82_FR_25608 82 FR 25503 - Rules of Procedure Governing Cases Before the Office of Hearings and Appeals

82 FR 25503 - Rules of Procedure Governing Cases Before the Office of Hearings and Appeals

SMALL BUSINESS ADMINISTRATION

Federal Register Volume 82, Issue 105 (June 2, 2017)

Page Range25503-25509
FR Document2017-10471

The U.S. Small Business Administration (SBA) is amending the rules of practice of its Office of Hearings and Appeals (OHA) to implement section 869 of the National Defense Authorization Act for Fiscal Year 2016 and section 1833 of the National Defense Authorization Act for Fiscal Year 2017. This legislation authorizes OHA to decide Petitions for Reconsideration of Size Standards (Size Standard Petitions or Petitions). This rule also revises the rules of practice for OHA appeals of agency employee disputes.

Federal Register, Volume 82 Issue 105 (Friday, June 2, 2017) 
[Federal Register Volume 82, Number 105 (Friday, June 2, 2017)]
[Rules and Regulations]
[Pages 25503-25509]
From the Federal Register Online  [www.thefederalregister.org]
[FR Doc No: 2017-10471]



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Rules and Regulations
                                                Federal Register
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having general applicability and legal effect, most of which are keyed 
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under 50 titles pursuant to 44 U.S.C. 1510.

The Code of Federal Regulations is sold by the Superintendent of Documents. 

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Federal Register / Vol. 82, No. 105 / Friday, June 2, 2017 / Rules 
and Regulations

[[Page 25503]]



SMALL BUSINESS ADMINISTRATION

13 CFR Parts 121 and 134

RIN 3245-AG82


Rules of Procedure Governing Cases Before the Office of Hearings 
and Appeals

AGENCY: U.S. Small Business Administration.

ACTION: Final rule.

-----------------------------------------------------------------------

SUMMARY: The U.S. Small Business Administration (SBA) is amending the 
rules of practice of its Office of Hearings and Appeals (OHA) to 
implement section 869 of the National Defense Authorization Act for 
Fiscal Year 2016 and section 1833 of the National Defense Authorization 
Act for Fiscal Year 2017. This legislation authorizes OHA to decide 
Petitions for Reconsideration of Size Standards (Size Standard 
Petitions or Petitions). This rule also revises the rules of practice 
for OHA appeals of agency employee disputes.

DATES: 
    Effective Date: This rule is effective on July 3, 2017.
    Applicability Date: Size Standard Petitions pertaining to size 
standards revised, modified, or established in a final rule published 
during the interval between November 25, 2015, and July 3, 2017 shall 
be considered timely if filed within 30 calendar days of the latter 
date.

FOR FURTHER INFORMATION CONTACT: Linda (Lin) DiGiandomenico, Attorney 
Advisor, at (202) 401-8206 or [email protected].

SUPPLEMENTARY INFORMATION: This rule amends the rules of practice for 
the SBA's Office of Hearings and Appeals (OHA) in order to implement 
section 869(b) of the National Defense Authorization Act for Fiscal 
Year 2016, Public Law 114-92, 129 Stat. 726, November 25, 2015 (NDAA 
2016). This legislation added new paragraph 3(a)(9) to the Small 
Business Act, 15 U.S.C. 632(a)(9), to authorize OHA to hear and decide 
Petitions for Reconsideration of Size Standards (Size Standard 
Petitions or Petitions). A Size Standard Petition may be filed at OHA 
after SBA publishes a final rule in the Federal Register to revise, 
modify, or establish a size standard. This rule creates a new subpart I 
in OHA's regulations (13 CFR part 134) to set out detailed rules of 
practice for Size Standard Petitions, revises OHA's general rules of 
practice in subparts A and B of part 134 as required by the new 
legislation, and amends SBA's small business size regulations (13 CFR 
part 121) to include Size Standard Petitions as part of SBA's process 
for establishing size standards.
    This rule also revises the rules of practice for OHA appeals of 
agency employee disputes in subpart H of part 134, to comport with 
SBA's revisions of its Standard Operating Procedure (SOP) 37 71, The 
Employee Dispute Resolution Process.
    On October 7, 2016, SBA published in the Federal Register (81 FR 
69723), a proposed rule to implement section 869(b) of NDAA 2016 and to 
revise procedures for OHA appeals of agency employee disputes. The 
proposed rule provided a 60-day comment period, with comments due on 
December 6, 2016. During the comment period SBA received three 
comments, each of which concerned the implementation of section 869(b). 
No comments were received concerning employee disputes.
    On December 23, 2016, President Obama signed into law the National 
Defense Authorization Act for Fiscal Year 2017, Public Law 114-328 
(NDAA 2017). Section 1833(b) of NDAA 2017 added new subparagraph 
3(a)(9)(E) to the Small Business Act, 15 U.S.C. 632(a)(9)(E). This 
provision authorizes OHA to accept Size Standard Petitions after SBA 
issues rules or guidance for processing these cases; SBA is issuing 
those procedural rules today, in this final rule. Until this final 
rule, SBA had no specific rules or guidance for processing Size 
Standard Petitions, and thus OHA dismissed without prejudice the Size 
Standard Petitions that were filed. This new statutory provision also 
provides that Size Standard Petitions pertaining to size standards 
revised, modified, or established in a final rule published during the 
interval between November 25, 2015, and the effective date of this 
final rule will be considered timely if filed within 30 calendar days 
of that effective date.

Summary of Comments and SBA's Response

A. Part 121

    SBA proposed adding new paragraphs (e), (f), and (g) to Sec.  
121.102 to include Size Standard Petitions as part of SBA's process for 
establishing size standards. New paragraph (e) requires SBA to include 
instructions for filing a Size Standard Petition in any final rule 
revising, modifying, or establishing a size standard. There were no 
comments on it and SBA is adopting it exactly as proposed.
    New paragraph (f) requires SBA to publish a notice in the Federal 
Register within 14 calendar days after a Size Standard Petition is 
filed. SBA received one comment on proposed new Sec.  121.102(f). The 
commenter requested that SBA also have an online tracking system, 
preferably on the Web site regulations.gov, for Size Standard Petitions 
filed at OHA. The same commenter also suggested that SBA include 
information on Size Standard Petitions in the record for the applicable 
revised, modified, or newly established size standard.
    In response, SBA notes that OHA has no online tracking system as 
yet; however, systems already in place will enable the public to track 
Size Standard Petition cases. First, notices for Federal Register 
publication appear automatically on federalregister.gov, and the public 
may use that site's advanced search feature to locate them. Second, 
once issued, OHA's decisions are public and available at sba.gov/oha/decisions. Regarding the inclusion of information on Size Standard 
Petitions in the record for size standards rulemakings, SBA declines to 
add this requirement, leaving it up to SBA's Office of Size Standards 
to determine what to include in the rulemaking record for a particular 
rule. Thus, SBA is adopting the proposed Sec.  121.102(f) as proposed, 
with one editorial change to the first sentence, where ``announcing a 
size standard'' is replaced with ``announcing the size standard''.
    Proposed new paragraph (g) would require SBA to publish a document 
in the Federal Register where SBA grants a Petition for Reconsideration 
of a Size Standard that had been revised or

[[Page 25504]]

modified. There were no public comments on this provision. SBA is 
changing this provision to clarify that OHA will remand the case to 
SBA's Office of Size Standards for further action.

