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42517
Rules and Regulations Federal Register
Vol. 73, No. 141
Tuesday, July 22, 2008
This section of the FEDERAL REGISTER (12 U.S.C. 2252(a)(9) and (10)) employees for the heating oil and LPG
contains regulatory documents having general Dated: July 17, 2008. dealers industries.
applicability and legal effect, most of which
Roland E. Smith, Evaluation of Comments
are keyed to and codified in the Code of
Federal Regulations, which is published under Secretary, Farm Credit Administration Board. In response to its proposed rule, SBA
50 titles pursuant to 44 U.S.C. 1510. [FR Doc. E816772 Filed 72108; 8:45 am] received comments from one individual
The Code of Federal Regulations is sold by
BILLING CODE 670501P and three advocacy groups for the
the Superintendent of Documents. Prices of affected industries.
new books are listed in the first FEDERAL One commenter recommended that
REGISTER issue of each week. SMALL BUSINESS ADMINISTRATION SBA use an annual volumetric delivery
to measure a heating oil dealer's size
13 CFR Parts 121 instead of revenues or employees. The
FARM CREDIT ADMINISTRATION RIN 3245AF67 commenter believes that not applying
the same standard for all industries
12 CFR Part 613 Small Business Size Standards: Fuel could potentially fail the disparate
Oil Dealers Industries treatment justification, result in equal
RIN 3052AC33 protection clause challenges, and
AGENCY: U.S. Small Business encourage employment reductions by
Eligibility and Scope of Financing; Administration (SBA). some businesses to remain an eligible
Processing and Marketing; Effective ACTION: Final rule. small business for reduced hazardous
Date
material transportation registration fees.
SUMMARY: This rule revises the small SBA is concerned that using a
AGENCY: Farm Credit Administration. business size standard for the Heating
ACTION: Notice of effective date.
volumetric delivery measure would
Oil Dealers industry (North American require heating oil dealers to keep
Industry Classification System (NAICS) separate records for size determination
SUMMARY: The Farm Credit
code 454311) from $11.5 million in purposes. Also, that type of information
Administration (FCA or Agency),
average annual receipts to 50 is not independently verifiable in the
through the FCA Board (Board), issued
employees, and the size standard for the case of an SBA size determination. The
a final rule under part 613 on May 28,
Liquefied Petroleum Gas (Bottled Gas) only data collected by government
2008 (73 FR 30460) amending our
Dealers industry (NAICS code 454312) agencies regarding heating oil dealers
regulation governing financing of
from $6.5 million in average annual are average weekly costs obtained from
processing and marketing operations by
receipts (AAR) to 50 employees. These a random survey by state energy
Farm Credit System institutions under
revised size standards stabilize the agencies and provided to the U.S.
titles I and II of the Farm Credit Act of
definition of the size of a small business Department of Energy. Businesses in
1971, as amended. In accordance with
in these industries based on a review of other industries where SBA uses size
12 U.S.C. 2252, the effective date of the
the latest available data on industry measures other than receipts or
final rule is 30 days from the date of
characteristics and other relevant employees (e.g., megawatt hours for
publication in the Federal Register
information. electric utilities, assets for financial
during which either or both Houses of
Congress are in session. Based on the DATES: Effective Date: This rule is institutions, and barrels of refined
records of the sessions of Congress, the effective on August 21, 2008. petroleum products for petroleum
effective date of the regulations is July FOR FURTHER INFORMATION CONTACT: refineries) are legally required to report
17, 2008. Diane Heal, Office of Size Standards, these data using those measures to an
(202) 2056618 or appropriate Federal agency. The use of
DATES: Effective Date: The regulation
sizestandards@sba.gov. volumetric delivery measure would also
amending 12 CFR part 613 published on fail to capture other activities of the
May 28, 2008 (73 FR 30460) is effective SUPPLEMENTARY INFORMATION: On business and affiliation with other
July 17, 2008. October 31, 2007, SBA published in the businesses in determining size. Because
FOR FURTHER INFORMATION CONTACT: Federal Register (72 FR 61574) a of these concerns, SBA believes that
Barry Mardock, Associate Director, proposed change in the measure of the number of employees is a better
Office of Regulatory Policy, Farm small business size standards for the measure of size than volumetric
Credit Administration, McLean, Heating Oil Dealers from $11.5 million delivery and, therefore, does not adopt
Virginia 221025090, (703) 8834456, in AAR to 50 employees, and for the this recommendation.
