45212 Federal Register / Vol. 82, No. 187 / Thursday, September 28, 2017 / Proposed Rules 

Subpart C—[Amended] 

■ 9. Designate the subpart labeled ‘‘Free 

and Restricted Percentages’’ as subpart 

C. 

Subpart D—[Amended] 

■ 10. Designate the subpart labeled 

‘‘Assessment Rates’’ as subpart D. 

Subpart E—Administrative 

Requirements 

■ 11. Designate the subpart labeled 

‘‘Administrative Rules and Regulations’’ 

as subpart E and revise the heading as 

shown above. 

Dated: September 14, 2017. 

Bruce Summers, 

Acting Administrator, Agricultural Marketing 

Service. 

[FR Doc. 2017–19920 Filed 9–27–17; 8:45 am] 

BILLING CODE 3410–02–P 

SMALL BUSINESS ADMINISTRATION 

13 CFR Part 134 

RIN 3245–AG87 

Rules of Practice for Protests and 

Appeals Regarding Eligibility for 

Inclusion in the U.S. Department of 

Veterans Affairs, Center for 

Verification and Evaluation Database 

AGENCY: U.S. Small Business 

Administration. 

ACTION: Proposed rule. 

SUMMARY: The U.S. Small Business 

Administration (SBA) is proposing to 

amend the rules of practice of its Office 

of Hearings and Appeals (OHA) to 

implement procedures for protests of 

eligibility for inclusion in the 

Department of Veterans Affairs (VA) 

Center for Verification and Evaluation 

(CVE) database, and procedures for 

appeals of denials and cancellations of 

inclusion in the CVE database. These 

amendments would be in accordance 

with Sections 1832 and 1833 of the 

National Defense Authorization Act for 

Fiscal Year 2017 (NDAA 2017). 

DATES: Comments must be received on 

or before October 30, 2017. 

ADDRESSES: You may submit comments, 

identified by RIN 3245–AG87 by any of 

the following methods: 

• Federal eRulemaking Portal: http:// 

www.regulations.gov. Follow the 

instructions for submitting comments. 

• Mail, Hand Delivery/Courier: 

Delorice Price Ford, Assistant 

Administrator for Hearings and 

Appeals, U.S. Small Business 

Administration, 409 Third Street SW., 

Washington, DC 20416. 

SBA will post all comments on 

www.regulations.gov. If you wish to 

submit confidential business 

information (CBI) as defined in the User 

Notice at www.regulations.gov, please 

submit the information to Daniel K. 

George, Attorney Advisor, Office of 

Hearings and Appeals, U.S. Small 

Business Administration, 409 Third 

Street SW., Washington, DC 20416, or 

send an email to Daniel.George@

sba.gov. Highlight the information that 

you consider to be CBI and explain why 

you believe SBA should hold this 

information as confidential. SBA will 

review the information and make the 

final determination whether it will 

publish the information. 

FOR FURTHER INFORMATION CONTACT: 

Daniel K. George, Attorney Advisor, at 

(202) 401–8200 or Daniel.George@

sba.gov. 

SUPPLEMENTARY INFORMATION: 

Background 

Sections 1832 and 1833 of the NDAA 

2017 authorized the SBA’s OHA to 

determine protests and appeals related 

to inclusion in the CVE database. In 

order to implement these sections, this 

proposed rule would amend OHA’s 

jurisdiction at subparts A and B of 13 

CFR part 134 to include protests of 

eligibility for inclusion in the CVE 

database and appeals of denials and 

cancellations of inclusion in the CVE 

database. In addition, the proposed rule 

would create a new subpart J in 13 CFR 

part 134 to set out detailed rules of 

practice for protests of eligibility for 

inclusion in the VA CVE database, and 

a new subpart K to set out detailed rules 

of practice for appeals of denials and 

cancellations of verification for 

inclusion in the VA’s CVE database. 

Section-by-Section Analysis 

A. 13 CFR Part 134 Subparts A and B 

SBA proposes to amend § 134.102, the 

rules for establishing OHA jurisdiction, 

to add protests of eligibility for 

inclusion in the CVE database and 

appeals of denials and cancellations of 

inclusion in the CVE database, as two 

new types of proceedings over which 

OHA would have jurisdiction. New 

§ 134.102(u) would allow for protests of 

eligibility for inclusion in the CVE 

database. New § 134.102(v) would allow 

for appeals of denials and cancellations 

of inclusion in the CVE database. 

SBA also proposes to amend 

§ 134.201(b) by adding new paragraphs 

(8) and (9) to include protests of 

eligibility for inclusion in the CVE 

database and appeals of denials and 

cancellations of inclusion in the CVE 

database. As a result of these new 

paragraphs, existing § 134.201(b)(8) 

would be redesignated as 

§ 134.201(b)(10). 

B. 13 CFR Part 134, Subpart J 

SBA proposes to add new subpart J, 

consisting of §§ 134.1001–1013, in order 

to conform OHA’s rules of practice for 

protests of eligibility for inclusion in the 

CVE database (CVE Protests). As a 

result, the new rules of practice for 

protests of eligibility for inclusion in the 

CVE database would mirror SBA’s 

existing rules for protests of servicedisabled veteran owned small 

businesses, found in 13 CFR part 125 

subpart D. 

Proposed § 134.1001(b) states that the 

provisions of subparts A and B also 

apply to protests of eligibility for 

inclusion in the CVE database. Section 

134.1001(c) adds that the protest 

procedures are separate from those 

governing Service-Disabled VeteranOwned Small Business Concern (SDVO 

SBC) protests for non-VA procurements, 

which are subject to 13 CFR part 125. 

Section 134.1001(d) states that protests 

of a concern’s eligibility for a non-VA 

procurement as an SDVO SBC are 

governed by 13 CFR part 125. In 

addition, § 134.1001(e) specifies that 

appeals that relate to a determination 

made by the SBA’s Director, Office of 

Government Contracting (D/GC) are 

governed by subpart E of 13 CFR part 

125. 

As proposed in § 134.1002, the 

Secretary of the VA, or his/her designee, 

as well as the Contracting Officer (CO) 

or an offeror in a VA procurement 

awarded to a small business may file a 

CVE Protest. A protesting offeror need 

not be the offeror next in line for award. 