B. Part 134, Subparts A and B

    SBA proposed to revise four sections contained in subparts A and B 
of part 134. These are Sec. Sec.  134.101 (Definitions) and 134.102 
(Jurisdiction of OHA) in subpart A; and Sec. Sec.  134.201 (Scope of 
the rules in this subpart B) and 134.227 (Finality of decisions) in 
subpart B. SBA received no comments on any of these sections. SBA added 
a definition to clarify that Step One and Step Two refer to the 
Employee Dispute Resolution Process described in SBA Standard Operating 
Procedure, 37 71, as denoted in Sec.  134.801(a). All other revisions 
are exactly as proposed.

C. Part 134, Subpart H

    SBA proposed to revise Sec. Sec.  134.801, 134.803, 134.804, 
134.805, 134.807, 134.808, and 134.809 of subpart H. All of these 
sections concern OHA appeals of SBA employee disputes. SBA received no 
comments regarding the proposed revision of any of these sections, and 
is adopting these revisions exactly as proposed, with three minor 
changes. In Sec.  134.805(d), the words ``at his or her home address'' 
are being removed as unnecessary since service is by email. In Sec.  
134.807(a), the words ``it wishes'' are being replaced with ``SBA 
wishes'' for clarity. In Sec.  134.809(a), an official's title is being 
corrected.

D. Part 134, Subpart I

    SBA proposed to add subpart I setting forth the rules of practice 
before OHA for Petitions for Reconsideration of Size Standards. SBA 
received no comments regarding the proposed new Sec. Sec.  134.901 
(Scope of the rules in this subpart I), 134.905 (Notice and order), 
134.907 (Filing and service), 134.908 (The administrative record), 
134.909 (Standard of review), 134.911 (Response to the Size Standard 
Petition), 134.912 (Discovery and oral hearings), 134.913 (New 
evidence), 134.914 (The decision), 134.915 (Remand), 134.917 (Equal 
Access to Justice Act), and 134.918 (Judicial review). SBA is adopting 
these new sections as proposed, with one minor change to the first 
sentence in Sec.  134.914, where the second ``the'' is being deleted.
    Proposed Sec.  134.902 provides that any person ``adversely 
affected'' by a new, revised, or modified size standard has standing to 
file a Petition within 30 days from the date of publication of the 
final rule promulgating that size standard. Paragraph (b) provides that 
a business entity is not ``adversely affected'' unless it conducts 
business in the industry associated with the size standard being 
challenged, and it either qualified as a small business concern before 
the size standard was revised or modified, or it would qualify as a 
small business concern under the size standard as revised or modified.
    SBA received two comments. One comment supported the proposed rule 
because it precludes businesses that are large under both the existing 
and the modified or revised size standard from filing Size Standard 
Petitions. The second comment opposed the proposed rule for that same 
reason, asserting that the statute does not limit the availability of 
an OHA review only to small or would-be small businesses, but was meant 
to include all adversely-affected businesses, including large 
businesses. The second commenter believes that it is adversely affected 
by a change in a size standard that favors its competitors, and asserts 
that concerns also should be able to request review on SBA's decision 
in a rulemaking not to modify or revise a size standard, but to keep it 
the same.
    SBA disagrees with the second comment. The statute provides that 
SBA's OHA, in deciding Size Standard Petitions, ``shall use the same 
process it uses to decide challenges to the size of a small business 
concern.'' Small Business Act section 3(a)(9)(C), 15 U.S.C. 
632(a)(9)(C). A challenge to a concern's small business size status, 
also called a size protest, occurs when a competitive procurement or 
order has been restricted to or reserved for small businesses or a 
particular group of small businesses. The size protest, filed by either 
a disappointed offeror or the Government, is initially decided by an 
SBA Area Office in a size determination which may be appealed to OHA. 
At both the protest (Area Office) and the appeal (OHA) stages, the 
process of deciding challenges to a concern's small business size 
status requires a non-Government person bringing the challenge to have 
standing as a small business offeror remaining in the competition and 
still eligible for award. See 13 CFR 121.1001(a)(1) (``Any offeror whom 
the contracting officer has not eliminated for reasons unrelated to 
size''), 13 CFR 134.302(a) (``Appeals from size determinations . . . 
may be filed with OHA by the following, as applicable: Any person 
adversely affected by a size determination . . . .''); Size Appeal of 
Straughan Environmental, Inc., SBA No. SIZ-5767, at 3 (2016), available 
at www.sba.gov/oha. Because the statute requires OHA to follow the 
process used in size challenges, and under the process used in size 
challenges only a small business has standing to file either a size 
protest or a size appeal, SBA believes it was the intent of Congress to 
allow only a small business to file a Size Standard Petition. 
Therefore, SBA is adopting new Sec.  134.902 exactly as proposed.
    Section 134.903(a) reiterates the statutory 30-day deadline for 
filing a Petition, requires dismissal of an untimely Petition, and 
clarifies that the days counted are calendar days. Section 134.903(b) 
requires dismissal as premature a Petition filed in response to a 
proposed rule. The retention of an existing size standard is not 
considered to be the revision, modification, or establishment of a size 
standard and is not subject to these procedures, and so Sec.  
134.903(c) requires OHA to dismiss a petition challenging the retention 
of an existing size standard.
    There were two comments. One comment expressed support for the 30-
day deadline and summary dismissal provisions. The second comment 
requested a process whereby one may comment on and request a review of 
a size standard change at any time, not just within 30 days of the 
change, so long as the change has produced a negative financial impact 
on businesses. SBA notes, with respect to the second comment, that the 
30-day deadline for filing a Petition is statutory and thus SBA may not 
change it. As for opportunities to comment on size standards, there is 
a public comment period each time SBA publishes a proposed rule, and 
during this public comment period any person may submit a comment for 
SBA to consider and address in formulating the final rule. During the 
public comment period, commenters need not demonstrate standing, and 
may comment on any size standard being proposed, regardless of whether 
the proposed rule would modify or revise that size standard. Outside of 
public comment periods, persons may address their concerns about any 
size standard at any time to SBA's Size Standards Office pursuant to 
Sec.  121.102(d). SBA is adopting new Sec.  134.903 exactly as 
proposed.
    Section 134.904 sets out the requirements for a Size Standard 
Petition. Among these, the Petition must include any public comments 
the Petitioner had submitted during the rulemaking on the challenged 
size standard, and the Petitioner also must demonstrate standing for 
each challenged size standard. One commenter suggested an additional 
requirement, that the Petitioner must actually have submitted a public

[[Page 25505]]

comment during the rulemaking. The same commenter also noted its 
support for the requirement to demonstrate standing for each challenged 
size standard. SBA disagrees with the suggestion to require the 
Petitioner to have submitted a public comment during the rulemaking, 
because this additional requirement would be overly restrictive. Thus, 
SBA is adopting new Sec.  134.904 as proposed, with the deletion of the 
unnecessary mail code in Sec.  134.904(d)(1).
    Section 134.906 permits interested persons with a direct stake in 
the outcome of the case to intervene and obtain a copy of the Petition, 
under a protective order if necessary. One commenter requested SBA to 
change this provision to require potential intervenors to meet the same 
standing requirement as petitioners, in order to prevent large 
businesses from having a ``back door'' into the size standard review 
process. SBA disagrees with this comment. The proposed rule requires 
only ``a direct stake in the outcome'' and the OHA Judge will make that 
determination on a case-by-case basis. SBA is adopting new Sec.  
134.906 exactly as proposed.
    Section 134.910 requires OHA to dismiss a Petition under four 
scenarios. One commenter stated support for dismissal under those 
scenarios. SBA is adopting new Sec.  134.910 exactly as proposed.
    Section 134.916 sets out the effects of OHA's decision in a Size 
Standard Petition case. Paragraph (a) provides that if the challenged 
size standard is a modified or revised size standard, and OHA grants 
the Size Standard Petition, SBA will rescind the challenged size 
standard and restore the prior size standard, which will remain in 
effect until SBA issues a new size standard. If the challenged size 
standard is newly established, and OHA grants the Size Standard 
Petition, the challenged size standard remains in effect. Paragraph (b) 
provides that if OHA denies a Size Standard Petition, the challenged 
size standard remains in effect.
    One commenter requested clarification of the effect that OHA's 
grant of a Size Standard Petition would have on procurement actions. 
The commenter posed the hypothetical of a concern that is a small 
business under the revised size standard but is not a small business 
under the prior size standard. The concern self-certifies as small 
under the revised size standard with its initial offer including price. 
Later, OHA grants a Size Standard Petition and SBA rescinds the revised 
size standard, restoring the prior size standard, under which that 
concern is not a small business. Would contract award to that concern 
as a small business be valid even though the prior size standard has 
been restored?
    SBA responds to this comment by stating that the contract award to 
that concern as a small business is valid despite SBA's rescission of 
the revised, higher size standard. This result is consistent with the 
general rule, stated in Sec.  121.404(a), that a concern's small 
business eligibility is determined on the self-certification date and 
is based on the size standard in effect at that time. Thus, the 
procuring agency may count the award toward its small business goals. 
On the other hand, if the procuring agency amends the solicitation and 
requires new self-certifications, those self-certifications will be 
based on the size standard in effect on the day they are made. SBA is 
revising the text of Sec.  134.916(a) to clarify the intended effect of 
an OHA decision granting a Size Standard Petition in light of this 
public comment, and also to provide that, on remand, SBA may take any 
appropriate action to rescind the challenged revised or modified size 
standard.

Compliance With Executive Orders 12866, 12988, 13175 and 13132, 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 rule establishes the procedures for Petitions for 
Reconsideration of Size Standards at SBA's Office of Hearings and 
Appeals (OHA) and revises procedural rules at OHA for agency employee 
disputes. 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. 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 13175

    For the purposes of Executive Order 13175, Consultation and 
Coordination with Indian Tribal Governments, SBA has determined that 
this final rule will not have substantial direct effects on one or more 
Indian Tribes, on the relationship between the Federal Government and 
Indian Tribes, or on the distribution of power and responsibilities 
between the Federal Government and Indian Tribes. Therefore, SBA 
determines that this final rule does not require consultations with 
tribal officials or warrant the publication of a Tribal Summary Impact 
Statement.

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.

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 (RFA), 5 U.S.C. 601-612, as 
amended, requires Federal agencies to consider the potential impact of 
regulations on small entities during rulemaking. 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 analysis, if the rulemaking is 
not expected to have a significant economic impact on a substantial 
number of small entities.
    This final rule revises the regulations governing cases before 
SBA's Office of Hearings and Appeals (OHA), SBA's administrative 
tribunal. These

[[Page 25506]]

regulations are procedural by nature. Specifically, the final rule 
establishes rules of practice for Petitions for Reconsideration of Size 
Standards (Size Standard Petitions), a new type of administrative 
litigation mandated by 869(b) of the National Defense Authorization Act 
for Fiscal Year 2016. This legislation provides a new statutory right 
to challenge a size standard revised, modified, or established by the 
SBA through a final rule. Further, this legislation requires OHA to 
hear any Size Standard Petitions that are filed. This final rule merely 
provides the rules of practice for the orderly hearing and disposition 
of Size Standard Petitions at OHA. While SBA did not anticipate that 
this final rule would have a significant economic impact on any small 
business, we did request comments from any small business setting out 
how and to what degree this final rule would affect it economically. No 
comments were received regarding RFA issues.
    The Small Business Size Regulations provide that persons requesting 
to change existing size standards or to establish new size standards 
may address these requests to SBA's Office of Size Standards. 13 CFR 
121.102(d). Over the past five years, fewer than ten letters concerning 
size standards have been submitted per year, supporting SBA's belief 
that this final rule will not affect a substantial number of small 
entities. Further, a business adversely affected by a final rule 
revising a size standard has always had (and would continue to have) 
the option of judicial review in Federal court, yet the SBA knows of no 
such lawsuit ever having been filed.
    In addition to establishing rules of practice for Size Standard 
Petitions, this rule revises OHA's rules of practice for SBA Employee 
Disputes. This rulemaking is procedural, would impose no significant 
additional requirements on small entities, and would have minimal, if 
any, effect on small entities.
    Therefore, the Administrator of SBA certifies under 5 U.S.C. 605(b) 
that this final rule does not have a significant economic impact on a 
substantial number of small entities.

List of Subjects

13 CFR Part 121

    Administrative practice and procedure, Government procurement, 
Government property, Grant programs--business, Individuals with 
disabilities, Loan programs--business, Small businesses.

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, the U.S. Small Business 
Administration amends 13 CFR parts 121 and 134 as follows:

PART 121--SMALL BUSINESS SIZE REGULATIONS

0
1. The authority citation for part 121 continues to read as follows:

    Authority: 15 U.S.C. 632, 634(b)(6), 662, and 694a(9).


0
2. Amend Sec.  121.102 by adding paragraphs (e), (f), and (g) to read 
as follows:


Sec.  121.102  How does SBA establish size standards?

* * * * *
    (e) When SBA publishes a final rule in the Federal Register 
revising, modifying, or establishing a size standard, SBA will include 
in the final rule, an instruction that interested persons may file a 
petition for reconsideration of a revised, modified, or established 
size standard at SBA's Office of Hearings and Appeals (OHA) within 30 
calendar days after publication of the final rule in accordance with 15 
U.S.C. 632(a)(9) and part 134, subpart I of this chapter. The 
instruction will provide the mailing address, facsimile number, and 
email address of OHA.
    (f) Within 14 calendar days after a petition for reconsideration of 
a size standard is filed, unless it appears OHA will dismiss the 
petition for reconsideration, SBA will publish a document in the 
Federal Register announcing the size standard or standards that have 
been challenged, the Federal Register citation of the final rule, the 
assigned OHA docket number, and the date of the close of record. The 
document will further state that interested parties may contact OHA to 
intervene in the dispute pursuant to Sec.  134.906 of this chapter.
    (g) Where OHA grants a petition for reconsideration of a size 
standard that had been revised or modified, OHA will remand the case to 
SBA's Office of Size Standards for further action in accordance with 
Sec.  134.916(a) of this chapter.

PART 134--RULES OF PROCEDURE GOVERNING CASES BEFORE THE OFFICE OF 
HEARINGS AND APPEALS

0
3. 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); E.O. 12549, 51 FR 6370, 3 CFR, 
1986 Comp., p. 189.


0
4. Amend Sec.  134.101 by revising the definitions of ``AA/OHA'' and 
``Judge'' and adding definitions for ``Administrative Judge'', 
``Petitioner'', ``Size Standard Petition'', and ``Step One and Step 
Two'' in alphabetical order to read as follows:


Sec.  134.101  Definitions.

* * * * *
    AA/OHA means the Assistant Administrator for OHA, who is also the 
Chief Hearing Officer.
* * * * *
    Administrative Judge means a Hearing Officer, as described at 15 
U.S.C. 634(i), appointed by OHA to adjudicate cases.
* * * * *
    Judge means the Administrative Judge or Administrative Law Judge 
who decides an appeal or petition brought before OHA, or the AA/OHA 
when he or she acts as an Administrative Judge.
* * * * *
    Petitioner means the person who initially files a petition before 
OHA.
* * * * *
    Size Standard Petition means a petition for reconsideration of a 
revised, modified, or established size standard filed with OHA pursuant 
to 15 U.S.C. 632(a)(9) and subpart I of this part.
    Step One and Step Two refer to the steps of the Employee Dispute 
Resolution Process, see Sec.  134.801(a) for more information.