TTY (703) 8834434, or Liquefied Petroleum Gas (LPG) (bottled Comments from three advocacy
Michael J. Duffy, Senior Policy Analyst, gas) Dealers from $6.5 million in AAR groups for these two industries
Office of Regulatory Policy, Farm to 50 employees. Based on SBA's supported the conversion of the size
Credit Administration, McLean, evaluation of the public comments measure from average annual receipts to
Virginia 221025090, (952) 8547151, received to its October 31, 2007 average number of employees. Two of
TTY (952) 8542239, or proposed rule and on SBA's size these advocacy groups, however,
rfrederick on PROD1PC67 with RULES
Howard I. Rubin, Senior Counsel, Office standards analysis described in the recommended that the size standard for
of General Counsel, Farm Credit proposed rule, SBA concludes that the heating oil dealers be increased from the
Administration, McLean, Virginia proposed change to 50 employees is proposed 50 employees to 100
221025090, (703) 8834029, TTY appropriate. Accordingly, this final rule employees. They believe that heating oil
(703) 8834020. adopts the proposed size standard of 50 dealers with up to 100 employees are
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42518 Federal Register / Vol. 73, No. 141 / Tuesday, July 22, 2008 / Rules and Regulations
small given the labor-intensive Final Regulatory Flexibility Analysis dealers' receipts are considerably
operations of heating oil dealers and the Under the Regulatory Flexibility Act, increased through outside forces.
need for multiple branch offices to serve this rule may have a significant impact 3. What are SBA's description and
their customers. However, these two estimate of the number of small entities
on a substantial number of small entities
groups did not provide any evidence or to which the rule will apply? Based on
in the heating oil and LPG dealers
statistical data to support their data from the SBA's special tabulation
industries. This rule may affect the
assertion. of the U.S. Bureau of the Census's 2002
eligibility of heating oil and LPG dealers
Economic Census, there were 3,729
The purpose of this rule is to convert seeking SBA 7(a) Loans, SBA Economic
small heating oil dealers and 2,005
the size standard to employees from the Impact Disaster Loans, reduced U.S.
small LPG dealers under the existing
current measure in receipts, not increase Department of Transportation's
size standards. Taking into account
the size standard. As explained in the Hazardous Materials (HAZMAT)
historical trends of residential heating
proposed rule, the current size standard Registration Program fees, and
oil and propane prices between 2002
of $11.5 million for the heating oil assistance from other Federal small and 2007, 349 heating oil dealers and
dealers industry converts to 50 business programs. 269 LPG dealers may exceed the
employees. Furthermore, at that size, Immediately below, SBA sets forth a
existing size standard due solely to
more than 90 percent of heating oil final regulatory flexibility analysis of
higher receipts generated by higher
dealers are classified as small and they this final rule addressing the following
prices. Establishing the employee-based
account for approximately 53 percent of questions: (1) What is the reason for this size standard for these two industries
total industry sales. SBA concludes that action, (2) what are the objectives and will restore the small business eligibility
a 50-employee size standard for heating legal basis for the rule, (3) what are of those dealers.
oil dealers is a viable size standard and, SBA's description and estimate of the 4. What are the significant issues
therefore, declines to adopt the number of small entities to which the raised by the public in response to the
recommended 100-employee size rule will apply, (4) what are the Initial Regulatory Flexibility Analysis in
standard. SBA will give further significant issues raised by the public in the October 31, 2007, proposed rule?
consideration to the heating oil and LPG response to the Initial Regulatory The public raised no significant issues
dealers' size standards when it receives Flexibility Analysis in the October 31, in response to the Initial Regulatory
more current industry data from the 2005 proposed rule, (5) will this rule Flexibility Analysis in the October 31,
U.S. Bureau of the Census in 2009. impose any additional reporting or 2007, proposed rule. There were four
recordkeeping requirements on small commenters to the proposed rule. Three
Compliance With Executive Orders business entities, (6) what are the commenters supported the conversion
12866, 12988, and 13132, the relevant Federal rules which may of the size standard from receipts-based
Paperwork Reduction Act (44 U.S.C. duplicate, overlap or conflict with the to employee-based. SBA has
Ch. 35), and the Regulatory Flexibility rule, and (7) what alternatives did SBA summarized the comments above in the
Act (5 U.S.C. 601612) consider? supplemental information.
