|
The Maritime
Administration's (MARAD) Compliance with the Small Business
Regulatory Enforcement Fairness Act (SBREFA)
MARAD's compliance with the
requirements of the SBREFA (Title II of Pub. L. 104-121, 110
Stat. 857-862) can best be summarized in the following
manner.
The intent of the SBREFA,
in amending the Regulatory Flexibility Act of 1980 (5 U.S.C.
§§601-612), is to focus the attention of traditional
"regulatory agencies" that actively regulate small business
concerns through rulemaking, to consider alternative
requirements on how to deal with these small entities
fairly. Traditional regulatory agencies impose reporting
requirements, monetary penalties and other sanctions many of
which may impact small businesses to a much greater extent
than larger entities. Therefore, the thrust of this
legislation is to minimize, wherever practicable and
equitable, the negative impact on small entities who are
unable to comply with agency directives contained in
regulations.
Although MARAD is
essentially a "promotional" agency and, as such, has very
limited authority and activity in carrying out traditional
regulatory actions, certain regulations promulgated by
MARAD, and regulations found under the Federal Acquisition
Regulations (FAR) do, from time-to-time, impact small
businesses as defined by the SBREFA.
DEFINITION OF
SMALL BUSINESS ENTITIES
"Small
entities" are very broadly defined in the statute to include
A small businesses," small organizations," and A small
governmental organizations." The Small Business
Administration's (SBA) regulations give a more detailed
definition, with size based upon the Standard Industrial
Classification (SIC) system. The A small entity" size is
based either upon number of employees or amount of annual
revenue. MARAD, as a promotional agency, has dealings with a
wide range of small entities, both within the maritime
sector and beyond. The following entities are considered to
be small entities by MARAD:
(1) A vessel
or vessel parts manufacturer that has 1,000 or fewer
employees;
(2) A marine
engine or engine parts manufacturer that has 1,000 or fewer
employees;
(3) A
manufacturer of other parts or auxiliary equipment that has
1,000 or fewer employees;
(4) A port in
which the population in the town, city or county that
operates the port has a population of 49,999 or fewer;
(5) A
privately-owned, public-use port;
(6) A ship
repair facility that has 1,000 or fewer employees;
(7) A maritime
school that has 500 or fewer employees;
(8) A
not-for-profit entity such as a city or county government
(but not including trade associations) that owns or leases 9
or fewer vessels (the entity does not necessarily have to
operate the vessel);
(9) Any other
marine-related business,
including
shipowners, that
has 500 or fewer employees;
(10) A marine
cargo handling operation that has an annual gross income of
$18.5 million or less;
(11) A towing
or tugboat service that has an annual gross income of $5.0
million or less;
(12) Marinas
that have a gross annual income of $5.0 million or less;
(13) Any other
water transportation services with an annual gross income of
$5.0 million or less;
(14) Offshore
marine water transportation services with annual gross
income of $20.5 million or less;
(15) Fire,
Marine, and Casualty Insurance companies with 1,500 or fewer
employees; and
(16) Any other
business not elsewhere classified with an annual gross
income of $5.0 million or less.
MARAD's list
is based upon the SBA's SICs:
SIC
MANUFACTURING TYPE NUMBER OF EMPLOYEES/ANNUAL RECEIPTS
MAJOR GROUP
16--HEAVY CONSTRUCTION,
NONBUILDING...................................... $17.0
EXCEPT:
1629
(Part)-Dredging and Surface Cleanup
Activities...............................................
$13.5 *
*1629--Dredging: To be considered small for purposes of
Government procurement, a firm must perform at least 40
percent of the volume dredged with its own equipment or
equipment owned by another small dredging concern.
SIC
MANUFACTURING TYPE NUMBER OF
EMPLOYEES/ANNUAL RECEIPTS
MAJOR GROUP
17--CONSTRUCTION--SPECIAL
TRADE................................................ $ 7.0
CONTRACTORS.
* * *
3511 Steam,
Gas, and Hydraulic Turbines, and Turbine Generator Set
Units...... .......... 1,000.
* * *
3621 Motors
and
Generators.....................................................................................
1,000
* * *
3731
Shipbuilding and Repair of Nuclear Propelled
Ships.............................................. 1,000
Shipbuilding
of Nonnuclear Propelled
Ships.................................................................
1,000
Ship Repair
(Including Overhauls and and Conversions) Performed on
Nonnuclear Propelled and Nonpropelled Ships East of the 108
Meridian
.......................................................
1,000.
Ship Repair
(Including Overhauls and Conversion) Performed on Nonnuclear
Propelled and Nonpropelled Ships West of the 108
Meridian.............................................................
1,000.
* * *
6331 Fire,
Marine, and Casualty
Insurance................................................................
1,500.
All other
maritime businesses are considered to be small entities if
they have 500 or fewer employees, except the following,
where small entities are classified by annual income:
-----------------------------------------------------------------
DIVISION
E--TRANSPORTATION, COMMUNICATIONS ELECTRIC, GAS, AND
SANITARY
SERVICES
---------------------------------------------------------------------------------------------------------------
* * *
BUSINESS
TYPE
NUMBER OF EMPLOYEES
MAJOR GROUP
44--WATER
TRANSPORTATION.......................................... 500
EXCEPT:
SIC
BUSINESS TYPE
ANNUAL INCOME
4491 Marine
Cargo
Handling........................................................
$18.5 million
4492 Towing
and Tugboat
Services.............................................. $ 5.0
million
SIC
MANUFACTURING TYPE NUMBER OF EMPLOYEES/ANNUAL RECEIPTS
4493
Marinas.............................................................................
$ 5.0 million
4499 Water
Transportation Services,
N.E.C................................... $ 5.0 million
--Offshore
Marine Water Transportation
Services........................... $20.5 million
* * *
MAJOR GROUP
47--TRANSPORTATION SERVICES,..........................$ 5.0
million
EXCEPT:
* * *
4731
Arrangement of Transportation of Freight and
Cargo...............$18.5 million.
4783 Packing
and
Crating............................................................
$18.5 million
* * *
9999
Nonclassifiable Establishments, with a corresponding size
standard of $5.0 million in annual receipts
* * *
DIVISION
F--WHOLESALE
TRADE.....................................................100
employees or less
Not Applicable
to Government procurement of supplies. The nonmanufacturer
size standard of 500 employees shall be used for purposes of
Government procurement of supplies.)
DIVISION
G--RETAIL
TRADE.........................................................
$5.0 in annual gross receipts
(Not
Applicable to Government procurement of supplies. The
nonmanufacturer size standard of 500 employees shall be used
for purposes of Government procurement of supplies.)
* * *
DIVISION
I--SERVICES................................................................
$5.0 in annual gross receipts
EXCEPT:
* * *
7311
Advertising
Agencies.............................................................
$5.0 \1\
7312 Outdoor
Advertising
Services..................................................$5.0
\1\
7313 Radio,
Television, and Publishers Advertising Representatives....$
5.0.
7319
Advertising,
N.E.C.................................................................
$5.0 \1\
7349 Building
Cleaning and Maintenance Service N.E.C.....................
$12.0
7371 Computer
Programming
Services............................................ $18.0
7372
Prepackaged
Software...........................................................
$18.0
7373 Computer
Integrated Systems
Design..................................... $18.0
7374 Computer
Processing and Data Preparation and Processing Services..
$18.0.
7375
Information Retrieval
Services................................................
$18.0
SIC
MANUFACTURING TYPE NUMBER OF
EMPLOYEES/ANNUAL RECEIPTS
7376 Computer
Facilities Management
Services................................ $18.0
7377 Computer
Rental and
Leasing.................................................
$18.0
7378 Computer
Maintenance and
Repair........................................... $18.0
7379 Computer
Related Services,
N.E.C........................................... $18.0
* * *
7382 Security
Systems
Services......................................................
$9.0
7389 Business
Services,N.E.C...........................................................$5.0
Map Drafting
Services, Mapmaking (Including Aerial) and
Photogrammetric Mapping
Services...................................................$
3.5
* * *
7699 Repair
Shops and Related Services
N.E.C................................. $ 5.0
7812 Motion
Picture and Video Tape
Production................................. $21.5
7819 Services
Allied to Motion Picture
Production............................... $21.5
7822 Motion
Picture and Video Tape
Distribution................................ $21.5
* * *
8711
Engineering
Services...............................................................
$ 2.5
* * *
Marine
Engineering and Naval
Architecture......................................... $13.5
8712
Architectural Services (Other Than
Naval).................................. $ 2.5
8713 Surveying
Services..................................................................
$ 2.5
8721
Accounting, Auditing, and Bookkeeping
Services......................... $ 6.0
* * *
8741 (Part)
Conference Management
Services.................................... $ 5.0
(1)
8744
Facilities Support Management
Services...................................... $ 5.0
\2\
Base
Maintenance.............................................................................
$20.0
\3\
Environmental
Remediation
Services.................................................
500 employees or less
\4\
\1\ SIC codes
4724, 6531, 7311, 7312, 7313, 7319, and 8741 (part): As
measured by total revenues, but excluding funds received in
trust for an unaffiliated third party, such as bookings or
sales subject to commissions. The commissions received are
included as revenue.
\2\ Facilities
Management, a component of SIC code 8744, includes
establishments, not elsewhere classified, which provide
overall management and the personnel to perform a variety of
related support services in operating a complete facility in
or around a specific building, or within another business or
Government establishment. Facilities management means
furnishing three or more personnel supply services which may
include, but are not limited to, secretarial services,
typists, telephone answering, reproduction or mimeograph
service, mailing service, financial or business management,
public relations, conference planning, travel arrangements,
word processing, maintaining files and/or libraries,
switchboard operation, writers, bookkeeping, minor office
equipment maintenance and repair, or use of information
systems (not programming).
\3\ SIC code
8744: (1) If one of the activities of base maintenance, as
defined in paragraph (2) of this footnote, can be identified
with a separate industry and that activity (or industry)
accounts for 50 percent or more of the value of an entire
contract, then the proper size standard is that of the
particular industry, and not the base maintenance size
standard. (2) "Base Maintenance" requires the performance of
three or more separate activities in the areas of service or
special trade construction industries. If services are
performed, these activities must each be in a separate SIC
code including, but not limited to, Janitorial and Custodial
Service, Fire Prevention Service, Messenger Service,
Commissary Service, Protective Guard Service, and Grounds
Maintenance and Landscaping Service. If the contract
requires the use of special trade contractors (plumbing,
painting, plastering, carpentry, etc.), all such special
trade construction activities are considered a single
activity and classified as Base Housing Maintenance. Since
Base Housing Maintenance is only one activity, two
additional activities are required for a contract to be
classified as "Base Maintenance."
\4\ SIC code
8744: (1) For SBA assistance as a small business concern in
the industry of Environmental Remediation Services, other
than for Government procurement, a concern must be engaged
primarily in furnishing a range of services for the
remediation of a contaminated environment to an acceptable
condition including, but not limited to, preliminary
assessment, site inspection, testing, remedial
investigation, feasibility studies, remedial design,
containment, remedial action, removal of contaminated
materials, storage of contaminated materials and security
and site closeouts. If one of such activities accounts for
50 percent or more of a concern's total revenues, employees,
or other related factors, the concern's primary industry is
that of the particular industry and not the Environmental
Remediation Services Industry. (2) For purposes of
classifying a Government procurement as Environmental
Remediation Services, the general purpose of the procurement
must be to restore a contaminated environment and also the
procurement must be composed of activities in three or more
separate industries with separate SIC codes or, in some
instances (e.g., engineering), smaller sub-components of SIC
codes with separate, distinct size standards. These
activities may include, but are not limited to, separate
activities in industries such as: Heavy Construction;
Special Trade Construction; Engineering Services;
Architectural Services; Management Services; Refuse Systems;
Sanitary Services, Not Elsewhere Classified; Local Trucking
Without Storage; Testing Laboratories; and Commercial,
Physical and Biological Research. If any activity in the
procurement can be identified with a separate SIC code, or
component of a code with a separate distinct size standard,
and that industry accounts for 50 percent or more of the
value of the entire procurement, then the proper size
standard is the one for that particular industry, and not
the Environmental Remediation Service size standard.