Section 134.1003 establishes the 

grounds for filing a CVE Protest as 

status, and ownership and control. 

Paragraph (c) requires the Judge to 

determine a protested concern’s 

eligibility for inclusion in the CVE as of 

the date the protest was filed. 

Section 134.1004(a) establishes the 

deadlines for filing a CVE Protest, which 

is at any time for the Secretary of the VA 

and any time during the life of a 

contract for the CO. Paragraph (a)(2)(i) 

instructs that an offeror must file its 

protest within five days of being 

notified of the identity of the apparent 

awardee. Paragraphs (a)(3) and (4) 

indicate the rule for counting days and 

that any untimely protest will be 

dismissed. Paragraph (b) describes the 

methods for filing a CVE Protest by 

interested parties. A CVE Protest 

brought by an offeror is filed with the 

CO, who then forwards the protest to 

OHA. 


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Section 134.1005 specifies the 

contents that every CVE Protest must 

have. Paragraph (b) would require a 

protective order be requested within 

five days of a protest being filed. 

Section 134.1006 would apply the 

servicing and filing requirements found 

at § 134.204. 

Section 134.1007 would establish the 

process of CVE Protests as follows: 

Paragraph (a) would require OHA to 

issue a notice and order if the protest is 

found to be timely, specific, and based 

on protectable allegations; paragraph (b) 

would require dismissal of a protest if 

the Judge determines the protest to be 

premature, untimely, nonspecific, or 

based on non-protestable allegations; 

paragraph (c) would require the Director 

of the CVE (D/CVE) to send the case file 

to OHA by the deadline specified in the 

notice and order; paragraph (d) 

describes the process for requesting a 

protective order; paragraph (e) allows 

for supplemental arguments after a 

protester reviews the CVE case file; 

paragraph (f) allows for a response to a 

protest within 15 days of the date the 

protest was filed; and paragraph (g) 

would require the Judge to base the 

decision on the case file and 

information provided by the parties or 

information requested by the Judge. The 

Judge may also investigate issues 

beyond those raised by the parties. 

Paragraph (h) proposes to allow a CO to 

award the contract after a protest is filed 

but before a decision is reached if the 

CO determines the public interest will 

be protected and notifies the Judge of 

his/her decision; paragraph (i) would 

require OHA to serve all parties with the 

decision, which would be considered a 

final agency decision; finally, paragraph 

(j) stipulates the effects of the decision 

upon the protested concern and the 

contract at issue. 

Section 134.1008 prohibits discovery 

in CVE Protest proceedings. 

Section 134.1009 allows for oral 

hearings only in extraordinary 

circumstances, as found by the Judge, 

and establishes that if a hearing is 

allowed, it would be conducted in 

accordance with the rules of practice in 

subpart B of Part 134. 

Section 134.1010 establishes the 

standard of review as preponderance of 

the evidence, in which the burden of 

proof falls on the protested firm, not the 

protester. 

Section 134.1011 specifies that the 

Judge will give greater weight to 

specific, signed, factual evidence than to 

unsupported allegations and opinions, 

and provides that the Judge may draw 

an adverse inference from failure to 

produce relevant information. 

Section 134.1012 applies the 

provisions of § 134.225 where relevant. 

Under § 134.1013, there will be no 

appeal of OHA’s decision on a CVE 

Protest. However, paragraph (a) allows 

for the Judge to reconsider a CVE Protest 

decision if a party to the proceeding 

files a petition for reconsideration 

within twenty (20) calendar days after 

issuance of the written decision. The 

request for reconsideration must clearly 

show an error of fact or law material to 

the decision. The Judge may also 

reconsider a decision on his or her own 

initiative. Paragraph (b) states that if the 

Judge reverses the initial decision on 

reconsideration, the CO must comply 

with § 134.1007(j) in applying the new 

decision’s results. 

C. 13 CFR Part 134, Subpart K 

The rule proposes a new subpart K to 

cover the procedures for filing appeals 

of denials and cancellations of 

verification for inclusion in the VA CVE 

database (CVE Appeals). Section 

134.1101 states that the provisions of 

subparts A and B also apply to CVE 

Appeals. Section 134.1101(c) adds that 

the appeal procedures for CVE Appeals 

are separate from those governing SDVO 

SBC status appeals based on D/GC 

determinations, which are subject to 13 

CFR 134 subpart E. Paragraph (d) states 

that protests of a concern’s eligibility for 

inclusion in the VA’s CVE database are 

governed by 13 CFR 134 subpart J. 

Section 134.1102 establishes standing 

to file a CVE Appeal upon a concern 

that has been denied verification of its 

CVE status or had its CVE status 

cancelled. 

Section 134.1103 permits CVE 

Appeals to OHA as long as the denial or 

cancellation was not based on the 

concern’s failure to meet any veteran or 

service-disabled veteran eligibility 

criteria. 

Section 134.1104 requires CVE 

Appeals to be filed within 10 business 

days of being notified that the CVE 

status has been denied or cancelled. 

Paragraph (b) establishes the rules for 

counting days as those in § 134.202(d). 

Paragraph (c) requires OHA to dismiss 

any untimely appeal. 

Section 134.1105(a) requires the 

appeal petition to include a copy of the 

denial or cancellation, a statement as to 

why the cancellation or denial is in 

error, any information the appellant 

believes the Judge should consider, and 

the name, address, telephone number, 

facsimile number, and signature of 

appellant or its attorney. Paragraph (b) 

requires that the appellant serve copies 

of the appeal upon the D/CVE and VA 

counsel. Paragraph (c) requires all 

appeal petitions to include a certificate 

of service that meets the requirements of 

§ 134.204(d). Paragraph (d) allows the 

Judge to dismiss appeal petitions that do 

not meet all the requirements of 

§ 134.1105. 

Section 134.1106 applies the 

provisions in § 134.204 regarding the 

service and filing requirements of all 

pleadings and submissions allowed 

under 13 CFR part 134, subpart K. 

