 U.S.C. Ch. 35, SBA has determined that this rule does not impose any new reporting or recordkeeping requirements.

When an agency promulgates a rule, the Regulatory Flexibility Act (5 U.S.C. 601-612) requires the agency to prepare a regulatory flexibility analysis describing the economic impact of the rule on small entities and alternatives that may minimize that impact. Section 605 of the RFA allows an agency to certify a rule, in lieu of preparing an analysis, if the rulemaking is not expected to have a significant economic impact on a substantial number of small entities. SBA has determined that this rule as drafted, including the alternatives discussed in the supplementary information above, will not have a significant impact on a substantial number of small entities. OMB's modifications are the restructuring and recategorization of the construction and wholesale trade sectors, and a small number of industries in the retail and information sectors. The modifications result in size standards changes to a minimal number of activities within certain NAICS industries detailed above in the supplementary information, with little, if any, effect on small businesses. Those activities now relate to more appropriate NAICS codes.

As part of OMB's restructuring of certain NAICS industries, a small number of specific activities within certain NAICS 1997 codes were classified within NAICS 2002 industries that have size standards different from what they had been in NAICS 1997. They are listed in Table 2, above. These activities are very specialized, and the Census Bureau does not publish data about these activities upon which to precisely assess the impact on small businesses. SBA believes that the impact on small businesses is minimal because these activities represent minor components of the NAICS 1997 industries from which they are derived. Only NAICS 235810, Water Well Drilling Contractors, is reclassified in its entirety to an industry with a different size standard, namely NAICS 237110, Water and Sewer Line and Related Structures Construction. Based on 1997 Economic Census data, there were only four water well drilling contractors out of a total of 3,795 that had annual receipts between $12.0 million and $28.5 million. SBA does not consider this number of businesses affected by a size standard change to be substantial.

List of Subjects in 13 CFR Part 121

• Administrative practice and procedure
• Government procurement
• Government property
• Grant programs— business
• Loan programs—business
• Reporting and recordkeeping requirements
• Small businesses

For the reasons stated in the preamble, SBA amends part 121 of title 13 of the Code of Federal Regulation 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(a), 634(b)(6), 637(a), 644(c), and 662(5); and Sec. 304, Pub. L. 103-403,108 Stat. 4175, 4188.

2. Amend the first sentence of § 121.101(b) to remove “ 1997”.

3. Amend § 121.201 as follows:

a. In the table “Small Business Size Standards by NAICS Industry,” remove the heading “Description (N.E.C. = Not Elsewhere Classified)” and add in its place “NAICS U.S. industry title”.

b. In the table “Small Business Size Standards by NAICS Industry,” remove the following three (3) Subsectors together with all entries within those Subsectors: Subsector 233—Building, Developing and General Contracting, Subsector 234—Heavy Construction, and Subsector 235—Special Trade Contractors, and add in their place the following:

c. In the table “Small Business Size Standards by NAICS Industry,” remove the following two (2) Subsectors together with all entries within those Subsectors: Subsector 421_Wholesale Trade_Durable Goods and Subsector 422_Wholesale Trade_Nondurable Goods, and add their place the following:

d. In the table “Small Business Size Standards by NAICS Industry,” remove the entry 452110, and add in its place the following:

e. In the table “Small Business Size Standards by NAICS Industry,” remove the entry 454110, and add in its place the following:

f. In the table “Small Business Size Standards by NAICS Industry,” revise the heading “Subsector 511—Publishing Industries” to read “Subsector 511—Publishing Industries (except internet).”

g. In the table “Small Business Size Standards by NAICS Industry,” in NAICS 511140 revise “Database and Directory Publishers” to read “Directory and Mailing List Publishers.”

h. In the table “Small Business Size Standards by NAICS Industry,” remove the following two (2) Subsectors together with all entries within those Subsectors: Subsector 513—Broadcasting and Telecommunications and Subsector 514 Information Services and Data Processing Services, and add in their place the following: