The Weekly Update for January 29, 2016

DEPARTMENT OF LABOR

• Implementation of the Nondiscrimination and Equal Opportunity Provisions of the Workforce Innovation and Opportunity Act

This week’s report follows, click here if you would like to download a copy.

SMALL BUSINESS ADMINISTRATION

Employee Based Size Standards in Wholesale Trade and Retail Trade

The U.S. Small Business Administration (SBA or Agency) increased 47 small business size standards based on the number of employees.  These increases affect 46 industries in North American Industry Classification System (NAICS) Sector 42, Wholesale Trade, and one industry in NAICS Sector 44-45, Retail Trade.  SBA retained the size standards for the remaining industries in those sectors and the 500 employee size standard for the federal government’s procurement of supplies under the non-manufacturer rule.  The revisions adopted in this rule primarily affect eligibility for SBA’s financial assistance programs, and have no impact on federal procurement programs, 81 CFR 3941.  This rule is effective February 26, 2016.

Small Business Size Standards: Inflation Adjustment to Monetary-Based Size Standards

This rule finalized, without change, the U.S. Small Business Administration’s (SBA) June 12, 2014 interim final rule that adjusted monetary small business size standards (i.e., receipts, assets, net worth, and net income) for inflation that has occurred since the last inflation adjustment in 2008.  Specifically, the interim final rule increased all industry-specific monetary small business size standards by 8.73 percent, except the $750,000 receipts-based size standard for agricultural enterprises established by the Small Business Act.  The interim final rule also increased, by the same rate, the tangible net worth and net income-based alternative size standard for the Small Business Investment Company Program, as well as receipts-based size standards for Sales of Government Property (Other Than Manufacturing) and Stockpile Purchases, 81 CFR 3949.  This rule became effective January 25, 2016.

Industries with Employee-Based Size Standards Not Part of Manufacturing,
Wholesale Trade, or Retail Trade

The U.S. Small Business Administration (SBA) has modified 36 employee-based small business size standards for industries and sub-industries (“exceptions”) in SBA’s table of size standards that are not part of North American Industry Classification System (NAICS) Sector 31-33 (Manufacturing), Sector 42 (Wholesale Trade), or Sector 44-45 (Retail Trade).

Specifically, SBA adopted 750 employees as the size standard for the ERS exception under NAICS 562910 instead of its proposed increase from 500 employees to 1,250 employees.  In addition, SBA maintained the Information Technology Value Added Resellers (ITVAR) exception under NAICS 541519 (Other Computer Related Services) and kept the 150 employee size standard; however, it amended Footnote 18 to SBA’s table of size standards by adding the requirement that the supply (i.e. computer hardware and software) component of small business set-aside ITVAR contracts must comply with the nonmanufacturing performance requirements or non-manufacturer rule (NMR).

SBA also decreased the size standards from 500 employees to 250 employees for three industries, namely NAICS 212113 (Anthracite Mining), NAICS 212222 (Silver Ore Mining), and NAICS 212291 (Uranium-Radium-Vanadium Ore Mining) and eliminated the Offshore Marine Air Transportation Services exception under NAICS 481211 and 481212, as well as the Offshore Marine Services exception under NAICS Subsector 483 and their $30.5 million receipts-based size standard.  This change includes removing Footnote 15 from the table of size standards, 81 CFR 4436.  This rule is effective February 26, 2016. 

Small Business Size Standards for Manufacturing

The U.S. Small Business Administration (SBA) increased small business size standards for 209 industries in North American Industry Classification System (NAICS) Sector 31-33, Manufacturing.  SBA also modified the size standard for NAICS 324110, Petroleum Refiners, by increasing the refining capacity component of the size standard to 200,000 barrels per calendar day for businesses that are primarily engaged in petroleum refining and by eliminating the requirement that 90 percent of the output to be delivered be refined by the successful bidder from either crude oil or bona fide feedstocks.  SBA also updated Footnote 5 to NAICS 326211 to reflect the current Census Product Classification Codes 3262111 and 3262113, 81 CFR 4469.   This rule is effective February 26, 2016.

DEPARTMENT OF LABOR

Implementation of the Nondiscrimination and Equal Opportunity Provisions of the Workforce Innovation and Opportunity Act

The U.S. Department of Labor (Department) is proposing to issue nondiscrimination and equal opportunity regulations, replacing its regulation which implemented Section 188 of the Workforce Innovation and Opportunity Act (WIOA).  Section 188 of WIOA prohibits the exclusion of an individual from participation in, denial of the benefits of, discrimination in, or denial of employment in the administration of, or in connection with, any programs and activities funded or otherwise financially assisted in whole or in part under Title I of WIOA because of race, color, religion, sex, national origin, age, disability, political affiliation or belief, and for beneficiaries only, citizenship status, or participation in a program or activity that receives financial assistance under Title I of WIOA.

These proposed regulations would update the nondiscrimination and equal opportunity regulation consistent with current law and address its application to current workforce development and workplace practices and issues.  This notice of proposed rule revises the final rule issued in July 2015, and generally carries over the policies and procedures found in Department regulations, 81 CFR 4494.  Comments are due by March 28, 2016.