Section 134.1107 requires the D/CVE 

to send OHA the entire case file relating 

to the denial or cancellation, by the 

deadline specified in the notice and 

order. The case file must be 

authenticated and certified that it is the 

true and correct copy of the case file, to 

the best knowledge of the D/CVE. 

Section 134.1108 would permit a 

response to the appeal petition. 

Paragraph (a) allows the D/CVE, or his/ 

her designee, or VA counsel, to respond 

to the appeal. Paragraph (b) establishes 

the close of record as 15 days after the 

Judge issues a notice and order 

informing all parties of the filing of the 

appeal. The notice and order would 

establish the date all responses to the 

appeal petition would be due. Paragraph 

(c) requires all respondents to serve 

their response upon all parties 

identified in the certificate of service 

attached to the appeal petition, as 

required by § 134.1105. Paragraph (d) 

prevents a reply to a response, unless 

allowed by the Judge. 

Section 134.1109 does not allow for 

discovery or oral hearings in CVE 

Appeals. 

Section 134.1110 prevents new 

evidence in CVE Appeals, unless good 

cause is shown. 

Under § 134.1111, the standard of 

review for CVE Appeals would be 

whether the denial or cancellation by 

the D/CVE was based on clear error of 

fact or law, which the appellant would 

have the burden of proof. 

Under § 134.1112(a), the Judge will 

decide a CVE Appeal, if practicable, 

within 60 calendar days after the close 

of record. Paragraph (b) requires the 

decision to contain findings of fact and 

conclusions of law, and any reasons for 

those findings and conclusions, and any 

relief so ordered. Paragraph (c) requires 

decisions to be based primarily on the 

evidence in the CVE case file, and 

arguments made during the appeal 

process. The Judge will, however, have 

the ability to consider issues that are 

beyond those raised by any pleading or 

in the denial or cancellation letter. 

Paragraph (d) establishes a Judge’s 

decision as the final agency decision, 

becoming effective immediately. If OHA 

dismisses an appeal of a D/CVE denial 

or cancellation, the D/CVE 

determination remains in effect. 


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45214 Federal Register / Vol. 82, No. 187 / Thursday, September 28, 2017 / Proposed Rules 

Paragraph (e) requires OHA to serve a 

copy of the decision on all parties, or 

their counsel if represented. Paragraph 

(f) stipulates that if the appeal is granted 

and the appellant is found eligible for 

inclusion in the CVE database, the D/ 

CVE must reinstate or include the 

appellant in the CVE database 

immediately. Paragraph (g) allows any 

party that has appeared in the 

proceeding, or the Secretary of VA or 

his or her designee, to file a petition for 

reconsideration. The petition must be 

filed within twenty (20) calendar days 

after service of the written decision, 

upon a clear showing of an error of fact 

or law material to the decision. The 

Judge also may reconsider a decision on 

his or her own initiative. 

Compliance With Executive Orders 

12866, 12988, 13132, 13771, and the 

Paperwork Reduction Act (44 U.S.C. 

Ch. 35), and the Regulatory Flexibility 

Act (5 U.S.C. 601–612) 

Executive Order 12866 

OMB has determined that this rule 

does not constitute a ‘‘significant 

regulatory action’’ under Executive 

Order 12866. This rule is also not a 

major rule under the Congressional 

Review Act, 5 U.S.C. 800. This proposed 

rule would amend the rules of practice 

for the SBA’s OHA in order to 

implement procedures for protests of 

eligibility for inclusion in the CVE 

database and appeals of denials and 

cancellations of inclusion in the CVE 

database. As such, the rule has no effect 

on the amount or dollar value of any 

Federal contract requirements or of any 

financial assistance provided through 

SBA or VA. Therefore, the rule is not 

likely to have an annual economic effect 

of $100 million or more, result in a 

major increase in costs or prices, or have 

a significant adverse effect on 

competition or the United States 

economy. In addition, this rule does not 

create a serious inconsistency or 

otherwise interfere with an action taken 

or planned by another agency, 

materially alter the budgetary impact of 

entitlements, grants, user fees, loan 

programs or the rights and obligations of 

such recipients, nor raise novel legal or 

policy issues arising out of legal 

mandates, the President’s priorities, or 

the principles set forth in the Executive 

Order. 

Executive Order 12988 

This action meets applicable 

standards set forth in section 3(a) and 

3(b)(2) of Executive Order 12988, Civil 

Justice Reform, to minimize litigation, 

eliminate ambiguity, and reduce 

burden. The action does not have 

retroactive or preemptive effect. 

Executive Order 13132 

This rule does not have Federalism 

implications as defined in Executive 

Order 13132. It will not have substantial 

direct effects on the States, on the 

relationship between the national 

government and the States, or on the 

distribution of power and 

responsibilities among the various 

levels of government, as specified in the 

Executive Order. As such it does not 

warrant the preparation of a Federalism 

Assessment. 

Executive Order 13771 

This proposed rule is not expected to 

be an Executive Order 13771 regulatory 

action because this proposed rule is not 

significant under Executive Order 

12866. 

Paperwork Reduction Act 

The SBA has determined that this rule 

does not impose additional reporting or 

recordkeeping requirements under the 

Paperwork Reduction Act, 44 U.S.C. 

Chapter 35. 

Regulatory Flexibility Act 

The Regulatory Flexibility Act of 

1980, as amended (RFA), 5 U.S.C. 601– 

612, requires Federal agencies to 

prepare an initial regulatory flexibility 

analysis (IRFA) to consider the potential 

impact of the regulations on small 

entities. Small entities include small 

businesses, small not-for-profit 

organizations, and small governmental 

jurisdictions. Section 605 of the RFA 

allows an agency to certify a rule, in lieu 

of preparing an IRFA, if the rulemaking 

is not expected to have a significant 

economic impact on a substantial 

number of small entities. 

This proposed rule would revise the 

regulations governing cases before 

SBA’s Office of Hearings and Appeals 

(OHA), SBA’s administrative tribunal. 