1. What is the reason for this action? 5. Will this rule impose any additional
For purposes of Executive Order Significant increases and fluctuations in reporting or recordkeeping requirements
12866, the Office of Management and crude oil costs render a receipts-based on small business entities? Establishing
Budget (OMB) has determined that this size standard for the heating oil and an employee-based size standard for
rule is not a significant regulatory LGP dealers industries an unsuitable heating oil and LPG dealers does not
action. In addition, this rule is not a measure of a dealer's level of business impose any additional reporting,
major rule under the Congressional activity. Converting the existing recordkeeping, or compliance
Review Act, 5 U.S.C. 800. receipts-based size standard to an requirements on small entities.
For purposes of Executive Order employee-based size standard provides Although the measure of size changes
12988, SBA has determined that this a more accurate measure of the from receipts to number of employees,
rule is drafted, to the extent practicable, operations of a heating oil dealer and business concerns must maintain
in accordance with the standards set LPG dealer, ensuring a more stable records on employees in the course of
forth in that Order. small business designation to dealers of business. In response to a request for a
these fuel products. size determination related to an
For purposes of Executive Order
2. What are the objectives and legal application for small business
13132, SBA has determined that this
basis for the rule? The purpose of this assistance, small businesses must
rule does not have any federalism
rule is to convert the existing receipts- provide information on receipts or
implications warranting the preparation
based size standard to an employee- number of employees. This final rule
of a federalism assessment.
based size standard to provide a more does not create a new requirement to
For purposes of the Paperwork stable designation and accurate measure provide size information, only what
Reduction Act, 44 U.S.C. Ch. 35, SBA of the operations of a heating oil dealer type of information that is requested in
has determined that this rule does not and LPG dealer. Section 3(a) of the reviewing a business concern's size.
impose new reporting or recordkeeping Small Business Act (15 U.S.C. 632(a)) Section 212 of the Small Business
requirements. Although the measure of gives SBA the authority to establish and Regulatory Fairness Act (Pub. L. 104
size changes from receipts to number of change size standards. Under the 121) requires an agency to publish one
employees, business concerns must current measure, heating oil or LPG or more ``small entity compliance
maintain records on employees (such as dealers are abruptly exceeding the size guides'' to assist small entities in
payroll records) in the course of standard due to large and unpredictable complying with its rules. Although
business. Providing information to SBA increases in crude oil costs, even though there are not new compliance
rfrederick on PROD1PC67 with RULES
on the number of employees would they continue to deliver the same requirements associated with small
occur only as a result of a request for a quantity of fuel products. This occurs business size standards, there may be
size determination related to an because dealers pass through the some small businesses not acquainted
application for small business increased costs to their customers in the with small business size standards and
assistance. form of higher prices. Therefore, their application to Federal
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Federal Register / Vol. 73, No. 141 / Tuesday, July 22, 2008 / Rules and Regulations 42519
procurement and other Federal standard is not appropriate, an agency Therefore, there is no reliable data
government programs. Therefore, SBA may establish its own size standards measuring a firm's annual volumetric
has published both its ``Small Business with the approval of the SBA delivery. Also, that measure would not
Size Regulations'' and its ``Guide to Size Administrator (see 13 CFR 121.902 capture the activities of the business
Standards'' to provide this assistance. 903). For purposes of a regulatory outside of heating oil and LPG
Both of these are available on SBA's flexibility analysis, agencies must deliveries or the size of any affiliates.
Web site at http://www.sba.gov/size by consult with SBA's Office of Advocacy For these reasons, SBA did not adopt
selecting on the right hand side of the when developing size standards for its this recommendation.
page ``Size Regulations'' and ``Guide to programs. (13 CFR 121.903(3)).
Size Standards.'' 7. What alternatives did SBA List of Subjects in 13 CFR part 121
6. What are the relevant Federal rules consider? As discussed in the proposed
Administrative practice and
that may duplicate, overlap, or conflict rule, SBA considered using the already
with the rule? This rule does not overlap established 500-employee size standard procedure, Government procurement,
with other Federal rules that use SBA's for the manufacturing sector or the 100- Government property, Grant programs--
size standards to define a small employee size standard for the business, Individuals with disabilities,
business. Under Section 3(a)(2)(C) of the wholesale sector. In addition, two of the Loan programs--business, Reporting
Small Business Act, 15 U.S.C. comments recommended that SBA and recordkeeping requirements, Small
632(a)(2)(c), unless specifically establish a 100-employee size standard businesses.