0
5. Amend Sec.  134.102 by revising paragraphs (r) and (t) to read as 
follows:


Sec.  134.102  Jurisdiction of OHA.

* * * * *
    (r) Appeals from SBA Employee Dispute Resolution Process cases 
(Employee Disputes) under Standard Operating Procedure (SOP) 37 71 
(available at http://www.sba.gov/tools/resourcelibrary/sops/index.html 
or through OHA's Web site http://www.sba.gov/oha) and subpart H of this 
part;
* * * * *
    (t) Petitions for reconsideration of revised, modified, or 
established size standards pursuant to 15 U.S.C. 632(a)(9).

0
6. Amend Sec.  134.201 by:
0
a. Removing the word ``and'' in paragraph (b)(6);
0
b. Redesignating paragraph (b)(7) as paragraph (b)(8); and
0
c. Adding a new paragraph (b)(7).
    The addition reads as follows:

[[Page 25507]]

Sec.  134.201  Scope of the rules in this subpart B.

* * * * *
    (b) * * *
    (7) For Size Standard Petitions, in subpart I of this part 
(Sec. Sec.  134.901 through 134.918); and
* * * * *

0
7. Amend Sec.  134.227 by:
0
a. Removing the word ``and'' in paragraph (b)(3);
0
b. Redesignating paragraph (b)(4) as paragraph (b)(5); and
0
c. Adding a new paragraph (b)(4).
    The addition reads as follows:


Sec.  134.227  Finality of decisions.

* * * * *
    (b) * * *
    (4) Size Standard Petitions; and
* * * * *


Sec.  134.801  [Amended]

0
8. Amend Sec.  134.801 by:
0
a. Adding the word ``and'' at the end of paragraph (b)(9);
0
b. Removing ``; and'' at the end of paragraph (b)(10) and adding a 
period in its place; and
0
c. Removing paragraph (b)(11).

0
9. Amend Sec.  134.803 by revising the section heading and paragraphs 
(a) and (b) to read as follows:


Sec.  134.803  Commencement of appeals from SBA Employee Dispute 
Resolution Process cases (Employee Disputes).

    (a) An appeal from a Step Two decision must be commenced by filing 
an appeal petition within 15 calendar days from the date the Employee 
receives the Step Two decision.
    (b) If the Step Two Official does not issue a decision within 15 
calendar days of receiving the SBA Dispute Form from the Employee, the 
Employee must file his/her appeal petition at OHA no later than 15 
calendar days from the date the Step Two decision was due.
* * * * *

0
10. Amend Sec.  134.804 by:
0
a. Revising paragraphs (a)(1), (2), and (3);
0
b. Adding the word ``and'' after the semicolon in paragraph (a)(5);
0
c. Removing paragraph (a)(6);
0
d. Redesignating paragraph (a)(7) as paragraph (a)(6);
0
e. Revising paragraph (b)(1);
0
f. Removing paragraph (c); and
0
g. Redesignating paragraphs (d) and (e) as paragraphs (c) and (d).
    The revisions read as follows:


Sec.  134.804  The appeal petition.

    (a) * * *
    (1) The completed SBA Dispute Form;
    (2) A copy of the Step One and Step Two decisions, if any;
    (3) Statement of why the Step Two decision (or Step One decision, 
if no Step Two decision was received), is alleged to be in error;
* * * * *
    (b) * * *
    (1) The Step Two Official;
* * * * *


Sec.  134.805   [Amended]

0
11. Amend Sec.  134.805 in paragraph (d) by removing the words ``U.S. 
Mail'' and adding in their place the word ``email'' and removing the 
words ``at his or her home address''.


Sec.  134.807  [Amended]

0
12. Amend Sec.  134.807 as follows:
0
a. By removing from paragraph (a), the words ``a copy of the Dispute 
File'' and adding in their place the words ``any documentation, not 
already filed by the Employee, that SBA wishes OHA to consider'';
0
b. By removing from paragraph (b), the words ``15 days'' and ``45 
days'' and adding in both their places the words ``15 calendar days''; 
and
0
c. By removing from paragraph (c), the words ``and the Dispute File are 
normally the last submissions'' and by adding in their place the words 
``is normally the last submission''.


Sec.  134.808  [Amended]

0
13. Amend Sec.  134.808(a) by removing the word ``AMO's'' and adding in 
its place the words ``Step One or Step Two''.

0
14. Revise Sec.  134.809 to read as follows:


Sec.  134.809  Review of initial decision.

    (a) If the Chief Human Capital Officer, General Counsel for SBA, or 
Counsel to the Inspector General (IG) believes OHA's decision is 
contrary to law, rule, regulation, or SBA policy, that official may 
file a Petition for Review (PFR) of the decision with the Deputy 
Administrator (or IG for disputes by OIG employees) for a final SBA 
Decision. Only the Chief Human Capital Officer, General Counsel, or 
Counsel to the IG may file a PFR of an OHA decision; the Employee may 
not.
    (b) To file a PFR, the official must request a complete copy of the 
dispute file from the Assistant Administrator for OHA (AA/OHA) within 
five calendar days of receiving the decision. The AA/OHA will provide a 
copy of the dispute file to the official, the Employee, and the 
Employee's representative within five calendar days of the official's 
request. The official's PFR is due no later than 15 calendar days from 
the date the official receives the dispute file. The PFR must specify 
the objections to OHA's decision.

0
15. Add subpart I to read as follows:
Subpart I--Rules of Practice for Petitions for Reconsideration of Size 
Standards
Sec.
134.901 Scope of the rules in this subpart.
134.902 Standing.
134.903 Commencement of cases.
134.904 Requirements for the Size Standard Petition.
134.905 Notice and order.
134.906 Intervention.
134.907 Filing and service.
134.908 The administrative record.
134.909 Standard of review.
134.910 Dismissal.
134.911 Response to the Size Standard Petition.
134.912 Discovery and oral hearings.
134.913 New evidence.
134.914 The decision.
134.915 Remand.
134.916 Effects of OHA's decision.
134.917 Equal Access to Justice Act.
134.918 Judicial review.

Subpart I--Rules of Practice for Petitions for Reconsideration of 
Size Standards


Sec.  134.901  Scope of the rules in this subpart.

    (a) The rules of practice in this subpart apply to Size Standard 
Petitions.
    (b) Except where inconsistent with this subpart, the provisions of 
subparts A and B of this part apply to Size Standard Petitions listed 
in paragraph (a) of this section.


Sec.  134.902   Standing.

    (a) A Size Standard Petition may be filed with OHA by any person 
that is adversely affected by the Administrator's decision to revise, 
modify, or establish a size standard.
    (b) A business entity is not adversely affected unless it conducts 
business in the industry associated with the size standard that is 
being challenged and:
    (1) The business entity qualified as a small business concern 
before the size standard was revised or modified; or
    (2) The business entity qualifies as a small business under the 
size standard as revised or modified.


Sec.  134.903   Commencement of cases.

    (a) A Size Standard Petition must be filed at OHA not later than 30 
calendar days after the publication in the Federal Register of the 
final rule that revises, modifies, or establishes the challenged size 
standard. An untimely Size Standard Petition will be dismissed.
    (b) A Size Standard Petition filed in response to a notice of 
proposed rulemaking is premature and will be dismissed.

[[Page 25508]]

    (c) A Size Standard Petition challenging a size standard that has 
not been revised, modified, or established through publication in the 
Federal Register will be dismissed.


Sec.  134.904  Requirements for the Size Standard Petition.