These regulations are procedural by 

nature. Specifically, the proposed rule 

would establish rules of practice for the 

SBA’s OHA in order to implement 

protests of eligibility for inclusion in the 

CVE database and appeals of denials 

and cancellations of inclusion in the 

CVE database, new types of 

administrative litigation mandated by 

sections 1832 and 1833 of the National 

Defense Authorization Act for Fiscal 

Year 2017. This legislation provides a 

new statutory right to challenge 

eligibility for inclusion in the CVE 

database, as well as denials and 

cancellation of inclusion in the CVE 

database. This proposed rule merely 

provides the rules of practice at OHA for 

the orderly hearing and disposition of 

CVE database inclusion protests and 

denials and cancellations of CVE 

database inclusion. While SBA does not 

anticipate that this proposed rule would 

have a significant economic impact on 

any small business, we do welcome 

comments from any small business 

setting out how and to what degree this 

proposed rule would affect it 

economically. Therefore, the 

Administrator of SBA certifies under 5 

U.S.C. 605(b) that this proposed rule 

would not have a significant economic 

impact on a substantial number of small 

entities. 

List of Subjects in 13 CFR Part 134 

Administrative practice and 

procedure, Claims, Equal access to 

justice, Lawyers, Organization and 

functions (government agencies). 

For the reasons stated in the 

preamble, SBA proposes to amend 13 

CFR part 134 as follows: 

PART 134—RULES OF PROCEDURE 

GOVERNING CASES BEFORE THE 

OFFICE OF HEARINGS AND APPEALS 

■ 1. The authority citation for part 134 

is revised to read as follows: 

Authority: 5 U.S.C. 504; 15 U.S.C. 632, 

634(b)(6), 634(i), 637(a), 648(l), 656(i), and 

687(c); 38 U.S.C. 8127(f); E.O. 12549, 51 FR 

6370, 3 CFR, 1986 Comp., p. 189. 

■ 2. Amend § 134.102 by adding 

paragraphs (u) and (v) to read as 

follows: 

§ 134.102 Jurisdiction of OHA. 

* * * * * 

(u) Protests of eligibility for inclusion 

in the Department of Veterans Affairs 

Center for Verification and Evaluation 

(CVE) database; 

(v) Appeals of denials and 

cancellations of inclusion in the CVE 

database. 

■ 3. Amend § 134.201 by: 

■ a. Removing the word ‘‘and’’ in 

paragraph (b)(7); 

■ b. Redesignating paragraph (b)(8) as 

paragraph (b)(10); 

■ c. Adding new paragraphs (b)(8) and 

(b)(9). 

The additions read as follows: 

§ 134.201 Scope of the rules in this 

Subpart B. 

* * * * * 

(b) * * * 

(8) For protests of eligibility for 

inclusion in the Center for Verification 

and Evaluation (CVE) database, in 

subpart J of this part; 

(9) For appeals of denials and 

cancellations of inclusion in the CVE 

database, in subpart K of this part; and 

* * * * * 


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■ 4. Add subpart J to read as follows: 

Subpart J—Rules of Practice for Protests of 

Eligibility for Inclusion in the U.S. 

Department of Veterans Affairs (VA) Center 

for Verification and Evaluation (CVE) 

Database (CVE Protests) 

Sec. 

134.1001 Scope of rules. 

134.1002 Who may file a CVE Protest? 

134.1003 Grounds for filing a CVE Protest. 

134.1004 Commencement of CVE Protests. 

134.1005 Contents of the CVE Protest. 

134.1006 Service and filing requirements. 

134.1007 Processing a CVE Protest. 

134.1008 Discovery. 

134.1009 Oral hearings. 

134.1010 Standard of review and burden of 

proof. 

134.1011 Weight of evidence. 

134.1012 The record. 

134.1013 Request for reconsideration. 

Authority: 38 U.S.C. 8127(f)(8)(B). 

Subpart J—Rules of Practice for 

Protests of Eligibility for Inclusion in 

the U.S. Department of Veterans 

Affairs (VA) Center for Verification and 

Evaluation (CVE) Database (CVE 

Protests) 

§ 134.1001 Scope of rules. 

(a) The rules of practice in this 

subpart J apply to Department of 

Veterans Affairs (VA) Center for 

Verification and Evaluation protests 

(CVE Protests). 

(b) Except where inconsistent with 

this subpart, the provisions of subparts 

A and B of this part apply to protests 

listed in paragraph (a) of this section. 

(c) The protest procedures described 

in this subpart are separate from those 

governing protests and appeals of a 

concern’s size or status as a ServiceDisabled Veteran-Owned Small 

Business Concern (SDVO SBC) for a 

non-Department of Veterans Affairs 

(non-VA) procurement. All protests 

relating to whether a veteran-owned 

concern is a ‘‘small’’ business for 

purposes of any Federal program are 

subject to part 121 of this chapter and 

must be filed in accordance with that 

part. If a protester protests both the size 

of the concern and the concern’s 

eligibility for the CVE database, SBA 

will process each protest concurrently. 

All protests relating to a concern’s status 

as a SDVO SBC for a non-VA 

procurement are subject to part 125 of 

this chapter and must be filed in 

accordance with that part. SBA does not 

review issues concerning contract 

administration. 

(d) Protests of a concern’s eligibility 

for a non-VA procurement as a SDVO 

SBC are governed by 13 CFR part 125 

subpart D. 

(e) Appeals relating to determinations 

made by SBA’s Director, Office of 

Government Contracting regarding 

SDVO SBC status are governed by 

subpart E of this part. 

(f) Appeals of denials and 

cancellations of verification for 

inclusion in the CVE database are 

governed by subpart K of this part. 

§ 134.1002 Who may file a CVE Protest? 

A CVE Protest may be filed by: 

(a) The Secretary of the VA, or his/her 

designee; or 

(b) In the case of a small business that 

is awarded a contract for a VA 

procurement, the contracting officer or 

an offeror. 

§ 134.1003 Grounds for filing a CVE 

Protest. 

(a) Status. In cases where the protest 

is based on service-connected disability, 

permanent and severe disability, or 

veteran status, the Judge will only 

consider a protest that presents specific 

allegations supporting the contention 

that the owner(s) cannot provide 

documentation from the VA, 

Department of Defense, or the U.S. 