authorized by statute, Federal agencies for heating oil dealers. SBA analyzed I For the reasons set forth in the
must use SBA's size standards to define the heating oil dealers industry, and preamble, SBA amends 13 CFR part 121
a small business. The Federal 500- and 100-employee size standards as follows:
Acquisition Regulation (FAR), Part 19, would represent significant increases to
governs Federal procurement and the the size standard for the heating oil PART 121--SMALL BUSINESS SIZE
use of the various available small dealers industry. At this time, industry REGULATIONS
business programs. All Federal agencies data do not support higher standards. At
must follow FAR Part 19 in their 50 employees, more than 90 percent of I 1. The authority citation for part 121
procurement activities, in the absence of heating oil dealers qualify as small and continues to read as follows:
statutory authority to do otherwise. In they obtained more than half of total
Authority: 15 U.S.C. 632, 634(b)(6), 636(b),
1995, SBA published in the Federal industry sales.
637(a), 644, and 662(5); and Pub. L. 105135,
Register a list of statutory and SBA also considered one commenter's
Sec. 401, et seq., 111 Stat, 2592.
regulatory size standards that identified recommended use of annual volumetric
the application of SBA's size standards delivery as a measure for the size
I 2. In § 121.201, in the table ``Small
as well as other size standards used by standard. Using this measure would
Business Size Standards by NAICS
Federal agencies (60 FR 5798857991, require companies to keep separate
Industry,'' under the heading ``Sector
dated November 24, 1995). SBA is not records which are not verifiable for size
4445--Retail Trade,'' ``Subsector 454--
aware of any Federal rule that would determination purposes. The only data
Nonstore Retailers,'' revise the entries
duplicate or conflict with establishing collected by government agencies
for 454311 and 454312 to read as
size standards. regarding heating oil and LPG are the
follows:
Other Federal agencies also may use average weekly costs, which is
SBA size standards for a variety of performed using a random survey by § 121.201 What size standards has SBA
regulatory and program purposes. If state agencies which forward the data to identified by North American Industry
such a case exists where an SBA size the U.S. Department of Energy. Classification System codes?
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
* * * * * * *
Sector 4445--Retail Trade
* * * * * * *
Subsector 454--Nonstore Retailing
* * * * * * *
454311 ......... Heating Oil Dealers ........................................................................................................................ ........................ 50
454312 ......... Liquefied Petroleum Gas (Bottled Gas) Dealers ........................................................................... ........................ 50
* * * * * * *
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42520 Federal Register / Vol. 73, No. 141 / Tuesday, July 22, 2008 / Rules and Regulations
* * * * * 4. The National Archives and Records location, the procedure, and the
Dated: July 15, 2008. Administration (NARA). For amendment number.
Jovita Carranza,
information on the availability of this
material at NARA, call 2027416030, The Rule
Acting Administrator.
or go to: http://www.archives.gov/ This amendment to 14 CFR part 97 is
[FR Doc. E816658 Filed 72108; 8:45 am] federal_register/code_of_federal_
BILLING CODE 802501P
effective upon publication of each
regulations/ibr_locations.html. separate SIAP, Takeoff Minimums and
Availability--All SIAPs and Takeoff
ODP as contained in the transmittal.
Minimums and ODPs are Available
DEPARTMENT OF TRANSPORTATION online free of charge. Visit nfdc.faa.gov Some SIAP and Takeoff Minimums and
to register. Additionally, individual textual ODP amendments may have
Federal Aviation Administration SIAP and Takeoff Minimums and ODP been issued previously by the FAA in a
copies may be obtained from: Flight Data Center (FDC) Notice to
14 CFR Part 97 1. FAA Public Inquiry Center (APA Airmen (NOTAM) as an emergency
[Docket No. 30618; Amdt. No. 3278] 200), FAA Headquarters Building, 800 action of immediate flight safety relating
Independence Avenue, SW., directly to published aeronautical
Standard Instrument Approach Washington, DC 20591; or charts. The circumstances which
Procedures, and Takeoff Minimums 2. The FAA Regional Office of the created the need for some SIAP and
and Obstacle Departure Procedures; region in which the affected airport is Takeoff Minimums and ODP
Miscellaneous Amendments located. amendments may require making them
FOR FURTHER INFORMATION CONTACT: effective in less than 30 days. For the
AGENCY: Federal Aviation
Harry J. Hodges, Flight Procedure remaining SIAPS and Takeoff
Administration (FAA), DOT.