MARAD's
regulations may affect small businesses in the following
programs: (i) procurement awards which include the
administration of contracts under the FAR (48 CFR Chapters
1-99); (ii) section 9 of the Merchant Marine Act of 1916, as
amended (46 App. U.S.C. §808), which prescribes procedures
for ship disposals or transfers of U.S. vessels to the flag
of another country; (iii) applicants for loan guarantees for
both shipyard modernization and vessel construction
projects, both domestic as well as the export vessel program
under Title XI of the Merchant Marine Act of 1936, as
amended (46 App. U.S.C. §§1101, 1271-1279e); (iv) not-for
profit entities as defined under §501 (c)(3) of the Internal
Revenue Code (26 U.S.C. §501(c)(3)), which may seek surplus
vessels from the agency for historical or community
purposes; and (v) small business contractors involved with
the National Defense Reserve Fleet (50 App. U.S.C. §1744)
and those involved in operations of the United States
Merchant Marine Academy (46 App. U.S.C. §§1295a-1295b). This
is not an exhaustive list.
To comply with
the section 213 of the SBREFA, MARAD has elected to provide
small business entities and not-for-profit entities with
information. We reach our constituents by both a News
Release through the Office of Public and Congressional
Affairs and over the Internet via MARAD's home page (http://www.marad.dot.gov)
under "Small Business Information Help," with the following
message:
SMALL
BUSINESS INFORMATION
If you are a
small business or not for profit entity and have an inquiry
concerning any regulation or programs administered by the
Maritime Administration, or need an interpretation as to the
applicability of any regulation, or a Federal Acquisition
Regulation (FAR), we encourage you to contact the Office of
the Chief Counsel, Jay Gordon, Chief of the Division of
Litigation and General Law at 1-800-99-MARAD or via e-mail
at
Jay.Gordon@dot.gov.
Section 223 of
SBREFA requires agencies to establish a policy or program
"to provide for the reduction, and under appropriate
circumstances for the waiver, of civil penalties for
violations of statutory or regulatory requirement by a small
entity. Under appropriate circumstances, an agency may
consider ability to pay in determining penalty assessments
on small entities." To comply with section 223, MARAD has
mitigated the forfeiture of vessels as allowed by Section 9
for violation of its provisions and granted retroactive
approval of transfers, without penalty. In many of these
actions the violators would have been considered small
entities under SBA guidelines. This is the one area in which
MARAD has authority to administer civil penalties. They are
derived from section 9(d) of the Shipping Act of 1916, as
amended (46 App. U.S.C. §808(d)).
In addition to
the many programs MARAD administers that benefit all
constituents, both large and small, MARAD has prepared
comprehensive guidelines, informational packages and
pamphlets which explain in simplified terms how a marine
business can benefit from MARAD's programs. These
information publications benefit small businesses because
these businesses do not have to expend funds on expensive
private consultants. One such success has been interest in
pamphlets explaining the federal loan guarantee program
under Title XI of the Merchant Marine Act of 1936.
MARAD also
employs preferential contracting to small businesses and
encourages small businesses to participate in contract
solicitation and awards. MARAD Small and Disadvantaged
Business Utilization Representatives routinely give seminars
and attend Small Business Administration sponsored programs
as well. MARAD is also very active in encouraging small
businesses to take advantage of set-aside programs under the
FAR.
By March 29,
1998, Federal agencies were required to report on their
efforts to Congress, with the Congressional mandate
requiring all Federal agencies to "develop more accessible
sources of information'' for small entities and "create a
more cooperative regulatory environment among agencies and
small businesses." |