National Archives and Records 

Administration to show that they meet 

the definition of veteran, servicedisabled veteran, or service-disabled 

veteran with a permanent and severe 

disability. 

(b) Ownership and control. In cases 

where the protest is based on ownership 

and control, the Judge will consider a 

protest only if the protester presents 

credible evidence that the concern is not 

51% owned and controlled by one or 

more veterans or service-disabled 

veterans. 

(c) Date for Determining Eligibility. 

The Judge will determine a protested 

concern’s eligibility for inclusion in the 

CVE database as of the date the protest 

was filed. 

§ 134.1004 Commencement of CVE 

Protests. 

(a) Timeliness. (1) The Secretary of 

the VA, or his/her designee, may file a 

CVE Protest at any time. 

(2) Where the CVE Protest is in 

connection with a VA procurement: 

(i) An offeror must file a CVE Protest 

within five business days of notification 

of the apparent awardee’s identity. 

(ii) A contracting officer may file a 

CVE Protest at any time during the life 

of the VA contract. 

(3) The rule for counting days is in 

§ 134.202(d). 

(4) An untimely protest will be 

dismissed. 

(b) Filing. (1) Private Parties. 

Interested parties, other than the 

contracting officer or Secretary of the 

VA or his/her designee, must deliver 

their CVE Protests in person, by email, 

by facsimile, by express delivery 

service, or by U.S. mail (postmarked 

within the applicable time period) to the 

contracting officer. 

(2) Referral to OHA. The contracting 

officer must forward to OHA any nonpremature CVE Protest received, 

notwithstanding whether he/she 

believes it is sufficiently specific or 

timely. The contracting officer must 

send all CVE Protests, along with a 

referral letter, directly to OHA, 

addressed to Office of Hearings and 

Appeals, U.S. Small Business 

Administration, 409 Third Street SW., 

Washington, DC 20416, by email at 

OHAfilings@sba.gov, or by facsimile to 

(202) 205–6390, marked Attn: CVE 

Protest. The referral letter must include 

information pertaining to the 

solicitation that may be necessary for 

OHA to determine timeliness and 

standing, including: 

(i) The solicitation number; 

(ii) The name, address, telephone 

number, email address, and facsimile 

number of the contracting officer; 

(iii) Whether the contract was sole 

source or set-aside; 

(iv) Whether the protester submitted 

an offer; 

(v) Whether the protested concern 

was the apparent successful offeror; 

(vi) Whether the procurement was 

conducted using sealed bid or 

negotiated procedures; 

(vii) The bid opening date, if 

applicable; 

(viii) When the protest was submitted 

to the contracting officer; 

(ix) When the protester received 

notification about the apparent 

successful offeror, if applicable; and 

(x) Whether a contract has been 

awarded. 

(3) Protests filed by Secretary of the 

VA. The Secretary of VA or his/her 

designee must submit his/her CVE 

Protest directly to OHA in accordance 

with the procedures in § 134.204. 

(4) Protests filed by a contracting 

officer. The contracting officer must 

submit his/her CVE Protest directly to 

OHA in accordance with the procedures 

in § 134.204. The protest should include 

the information set forth in the referral 

letter in Paragraph (2). 

§ 134.1005 Contents of the CVE Protest. 

(a) CVE Protests must be in writing. 

There is no required format for a CVE 

Protest, but it must include the 

following: 

(1) The solicitation or contract 

number, if applicable; 

(2) Specific allegations supported by 

credible evidence that the concern does 

not meet the eligibility requirements for 


jstallworth on DSKBBY8HB2PROD with PROPOSALS
45216 Federal Register / Vol. 82, No. 187 / Thursday, September 28, 2017 / Proposed Rules 

inclusion in the CVE database, listed in 

§ 134,1003; 

(3) Any other pertinent information 

the Judge should consider; and 

(4) The name, address, telephone 

number, and email address or facsimile 

number, if available, and signature of 

the protester or its attorney. 

(b) If the protester intends to seek 

access to the CVE case file under 

§ 134.205, the protester should include 

in its protest a request for a protective 

order. Unless good cause is shown, a 

protester must request a protective order 

within five days of filing the protest. 

§ 134.1006 Service and filing 

requirements. 

The provisions of § 134.204 apply to 

the service and filing of all pleadings 

and other submissions permitted under 

this subpart. 

§ 134.1007 Processing a CVE Protest. 

(a) Notice and order. If the Judge 

determines that the protest is timely, 

sufficiently specific, and based upon 

protestable allegations, the Judge will 

issue a notice and order, notifying the 

protester, the protested concern, the 

Director, CVE (D/CVE), VA Counsel, 

and, if applicable, the contracting officer 

of the date OHA received the protest 

and ordering a due date for responses. 

(b) Dismissal of protest. If the Judge 

determines that the protest is premature, 

untimely, nonspecific, or is based on 

non-protestable allegations, the Judge 

will dismiss the protest and will send 

the contracting officer, D/CVE, and the 

protester a notice of dismissal, citing the 

reason(s) for the dismissal. The 

dismissal is a final agency action. 

(c) Transmission of the case file. 

Upon receipt of a notice and order, the 

D/CVE must deliver to OHA the entire 

case file relating to the protested 

concern’s inclusion in the CVE 

database. The notice and order will 

establish the timetable for transmitting 

the case file to OHA. The D/CVE must 

certify and authenticate that the case 

file, to the best of his/her knowledge, is 

a true and correct copy of the case file. 

(d) Protective order. A protester 

seeking access to the CVE case file must 

file a timely request for a protective 

order under § 134.205. Except for good 

cause, a protester must request a 

protective order within five days of 

filing the protest. Even after issuance of 

a protective order, OHA will not 

disclose income tax returns or 

privileged information. 

(e) Supplemental allegations. If, after 

viewing documents in the CVE case file 

for the first time under a protective 

order, a protester wishes to supplement 

its protest with additional argument, the 

protester may do so. Any such 

supplement is due at OHA no later than 

15 days from the date the protester 

receives or reviews the CVE case file. 