Standards Branch (AFS420), Flight Minimums and ODPs, an effective date
ACTION: Final rule.
Technologies and Programs Divisions, at least 30 days after publication is
SUMMARY: This rule establishes, amends, Flight Standards Service, Federal provided.
suspends, or revokes STANDARD Aviation Administration, Mike Further, the SIAPs and Takeoff
Instrument Approach Procedures Monroney Aeronautical Center, 6500 Minimums and ODPs contained in this
(SIAPs) and associated Takeoff South MacArthur Blvd., Oklahoma City, amendment are based on the criteria
Minimums and Obstacle Departure OK 73169 (Mail Address: P.O. Box contained in the U.S. Standard for
Procedures for operations at certain 25082, Oklahoma City, OK 73125)
Terminal Instrument Procedures
airports. These regulatory actions are Telephone: (405) 9544164.
(TERPS). In developing these SIAPS and
needed because of the adoption of new SUPPLEMENTARY INFORMATION: This rule
Takeoff Minimums and ODPs, the
or revised criteria, or because of changes amends Title 14 of the Code of Federal TERPS criteria were applied to the
occurring in the National Airspace Regulations, Part 97 (14 CFR part 97), by
conditions existing or anticipated at the
System, such as the commissioning of establishing, amending, suspending, or
affected airports. Because of the close
new navigational facilities, adding new revoking SIAPS, Takeoff Minimums
and/or ODPS. The complete regulators' and immediate relationship between
obstacles, or changing air traffic
description of each SIAP and its these SIAPs, Takeoff Minimums and
requirements. These changes are
associated Takeoff Minimums or ODP ODPs, and safety in air commerce, I find
designed to provide safe and efficient
for an identified airport is listed on FAA that notice and public procedures before
use of the navigable airspace and to
promote safe flight operations under form documents which are incorporated adopting these SIAPs, Takeoff
instrument flight rules at the affected by reference in this amendment under 5 Minimums and ODPs are impracticable
airports. U.S.C. 552(a), 1 CFR part 51, and 14 and contrary to the public interest and,
CFR part 97.20. The applicable FAA where applicable, that good cause exists
DATES: This rule is effective July 22, for making some SIAPs effective in less
Forms are FAA Forms 82603, 82604,
2008. The compliance date for each than 30 days.
82605, 826015A, and 826015B when
SIAP, associated Takeoff Minimums,
required by an entry on 826015A.
and ODP is specified in the amendatory The large number of SIAPs, Takeoff Conclusion
provisions. Minimums and ODPs, in addition to
The incorporation by reference of The FAA has determined that this
their complex nature and the need for regulation only involves an established
certain publications listed in the a special format make publication in the
regulations is approved by the Director body of technical regulations for which
Federal Register expensive and frequent and routine amendments are
of the Federal Register as of July 22, impractical. Furthermore, airmen do not
2008. necessary to keep them operationally
use the regulatory text of the SIAPs,
current. It, therefore--(1) Is not a
ADDRESSES: Availability of matters Takeoff Minimums or ODPs, but instead
``significant regulatory action'' under
incorporated by reference in the refer to their depiction on charts printed
amendment is as follows: by publishers of aeronautical materials. Executive Order 12866; (2) is not a
For Examination-- This way, the advantages of ``significant rule'' under DOT
1. FAA Rules Docket, FAA incorporation by reference are realized Regulatory Policies and Procedures (44
Headquarters Building, 800 and publication of the complete FR 11034; February 26, 1979); and (3)
Independence Avenue, SW., description of each SIAP, Takeoff does not warrant preparation of a
Washington, DC 20591; Minimums and ODP listed on FAA regulatory evaluation as the anticipated
2. The FAA Regional Office of the forms is unnecessary. This amendment impact is so minimal. For the same
rfrederick on PROD1PC67 with RULES
region in which the affected airport is provides the affected CFR sections and reason, the FAA certifies that this
located; specifies the types of SIAPs and the amendment will not have a significant
3. The National Flight Procedures effective dates of the Associated Takeoff economic impact on a substantial
Office, 6500 South MacArthur Blvd., Minimums and ODPs. This amendment number of small entities under the
Oklahoma City, OK 73169 or, also identifies the airport and its criteria of the Regulatory Flexibility Act.
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