    (a) Form. There is no required form for a Size Standard Petition. 
However, it must include the following information:
    (1) A copy of the final rule published in the Federal Register to 
revise, modify, or establish a size standard, or an electronic link to 
the final rule;
    (2) A full and specific statement as to which size standard(s) in 
the final rule the Petitioner is challenging and why the process that 
was used to revise, modify, or establish each challenged size standard 
is alleged to be arbitrary, capricious, an abuse of discretion, or 
otherwise not in accordance with the law, together with argument 
supporting such allegation;
    (3) A copy of any comments the Petitioner submitted in response to 
the proposed notice of rulemaking that pertained to the size 
standard(s) in question, or a statement that no such comments were 
submitted; and
    (4) The name, mailing address, telephone number, facsimile number, 
email address, and signature of the Petitioner or its attorney.
    (b) Multiple size standards. A Petitioner may challenge multiple 
size standards that were revised, modified, or established in the same 
final rule in a single Size Standard Petition, provided that the 
Petitioner demonstrates standing for each of the challenged size 
standards.
    (c) Format. The formatting provisions of Sec.  134.203(d) apply to 
Size Standard Petitions.
    (d) Service. In addition to filing the Size Standard Petition at 
OHA, the Petitioner must serve a copy of the Size Standard Petition 
upon each of the following:
    (1) SBA's Office of Size Standards, U.S. Small Business 
Administration, 409 3rd Street SW., Washington, DC 20416; facsimile 
number (202) 205-6390; or [email protected]; and
    (2) SBA's Office of General Counsel, Associate General Counsel for 
Procurement Law, U.S. Small Business Administration, 409 3rd Street 
SW., Washington, DC 20416; facsimile number (202) 205-6873; or 
[email protected].
    (e) Certificate of service. The Petitioner must attach to the Size 
Standard Petition a signed certificate of service meeting the 
requirements of Sec.  134.204(d).


Sec.  134.905  Notice and order.

    Upon receipt of a Size Standard Petition, OHA will assign the 
matter to a Judge in accordance with Sec.  134.218. Unless it appears 
that the Size Standard Petition will be dismissed under Sec.  134.910, 
the presiding Judge will issue a notice and order initiating the 
publication required by Sec.  121.102(f) of this chapter; specifying a 
date for the Office of Size Standards to transmit to OHA a copy of the 
administrative record supporting the revision, modification, or 
establishment of the challenged size standard(s); and establishing a 
date for the close of record. Typically, the administrative record will 
be due seven calendar days after issuance of the notice and order, and 
the record will close 45 calendar days from the date of OHA's receipt 
of the Size Standard Petition.


Sec.  134.906  Intervention.

    In accordance with Sec.  134.210(b), interested persons with a 
direct stake in the outcome of the case may contact OHA to intervene in 
the proceeding and obtain a copy of the Size Standard Petition. In the 
event that the Size Standard Petition contains confidential information 
and the intervener is not a governmental entity, the Judge may require 
that the intervener's attorney be admitted to a protective order before 
obtaining a complete copy of the Size Standard Petition.


Sec.  134.907  Filing and service.

    The provisions of Sec.  134.204 apply to the filing and service of 
all pleadings and other submissions permitted under this subpart unless 
otherwise indicated in this subpart.


Sec.  134.908  The administrative record.

    The Office of Size Standards will transmit to OHA a copy of the 
documentation and analysis supporting the revision, modification, or 
establishment of the challenged size standard by the date specified in 
the notice and order. The Chief, Office of Size Standards, will certify 
and authenticate that the administrative record, to the best of his or 
her knowledge, is complete and correct. The Petitioner and any 
interveners may, upon request, review the administrative record 
submitted to OHA. The administrative record will include the 
documentation and analysis supporting the revision, modification, or 
establishment of the challenged size standard.


Sec.  134.909  Standard of review.

    The standard of review for deciding a Size Standard Petition is 
whether the process employed by the Administrator to revise, modify, or 
establish the size standard was arbitrary, capricious, an abuse of 
discretion, or otherwise not in accordance with the law. OHA will not 
adjudicate arguments that a different size standard should have been 
selected. The Petitioner bears the burden of proof.


Sec.  134.910  Dismissal.

    The Judge must dismiss the Size Standard Petition if:
    (a) The Size Standard Petition does not, on its face, allege 
specific facts that if proven to be true, warrant remand of the size 
standard;
    (b) The Petitioner is not adversely affected by the final rule 
revising, modifying, or establishing a size standard;
    (c) The Size Standard Petition is untimely or premature pursuant to 
Sec.  134.903 or is not otherwise filed in accordance with the 
requirements in subparts A and B of this part; or
    (d) The matter has been decided or is the subject of adjudication 
before a court of competent jurisdiction over such matters.


Sec.  134.911  Response to the Size Standard Petition.

    Although not required, any intervener may file and serve a response 
supporting or opposing the Size Standard Petition at any time prior to 
the close of record. SBA may intervene as of right at any time in any 
case until 15 days after the close of record, or the issuance of a 
decision, whichever comes first. The response must present argument.


Sec.  134.912  Discovery and oral hearings.

    Discovery will not be permitted. Oral hearings will not be held 
unless the Judge determines that the dispute cannot be resolved except 
by the taking of live testimony and the confrontation of witnesses.


Sec.  134.913  New evidence.

    Disputes under this subpart ordinarily will be decided based on the 
pleadings and the administrative record. The Judge may admit additional 
evidence upon a motion establishing good cause.


Sec.  134.914  The decision.

    The Judge will issue his or her decision within 45 calendar days 
after close of record, as practicable. The Judge's decision is final 
and will not be reconsidered.


Sec.  134.915  Remand.

    If OHA grants a Size Standard Petition, OHA will remand the matter 
to the Office of Size Standards for further analysis. Once remanded, 
OHA no

[[Page 25509]]

longer has jurisdiction over the matter unless a new Size Standard 
Petition is filed as a result of a new final rule published in the 
Federal Register.


Sec.  134.916  Effects of OHA's decision.

    (a) If OHA grants a Size Standard Petition of a modified or revised 
size standard, SBA will take appropriate action to rescind that size 
standard and to restore the one that was in effect before the one 
challenged in the Size Standard Petition. The restored size standard 
will remain in effect until SBA issues a new size standard. The OHA 
decision does not affect the validity of a concern's size 
representation made under the challenged size standard prior to the 
effective date of the SBA action rescinding that challenged size 
standard. Such a concern remains eligible for award as a small 
business, and the procuring agency may count the award towards its 
small business goals. If the procuring agency amends the solicitation 
and requires new self-certifications, those self-certifications will be 
based on the size standard in effect on the day those self-
certifications are made. If the size standard in question was newly 
established, the challenged size standard remains in effect while SBA 
conducts its further analysis on remand.
    (b) If OHA denies a Size Standard Petition, the size standard 
remains as published in the Code of Federal Regulations.


Sec.  134.917  Equal Access to Justice Act.

    A prevailing Petitioner is not entitled to recover attorney's fees. 
Size Standard Petitions are not proceedings that are required to be 
conducted by an Administrative Law Judge under Sec.  134.603.


Sec.  134.918   Judicial review.

    The publication of a final rule in the Federal Register is 
considered the final agency action for purposes of seeking judicial 
review.