(f) Response. (1) The protested 

concern, the D/CVE, the contracting 

officer, and any other interested party 

may respond to the protest and 

supplemental protest, if one is filed. The 

response is due no later than 15 days 

from the date the protest or 

supplemental protest was filed with 

OHA. The record closes the date the 

final response is due. 

(2) Service. The respondent must 

serve its response upon the protester or 

its counsel and upon each of the 

persons identified in the certificate of 

service attached to the notice and order 

or, if a protective order is issued, in 

accordance with the terms of the 

protective order. 

(3) Reply to a response. No reply to 

a response will be permitted unless the 

Judge directs otherwise. 

(g) Basis for decision. The decision 

will be based primarily on the case file 

and information provided by the 

protester, the protested concern, and 

any other parties. However, the Judge 

may investigate issues beyond those 

raised in the protest and may use other 

information or make requests for 

additional information to the protester, 

the protested concern, or VA. 

(h) Award of contract. The contracting 

officer may award a contract during the 

period between the date he/she receives 

a protest and the date the Judge issues 

a decision only if the contracting officer 

determines that an award must be made 

to protect the public interest and 

notifies the Judge in writing of any such 

determination. Notwithstanding such a 

determination, the provisions of 

paragraph (j) of this section shall apply 

to the procurement in question. 

(i) The decision. OHA will serve a 

copy of the written decision on each 

party, or, if represented by counsel, on 

its counsel. The decision is considered 

the final agency action, and it becomes 

effective upon issuance. 

(j) Effect of decision. (1) A contracting 

officer may award a contract to a 

protested concern after the Judge has 

determined either that the protested 

concern is eligible for inclusion in the 

CVE database or has dismissed all 

protests against it. 

(2) A contracting officer shall not 

award a contract to a protested concern 

that the Judge has determined is not 

eligible for inclusion in the CVE 

database. If the contracting officer has 

already made an award under paragraph 

(h) of this section, the contracting officer 

shall either terminate the contract or not 

exercise the next option. 

(3) The contracting officer must 

update the Federal Procurement Data 

System and other procurement reporting 

databases to reflect the Judge’s decision. 

(4) If the Judge finds the protested 

concern ineligible for inclusion in the 

CVE database, D/CVE must immediately 

remove the protested concern from the 

CVE database. 

(5) A concern found to be ineligible 

may not submit an offer on a future VA 

procurement until the protested concern 

reapplies to the Vendor Information 

Pages Verification Program and has been 

reentered into the CVE database. 

§ 134.1008 Discovery. 

Discovery will not be permitted in 

CVE Protest proceedings. 

§ 134.1009 Oral hearings. 

Oral hearings will be held in CVE 

Protest proceedings only upon a finding 

by the Judge of extraordinary 

circumstances. If such an oral hearing is 

ordered, the proceeding shall be 

conducted in accordance with those 

rules of subpart B of this part as the 

Judge deems appropriate. 

§ 134.1010 Standard of review and burden 

of proof. 

The protested concern has the burden 

of proving its eligibility, by a 

preponderance of the evidence. 

§ 134.1011 Weight of evidence. 

The Judge will give greater weight to 

specific, signed, factual evidence than to 

general, unsupported allegations or 

opinions. In the case of refusal or failure 

to furnish requested information within 

a required time period, the Judge may 

assume that disclosure would be 

contrary to the interests of the party 

failing to make disclosure. 

§ 134.1012 The record. 

Where relevant, the provisions of 

§ 134.225 apply. In a protest under this 

subpart, the contents of the record also 

include the case file or solicitation 

submitted to OHA in accordance with 

§ 134.1007. 

§ 134.1013 Request for Reconsideration. 

The decision on a CVE Protest may 

not be appealed. However: 

(a) The Judge may reconsider a CVE 

Protest decision. Any party that has 

appeared in the proceeding, or the 

Secretary of VA or his/her designee, 

may request reconsideration by filing 

with OHA and serving a petition for 

reconsideration on all the parties to the 

CVE Protest within twenty (20) calendar 

days after service of the written 

decision. The request for 

reconsideration must clearly show an 

error of fact or law material to the 


jstallworth on DSKBBY8HB2PROD with PROPOSALS
Federal Register / Vol. 82, No. 187 / Thursday, September 28, 2017 / Proposed Rules 45217 

decision. The Judge may also reconsider 

a decision on his or her own initiative. 

(b) If the Judge reverses his or her 

initial decision on reconsideration, the 

contracting officer must follow 

§ 134.1007(j) in applying the new 

decision’s results. 

■ 5. Add subpart K to read as follows: 

Subpart K—Rules of Practice for Appeals of 

Denials and Cancellations of Verification for 

Inclusion in the U.S. Department of 

Veterans Affairs (VA) Center for Verification 

and Evaluation (CVE) Database (CVE 

Appeals) 

Sec. 

134.1101 Scope of rules. 

134.1102 Who may file a CVE Appeal? 

134.1103 Grounds for filing a CVE Appeal. 

134.1104 Commencement of CVE Appeals. 

134.1105 The appeal petition. 

134.1106 Service and filing requirements. 

134.1107 Transmission of the case file. 

134.1108 Response to an appeal petition. 

134.1109 Discovery and oral hearings. 

134.1110 New evidence. 

134.1111 Standard of review and burden of 

proof. 

134.1112 The decision. 

Authority: 38 U.S.C. 8127(f)(8)(A). 

Subpart K—Rules of Practice for 

Appeals of Denials and Cancellations 

of Verification for Inclusion in the U.S. 

Department of Veterans Affairs (VA) 

Center for Verification and Evaluation 

(CVE) Database (CVE Appeals) 

§ 134.1101 Scope of rules. 

(a) The rules of practice in this 

subpart K apply to appeals of denials 

and cancellations of verification for 

inclusion in the U.S. Department of 

Veterans Affairs Center for Verification 

and Evaluation Database (CVE Appeals). 

(b) Except where inconsistent with 

this subpart, the provisions of subparts 

A and B of this part apply to appeals 

listed in paragraph (a) of this section. 

(c) Appeals relating to determinations 

made by SBA’s Director, Office of 

Government Contracting regarding 

Service-Disabled Veteran-Owned Small 

Business Concern (SDVO SBC) status 

are governed by subpart E of this part. 

(d) Protests of a concern’s eligibility 

for inclusion in the VA’s CVE database 

are governed by subpart J of this part. 

§ 134.1102 Who may file a CVE Appeal? 

A concern that has been denied 

verification of its CVE status or has had 

its CVE status cancelled may appeal the 

denial or cancellation to OHA. 

§ 134.1103 Grounds for filing a CVE 

Appeal. 

Denials and cancellations of 

verification of CVE status may be 

appealed to OHA, so long as the denial 

or cancellation is not based on the 

failure to meet any veteran or servicedisabled veteran eligibility criteria. 

Such denials and cancellations are final 

VA decisions and not subject to appeal 

to OHA. 

§ 134.1104 Commencement of CVE 

Appeals. 

(a) A concern whose application for 

CVE verification has been denied or 

whose CVE status has been cancelled 

must file its appeal within 10 business 

days of receipt of the denial or 

cancellation. 

(b) The rule for counting days is in 

§ 134.202(d). 

(c) OHA will dismiss an untimely 

appeal. 

§ 134.1105 The appeal petition. 

(a) Format. CVE Appeals must be in 

writing. There is no required format for 

an appeal petition; however, it must 

include the following: 

(1) A copy of the denial or 

cancellation and the date the appellant 

received it; 

(2) A statement of why the 

cancellation or denial is in error; 

(3) Any other pertinent information 

the Judge should consider; and 

(4) The name, address, telephone 

number, and email address or facsimile 

number, if available, and signature of 

the appellant or its attorney. 

(b) Service. The appellant must serve 

copies of the entire appeal petition upon 

the Director, Center for Verification and 

Evaluation (D/CVE) and VA Counsel at 

CVEAppealsService@va.gov. 

(c) Certificate of Service. The 

appellant must attach to the appeal 

petition a signed certificate of service 

meeting the requirements of 

§ 134.204(d). 

(d) Dismissal. An appeal petition that 

does not meet all the requirements of 

this section may be dismissed by the 

Judge at his/her own initiative or upon 

motion of a respondent. 

§ 134.1106 Service and filing 

requirements. 

The provisions of § 134.204 apply to 

the service and filing of all pleadings 

and other submissions permitted under 

this subpart. 

§ 134.1107 Transmission of the case file. 

Once a CVE Appeal is filed, the D/ 

CVE must deliver to OHA the entire 

case file relating to the denial or 

cancellation. The Judge will issue a 

notice and order establishing the 

timetable for transmitting the case file to 

OHA. The D/CVE must certify and 

authenticate that the case file, to the 

best of his/her knowledge, is a true and 

correct copy of the case file. 

§ 134.1108 Response to an appeal petition. 

(a) Who may respond. The D/CVE or 

his/her designee or counsel for VA may 

respond to the CVE Appeal. The 

response should present arguments to 

the issues presented on appeal. 

(b) Time limits. The notice and order 

will inform the parties of the filing of 

the appeal petition, establish the close 

of record as 15 days after service of the 

notice and order, and inform the parties 

that OHA must receive any responses to 

the appeal petition no later than the 

close of record. 

(c) Service. The respondent must 

serve its response upon the appellant 

and upon each of the persons identified 

in the certificate of service attached to 

the appeal petition pursuant to 

§ 134.1105. 

(d) Reply to a response. No reply to 

a response will be permitted unless the 

Judge directs otherwise. 

§ 134.1109 Discovery and oral hearings. 

Discovery will not be permitted and 

oral hearings will not be held. 

§ 134.1110 New evidence. 

Except for good cause shown, 

evidence beyond the case file will not 

be admitted. 

§ 134.1111 Standard of review and burden 

of proof. 

The standard of review is whether the 

D/CVE denial or cancellation was based 

on clear error of fact or law. The 

appellant has the burden of proof, by a 

preponderance of the evidence. 

§ 134.1112 The decision. 

(a) Timing. The Judge shall decide a 

CVE Appeal, insofar as practicable, 

within 60 calendar days after close of 

the record. 

(b) Contents. Following closure of the 

record, the Judge will issue a decision 

containing findings of fact and 

conclusions of law, reasons for such 

findings and conclusions, and any relief 

ordered. 

(c) Basis for decision. Decisions under 

this part will be based primarily on the 

evidence in the CVE case file, arguments 

made on appeal, and any response(s) 

thereto. However, the Judge, in his/her 

sole discretion, may consider issues 

beyond those raised in the pleadings 

and the denial or cancellation letter. 

(d) Finality. The decision is the final 

agency decision and becomes effective 

upon issuance. Where OHA dismisses 

an appeal of a D/CVE denial or 

cancellation, the D/CVE determination 

remains in effect. 

(e) Service. OHA will serve a copy of 

all written decisions on each party, or, 

if represented by counsel, on its 

counsel. 


jstallworth on DSKBBY8HB2PROD with PROPOSALS
45218 Federal Register / Vol. 82, No. 187 / Thursday, September 28, 2017 / Proposed Rules 

(f) Effect. If the Judge grants the 

appeal and finds the appellant eligible 

for inclusion in the CVE database, the 

D/CVE must immediately reinstate or 

include the appellant, as the case may 

be, in the CVE database. 

(g) Reconsideration. A decision of the 

Judge may be reconsidered. Any party 

that has appeared in the proceeding, or 

the Secretary of VA or his or her 

designee, may request reconsideration 

by filing with OHA and serving a 

petition for reconsideration on all 

parties to the CVE Appeal within twenty 

(20) calendar days after service of the 

written decision, upon a clear showing 

of an error of fact or law material to the 

decision. The Judge also may reconsider 

a decision on his or her own initiative. 

Linda E. McMahon, 

Administrator. 

[FR Doc. 2017–20384 Filed 9–27–17; 8:45 am] 

BILLING CODE 8025–01–P 

DEPARTMENT OF TRANSPORTATION 

Federal Aviation Administration 

14 CFR Part 39 

[Docket No. FAA–2017–0650; Product 

Identifier 2017–NE–19–AD] 

RIN 2120–AA64 

Airworthiness Directives; Rolls-Royce 

plc Turbofan Engines 

AGENCY: Federal Aviation 

Administration (FAA), DOT. 