    Dated: May 11, 2017.
Linda E. McMahon,
Administrator.
[FR Doc. 2017-10471 Filed 6-1-17; 8:45 am]
BILLING CODE 8025-01-P

25503 Rules and Regulations Federal Register Vol. 82, No. 105 Friday, June 2, 2017 This section of the FEDERAL REGISTER to the Small Business Act, 15 U.S.C. date of this final rule will be considered contains regulatory documents having general 632(a)(9), to authorize OHA to hear and timely if filed within 30 calendar days applicability and legal effect, most of which decide Petitions for Reconsideration of of that effective date. are keyed to and codified in the Code of Size Standards (Size Standard Petitions Federal Regulations, which is published under Summary of Comments and SBA’s or Petitions). A Size Standard Petition Response 50 titles pursuant to 44 U.S.C. 1510. may be filed at OHA after SBA The Code of Federal Regulations is sold by publishes a final rule in the Federal A. Part 121 the Superintendent of Documents. Register to revise, modify, or establish SBA proposed adding new paragraphs a size standard. This rule creates a new (e), (f), and (g) to § 121.102 to include subpart I in OHA’s regulations (13 CFR Size Standard Petitions as part of SBA’s SMALL BUSINESS ADMINISTRATION part 134) to set out detailed rules of process for establishing size standards. practice for Size Standard Petitions, New paragraph (e) requires SBA to 13 CFR Parts 121 and 134 revises OHA’s general rules of practice include instructions for filing a Size RIN 3245–AG82 in subparts A and B of part 134 as Standard Petition in any final rule required by the new legislation, and revising, modifying, or establishing a Rules of Procedure Governing Cases amends SBA’s small business size size standard. There were no comments Before the Office of Hearings and regulations (13 CFR part 121) to include on it and SBA is adopting it exactly as Appeals Size Standard Petitions as part of SBA’s proposed. AGENCY: U.S. Small Business process for establishing size standards. New paragraph (f) requires SBA to Administration. This rule also revises the rules of publish a notice in the Federal Register practice for OHA appeals of agency within 14 calendar days after a Size ACTION: Final rule. employee disputes in subpart H of part Standard Petition is filed. SBA received SUMMARY: The U.S. Small Business 134, to comport with SBA’s revisions of one comment on proposed new Administration (SBA) is amending the its Standard Operating Procedure (SOP) § 121.102(f). The commenter requested rules of practice of its Office of Hearings 37 71, The Employee Dispute that SBA also have an online tracking and Appeals (OHA) to implement Resolution Process. system, preferably on the Web site section 869 of the National Defense On October 7, 2016, SBA published in regulations.gov, for Size Standard Authorization Act for Fiscal Year 2016 the Federal Register (81 FR 69723), a Petitions filed at OHA. The same and section 1833 of the National proposed rule to implement section commenter also suggested that SBA Defense Authorization Act for Fiscal 869(b) of NDAA 2016 and to revise include information on Size Standard Year 2017. This legislation authorizes procedures for OHA appeals of agency Petitions in the record for the applicable OHA to decide Petitions for employee disputes. The proposed rule revised, modified, or newly established Reconsideration of Size Standards (Size provided a 60-day comment period, size standard. Standard Petitions or Petitions). This with comments due on December 6, In response, SBA notes that OHA has rule also revises the rules of practice for 2016. During the comment period SBA no online tracking system as yet; OHA appeals of agency employee received three comments, each of which however, systems already in place will disputes. concerned the implementation of enable the public to track Size Standard section 869(b). No comments were Petition cases. First, notices for Federal DATES: Effective Date: This rule is effective received concerning employee disputes. Register publication appear on July 3, 2017. On December 23, 2016, President automatically on federalregister.gov, Applicability Date: Size Standard Obama signed into law the National and the public may use that site’s Petitions pertaining to size standards Defense Authorization Act for Fiscal advanced search feature to locate them. revised, modified, or established in a Year 2017, Public Law 114–328 (NDAA Second, once issued, OHA’s decisions final rule published during the interval 2017). Section 1833(b) of NDAA 2017 are public and available at sba.gov/oha/ between November 25, 2015, and July 3, added new subparagraph 3(a)(9)(E) to decisions. Regarding the inclusion of 2017 shall be considered timely if filed the Small Business Act, 15 U.S.C. information on Size Standard Petitions within 30 calendar days of the latter 632(a)(9)(E). This provision authorizes in the record for size standards date. OHA to accept Size Standard Petitions rulemakings, SBA declines to add this after SBA issues rules or guidance for requirement, leaving it up to SBA’s FOR FURTHER INFORMATION CONTACT: processing these cases; SBA is issuing Office of Size Standards to determine Linda (Lin) DiGiandomenico, Attorney those procedural rules today, in this what to include in the rulemaking Advisor, at (202) 401–8206 or OHA@ final rule. Until this final rule, SBA had record for a particular rule. Thus, SBA sba.gov. no specific rules or guidance for is adopting the proposed § 121.102(f) as SUPPLEMENTARY INFORMATION: This rule processing Size Standard Petitions, and proposed, with one editorial change to amends the rules of practice for the thus OHA dismissed without prejudice the first sentence, where ‘‘announcing a SBA’s Office of Hearings and Appeals the Size Standard Petitions that were nlaroche on DSK30NT082PROD with RULES size standard’’ is replaced with (OHA) in order to implement section filed. This new statutory provision also ‘‘announcing the size standard’’. 869(b) of the National Defense provides that Size Standard Petitions Proposed new paragraph (g) would Authorization Act for Fiscal Year 2016, pertaining to size standards revised, require SBA to publish a document in Public Law 114–92, 129 Stat. 726, modified, or established in a final rule the Federal Register where SBA grants November 25, 2015 (NDAA 2016). This published during the interval between a Petition for Reconsideration of a Size legislation added new paragraph 3(a)(9) November 25, 2015, and the effective Standard that had been revised or VerDate Sep<11>2014 13:07 Jun 01, 2017 Jkt 241001 PO 00000 Frm 00001 Fmt 4700 Sfmt 4700 E:\FR\FM\02JNR1.SGM 02JNR1