ACTION: Notice of proposed rulemaking 

(NPRM). 

SUMMARY: We propose to adopt a new 

airworthiness directive (AD) for certain 

Rolls-Royce plc (RR) RB211–Trent 875– 

17, RB211–Trent 877–17, RB211–Trent 

884–17, RB211–Trent 884B–17, RB211– 

Trent 892–17, RB211–Trent 892B–17, 

and RB211–Trent 895–17 turbofan 

engines. This proposed AD was 

prompted by low-pressure compressor 

(LPC) case A-frame hollow locating pins 

that may have reduced integrity due to 

incorrect heat treatment. This proposed 

AD would require replacement of the 

LPC case A-frame hollow locating pins. 

We are proposing this AD to correct the 

unsafe condition on these products. 

DATES: We must receive comments on 

this NPRM by October 30, 2017. 

ADDRESSES: You may send comments by 

any of the following methods: 

• Federal eRulemaking Portal: Go to 

http://www.regulations.gov. Follow the 

instructions for submitting comments. 

• Mail: Docket Management Facility, 

U.S. Department of Transportation, 1200 

New Jersey Avenue SE., West Building 

Ground Floor, Room W12–140, 

Washington, DC 20590–0001. 

• Hand Delivery: Deliver to Mail 

address above between 9 a.m. and 5 

p.m., Monday through Friday, except 

Federal holidays. 

• Fax: 202–493–2251. 

For service information identified in 

this proposed AD, contact Rolls-Royce 

plc, Corporate Communications, P.O. 

Box 31, Derby, England, DE24 8BJ; 

phone: 011–44–1332–242424; fax: 011– 

44–1332–249936; email: http://

www.rolls-royce.com/contact/civil_

team.jsp; Internet: https://

customers.rolls-royce.com/public/ 

rollsroycecare. You may view this 

service information at the FAA, Engine 

and Propeller Standards Branch, 1200 

District Avenue, Burlington, MA. For 

information on the availability of this 

material at the FAA, call 781–238–7125. 

Examining the AD Docket 

You may examine the AD docket on 

the Internet at http://

www.regulations.gov by searching for 

and locating Docket No. FAA–2017– 

0650; or in person at the Docket 

Operations office between 9 a.m. and 5 

p.m., Monday through Friday, except 

Federal holidays. The AD docket 

contains this proposed AD, the 

mandatory continuing airworthiness 

information (MCAI), the regulatory 

evaluation, any comments received, and 

other information. The address for the 

Docket Office (phone: 800–647–5527) is 

in the ADDRESSES section. Comments 

will be available in the AD docket 

shortly after receipt. 

FOR FURTHER INFORMATION CONTACT: 

Robert Green, Aerospace Engineer, ECO 

Branch, FAA, 1200 District Avenue, 

Burlington, MA 01803; phone: 781– 

238–7754; fax: 781–238–7199; email: 

robert.green@faa.gov. 

SUPPLEMENTARY INFORMATION: 

Comments Invited 

We invite you to send any written 

relevant data, views, or arguments about 

this proposed AD. Send your comments 

to an address listed under the 

ADDRESSES section. Include ‘‘Docket No. 

FAA–2017–0650; Product Identifier 

2017–NE–19–AD’’ at the beginning of 

your comments. We specifically invite 

comments on the overall regulatory, 

economic, environmental, and energy 

aspects of this proposed AD. We will 

consider all comments received by the 

closing date and may amend this 

proposed AD because of those 

comments. 

We will post all comments we 

receive, without change, to http://

www.regulations.gov, including any 

personal information you provide. We 

will also post a report summarizing each 

substantive verbal contact with FAA 

personnel concerning this proposed AD. 

Discussion 

The European Aviation Safety Agency 

(EASA), which is the Technical Agent 

for the Member States of the European 

Community, has issued EASA AD 2017– 

0096, dated June 1, 2017 (referred to 

hereinafter as ‘‘the MCAI’’), to correct an 

unsafe condition for the specified 

products. The MCAI states: 

All low pressure compressor (LPC) case Aframe hollow locating pins, Part Number 

(P/N) FK11612, manufactured between 01 

January 2012 and 31 May 2016, have 

potentially been subjected to incorrect heat 

treatment. This may have reduced the 

integrity of the pin such that in a Fan Blade 

Off (FBO) event it is unable to withstand the 

applied loads. This condition, if not 

corrected, could lead to loss of location of the 

A-frame following an FBO event, possibly 

resulting in engine separation, loss of thrust 

reverser unit, release of high-energy debris, 

or an uncontrolled fire. To address this 

potential unsafe condition, RR identified the 

affected engines that have these A-frame 

hollow locating pins installed and published 

Alert Non-Modification Service Bulletin 

(NMSB) RB.211–72–AJ463, providing 

instructions for replacement of these pins. 

The NMSB was recently revised to correct an 

error in Section 1.A., where ESN 51477 was 

inadvertently omitted. That ESN was 

correctly listed in Section 1.D.(1)(f) for the 

compliance time. For the reason described 

above, this AD requires a one-time 

replacement of the affected A-frame hollow 

locating pins P/N FK11612. This AD also 

prohibits installation of pins that were 

released to service before 05 July 2016. 

You may obtain further information 

by examining the MCAI in the AD 

docket on the Internet at http://

www.regulations.gov by searching for 

and locating Docket No. FAA–2017– 

0650. 

Related Service Information Under 1 

CFR Part 51 

RR has issued Alert Non Modification 

Service Bulletin (NMSB) RB.211–72– 

AJ463, Revision 2, dated June 28, 2017. 

The Alert SB describes procedures for 

replacement of all non-conforming Aframe locating pins. This service 

information is reasonably available 

because the interested parties have 

access to it through their normal course 

of business or by the means identified 

in the ADDRESSES section. 

FAA’s Determination and Requirements 

of This Proposed AD 

This product has been approved by 

the aviation authority of the United 

Kingdom, and is approved for operation 


jstallworth on DSKBBY8HB2PROD with PROPOSALS