25504 Federal Register / Vol. 82, No. 105 / Friday, June 2, 2017 / Rules and Regulations modified. There were no public Paragraph (b) provides that a business in size challenges, and under the comments on this provision. SBA is entity is not ‘‘adversely affected’’ unless process used in size challenges only a changing this provision to clarify that it conducts business in the industry small business has standing to file either OHA will remand the case to SBA’s associated with the size standard being a size protest or a size appeal, SBA Office of Size Standards for further challenged, and it either qualified as a believes it was the intent of Congress to action. small business concern before the size allow only a small business to file a Size standard was revised or modified, or it Standard Petition. Therefore, SBA is B. Part 134, Subparts A and B would qualify as a small business adopting new § 134.902 exactly as SBA proposed to revise four sections concern under the size standard as proposed. contained in subparts A and B of part revised or modified. Section 134.903(a) reiterates the 134. These are §§ 134.101 (Definitions) SBA received two comments. One statutory 30-day deadline for filing a and 134.102 (Jurisdiction of OHA) in comment supported the proposed rule Petition, requires dismissal of an subpart A; and §§ 134.201 (Scope of the because it precludes businesses that are untimely Petition, and clarifies that the rules in this subpart B) and 134.227 large under both the existing and the days counted are calendar days. Section (Finality of decisions) in subpart B. SBA modified or revised size standard from 134.903(b) requires dismissal as received no comments on any of these filing Size Standard Petitions. The premature a Petition filed in response to sections. SBA added a definition to second comment opposed the proposed a proposed rule. The retention of an clarify that Step One and Step Two refer rule for that same reason, asserting that existing size standard is not considered to the Employee Dispute Resolution the statute does not limit the availability to be the revision, modification, or Process described in SBA Standard of an OHA review only to small or establishment of a size standard and is Operating Procedure, 37 71, as denoted would-be small businesses, but was not subject to these procedures, and so in § 134.801(a). All other revisions are meant to include all adversely-affected § 134.903(c) requires OHA to dismiss a exactly as proposed. businesses, including large businesses. petition challenging the retention of an The second commenter believes that it existing size standard. C. Part 134, Subpart H is adversely affected by a change in a There were two comments. One SBA proposed to revise §§ 134.801, size standard that favors its competitors, comment expressed support for the 30- 134.803, 134.804, 134.805, 134.807, and asserts that concerns also should be day deadline and summary dismissal 134.808, and 134.809 of subpart H. All able to request review on SBA’s provisions. The second comment of these sections concern OHA appeals decision in a rulemaking not to modify requested a process whereby one may of SBA employee disputes. SBA or revise a size standard, but to keep it comment on and request a review of a received no comments regarding the the same. size standard change at any time, not proposed revision of any of these SBA disagrees with the second just within 30 days of the change, so sections, and is adopting these revisions comment. The statute provides that long as the change has produced a exactly as proposed, with three minor SBA’s OHA, in deciding Size Standard negative financial impact on businesses. changes. In § 134.805(d), the words ‘‘at Petitions, ‘‘shall use the same process it SBA notes, with respect to the second his or her home address’’ are being uses to decide challenges to the size of comment, that the 30-day deadline for removed as unnecessary since service is a small business concern.’’ Small filing a Petition is statutory and thus by email. In § 134.807(a), the words ‘‘it Business Act section 3(a)(9)(C), 15 SBA may not change it. As for wishes’’ are being replaced with ‘‘SBA U.S.C. 632(a)(9)(C). A challenge to a opportunities to comment on size wishes’’ for clarity. In § 134.809(a), an concern’s small business size status, standards, there is a public comment official’s title is being corrected. also called a size protest, occurs when period each time SBA publishes a a competitive procurement or order has proposed rule, and during this public D. Part 134, Subpart I been restricted to or reserved for small comment period any person may submit SBA proposed to add subpart I setting businesses or a particular group of small a comment for SBA to consider and forth the rules of practice before OHA businesses. The size protest, filed by address in formulating the final rule. for Petitions for Reconsideration of Size either a disappointed offeror or the During the public comment period, Standards. SBA received no comments Government, is initially decided by an commenters need not demonstrate regarding the proposed new §§ 134.901 SBA Area Office in a size determination standing, and may comment on any size (Scope of the rules in this subpart I), which may be appealed to OHA. At both standard being proposed, regardless of 134.905 (Notice and order), 134.907 the protest (Area Office) and the appeal whether the proposed rule would (Filing and service), 134.908 (The (OHA) stages, the process of deciding modify or revise that size standard. administrative record), 134.909 challenges to a concern’s small business Outside of public comment periods, (Standard of review), 134.911 (Response size status requires a non-Government persons may address their concerns to the Size Standard Petition), 134.912 person bringing the challenge to have about any size standard at any time to (Discovery and oral hearings), 134.913 standing as a small business offeror SBA’s Size Standards Office pursuant to (New evidence), 134.914 (The decision), remaining in the competition and still § 121.102(d). SBA is adopting new 134.915 (Remand), 134.917 (Equal eligible for award. See 13 CFR § 134.903 exactly as proposed. Access to Justice Act), and 134.918 121.1001(a)(1) (‘‘Any offeror whom the Section 134.904 sets out the (Judicial review). SBA is adopting these contracting officer has not eliminated requirements for a Size Standard new sections as proposed, with one for reasons unrelated to size’’), 13 CFR Petition. Among these, the Petition must minor change to the first sentence in 134.302(a) (‘‘Appeals from size include any public comments the § 134.914, where the second ‘‘the’’ is determinations . . . may be filed with Petitioner had submitted during the OHA by the following, as applicable: rulemaking on the challenged size nlaroche on DSK30NT082PROD with RULES being deleted. Proposed § 134.902 provides that any Any person adversely affected by a size standard, and the Petitioner also must person ‘‘adversely affected’’ by a new, determination . . . .’’); Size Appeal of demonstrate standing for each revised, or modified size standard has Straughan Environmental, Inc., SBA No. challenged size standard. One standing to file a Petition within 30 days SIZ–5767, at 3 (2016), available at commenter suggested an additional from the date of publication of the final www.sba.gov/oha. Because the statute requirement, that the Petitioner must rule promulgating that size standard. requires OHA to follow the process used actually have submitted a public VerDate Sep<11>2014 13:07 Jun 01, 2017 Jkt 241001 PO 00000 Frm 00002 Fmt 4700 Sfmt 4700 E:\FR\FM\02JNR1.SGM 02JNR1

Federal Register / Vol. 82, No. 105 / Friday, June 2, 2017 / Rules and Regulations 25505 comment during the rulemaking. The not a small business. Would contract the principles set forth in the Executive same commenter also noted its support award to that concern as a small Order. for the requirement to demonstrate business be valid even though the prior Executive Order 12988 standing for each challenged size size standard has been restored? standard. SBA disagrees with the SBA responds to this comment by This action meets applicable suggestion to require the Petitioner to stating that the contract award to that standards set forth in section 3(a) and have submitted a public comment concern as a small business is valid 3(b)(2) of Executive Order 12988, Civil during the rulemaking, because this despite SBA’s rescission of the revised, Justice Reform, to minimize litigation, additional requirement would be overly higher size standard. This result is eliminate ambiguity, and reduce restrictive. Thus, SBA is adopting new consistent with the general rule, stated burden. The action does not have § 134.904 as proposed, with the deletion in § 121.404(a), that a concern’s small retroactive or preemptive effect. of the unnecessary mail code in business eligibility is determined on the Executive Order 13175 § 134.904(d)(1). self-certification date and is based on Section 134.906 permits interested the size standard in effect at that time. For the purposes of Executive Order persons with a direct stake in the Thus, the procuring agency may count 13175, Consultation and Coordination outcome of the case to intervene and the award toward its small business with Indian Tribal Governments, SBA obtain a copy of the Petition, under a goals. On the other hand, if the has determined that this final rule will protective order if necessary. One procuring agency amends the not have substantial direct effects on commenter requested SBA to change solicitation and requires new self- one or more Indian Tribes, on the this provision to require potential certifications, those self-certifications relationship between the Federal intervenors to meet the same standing will be based on the size standard in Government and Indian Tribes, or on requirement as petitioners, in order to effect on the day they are made. SBA is the distribution of power and prevent large businesses from having a revising the text of § 134.916(a) to responsibilities between the Federal ‘‘back door’’ into the size standard clarify the intended effect of an OHA Government and Indian Tribes. review process. SBA disagrees with this decision granting a Size Standard Therefore, SBA determines that this comment. The proposed rule requires Petition in light of this public comment, final rule does not require consultations only ‘‘a direct stake in the outcome’’ and and also to provide that, on remand, with tribal officials or warrant the the OHA Judge will make that SBA may take any appropriate action to publication of a Tribal Summary Impact determination on a case-by-case basis. rescind the challenged revised or Statement. SBA is adopting new § 134.906 exactly modified size standard. as proposed. Executive Order 13132 Section 134.910 requires OHA to Compliance With Executive Orders This rule does not have Federalism dismiss a Petition under four scenarios. 12866, 12988, 13175 and 13132, the implications as defined in Executive One commenter stated support for Paperwork Reduction Act (44 U.S.C. Order 13132. It will not have substantial dismissal under those scenarios. SBA is Ch. 35), and the Regulatory Flexibility direct effects on the States, on the adopting new § 134.910 exactly as Act (5 U.S.C. 601–612) relationship between the national proposed. Executive Order 12866 government and the States, or on the Section 134.916 sets out the effects of distribution of power and OHA’s decision in a Size Standard OMB has determined that this rule responsibilities among the various Petition case. Paragraph (a) provides does not constitute a ‘‘significant levels of government, as specified in the that if the challenged size standard is a regulatory action’’ under Executive Executive Order. As such it does not modified or revised size standard, and Order 12866. This rule is also not a warrant the preparation of a Federalism OHA grants the Size Standard Petition, major rule under the Congressional Assessment. SBA will rescind the challenged size Review Act, 5 U.S.C. 800. This rule standard and restore the prior size establishes the procedures for Petitions Paperwork Reduction Act standard, which will remain in effect for Reconsideration of Size Standards at The SBA has determined that this rule until SBA issues a new size standard. If SBA’s Office of Hearings and Appeals does not impose additional reporting or the challenged size standard is newly (OHA) and revises procedural rules at recordkeeping requirements under the established, and OHA grants the Size OHA for agency employee disputes. As Paperwork Reduction Act, 44 U.S.C. Standard Petition, the challenged size such, the rule has no effect on the Chapter 35. standard remains in effect. Paragraph (b) amount or dollar value of any Federal provides that if OHA denies a Size contract requirements or of any Regulatory Flexibility Act Standard Petition, the challenged size financial assistance provided through The Regulatory Flexibility Act of 1980 standard remains in effect. SBA. Therefore, the rule is not likely to (RFA), 5 U.S.C. 601–612, as amended, One commenter requested have an annual economic effect of $100 requires Federal agencies to consider clarification of the effect that OHA’s million or more, result in a major the potential impact of regulations on grant of a Size Standard Petition would increase in costs or prices, or have a small entities during rulemaking. Small have on procurement actions. The significant adverse effect on competition entities include small businesses, small commenter posed the hypothetical of a or the United States economy. In not-for-profit organizations, and small concern that is a small business under addition, this rule does not create a governmental jurisdictions. Section 605 the revised size standard but is not a serious inconsistency or otherwise of the RFA allows an agency to certify small business under the prior size interfere with an action taken or a rule, in lieu of preparing an analysis, standard. The concern self-certifies as planned by another agency, materially if the rulemaking is not expected to nlaroche on DSK30NT082PROD with RULES small under the revised size standard alter the budgetary impact of have a significant economic impact on with its initial offer including price. entitlements, grants, user fees, loan a substantial number of small entities. Later, OHA grants a Size Standard programs or the rights and obligations of This final rule revises the regulations Petition and SBA rescinds the revised such recipients, nor raise novel legal or governing cases before SBA’s Office of size standard, restoring the prior size policy issues arising out of legal Hearings and Appeals (OHA), SBA’s standard, under which that concern is mandates, the President’s priorities, or administrative tribunal. These VerDate Sep<11>2014 13:07 Jun 01, 2017 Jkt 241001 PO 00000 Frm 00003 Fmt 4700 Sfmt 4700 E:\FR\FM\02JNR1.SGM 02JNR1

25506 Federal Register / Vol. 82, No. 105 / Friday, June 2, 2017 / Rules and Regulations regulations are procedural by nature. 13 CFR Part 134 Authority: 5 U.S.C. 504; 15 U.S.C. 632, Specifically, the final rule establishes 634(b)(6), 634(i), 637(a), 648(l), 656(i), and Administrative practice and 687(c); E.O. 12549, 51 FR 6370, 3 CFR, 1986 rules of practice for Petitions for procedure, Claims, Equal access to Comp., p. 189. Reconsideration of Size Standards (Size justice, Lawyers, Organization and Standard Petitions), a new type of functions (government agencies). ■ 4. Amend § 134.101 by revising the administrative litigation mandated by For the reasons stated in the definitions of ‘‘AA/OHA’’ and ‘‘Judge’’ 869(b) of the National Defense preamble, the U.S. Small Business and adding definitions for Authorization Act for Fiscal Year 2016. Administration amends 13 CFR parts ‘‘Administrative Judge’’, ‘‘Petitioner’’, This legislation provides a new 121 and 134 as follows: ‘‘Size Standard Petition’’, and ‘‘Step statutory right to challenge a size One and Step Two’’ in alphabetical standard revised, modified, or PART 121—SMALL BUSINESS SIZE order to read as follows: established by the SBA through a final REGULATIONS § 134.101 Definitions. rule. Further, this legislation requires ■ 1. The authority citation for part 121 * * * * * OHA to hear any Size Standard continues to read as follows: AA/OHA means the Assistant Petitions that are filed. This final rule Authority: 15 U.S.C. 632, 634(b)(6), 662, Administrator for OHA, who is also the merely provides the rules of practice for and 694a(9). Chief Hearing Officer. the orderly hearing and disposition of Size Standard Petitions at OHA. While ■ 2. Amend § 121.102 by adding * * * * * SBA did not anticipate that this final paragraphs (e), (f), and (g) to read as Administrative Judge means a Hearing rule would have a significant economic follows: Officer, as described at 15 U.S.C. 634(i), impact on any small business, we did appointed by OHA to adjudicate cases. § 121.102 How does SBA establish size request comments from any small standards? * * * * * business setting out how and to what Judge means the Administrative Judge * * * * * degree this final rule would affect it (e) When SBA publishes a final rule or Administrative Law Judge who economically. No comments were in the Federal Register revising, decides an appeal or petition brought received regarding RFA issues. modifying, or establishing a size before OHA, or the AA/OHA when he standard, SBA will include in the final or she acts as an Administrative Judge. The Small Business Size Regulations provide that persons requesting to rule, an instruction that interested * * * * * change existing size standards or to persons may file a petition for Petitioner means the person who establish new size standards may reconsideration of a revised, modified, initially files a petition before OHA. address these requests to SBA’s Office of or established size standard at SBA’s * * * * * Size Standards. 13 CFR 121.102(d). Over Office of Hearings and Appeals (OHA) Size Standard Petition means a the past five years, fewer than ten letters within 30 calendar days after petition for reconsideration of a revised, concerning size standards have been publication of the final rule in modified, or established size standard submitted per year, supporting SBA’s accordance with 15 U.S.C. 632(a)(9) and filed with OHA pursuant to 15 U.S.C. belief that this final rule will not affect part 134, subpart I of this chapter. The 632(a)(9) and subpart I of this part. a substantial number of small entities. instruction will provide the mailing Step One and Step Two refer to the Further, a business adversely affected by address, facsimile number, and email steps of the Employee Dispute a final rule revising a size standard has address of OHA. Resolution Process, see § 134.801(a) for (f) Within 14 calendar days after a more information. always had (and would continue to petition for reconsideration of a size have) the option of judicial review in ■ 5. Amend § 134.102 by revising standard is filed, unless it appears OHA Federal court, yet the SBA knows of no paragraphs (r) and (t) to read as follows: will dismiss the petition for such lawsuit ever having been filed. reconsideration, SBA will publish a § 134.102 Jurisdiction of OHA. In addition to establishing rules of document in the Federal Register practice for Size Standard Petitions, this * * * * * announcing the size standard or rule revises OHA’s rules of practice for (r) Appeals from SBA Employee standards that have been challenged, the SBA Employee Disputes. This Dispute Resolution Process cases Federal Register citation of the final rulemaking is procedural, would impose (Employee Disputes) under Standard rule, the assigned OHA docket number, no significant additional requirements Operating Procedure (SOP) 37 71 and the date of the close of record. The (available at http://www.sba.gov/tools/ on small entities, and would have document will further state that resourcelibrary/sops/index.html or minimal, if any, effect on small entities. interested parties may contact OHA to through OHA’s Web site http:// Therefore, the Administrator of SBA intervene in the dispute pursuant to www.sba.gov/oha) and subpart H of this certifies under 5 U.S.C. 605(b) that this § 134.906 of this chapter. (g) Where OHA grants a petition for part; final rule does not have a significant * * * * * reconsideration of a size standard that economic impact on a substantial (t) Petitions for reconsideration of had been revised or modified, OHA will number of small entities. revised, modified, or established size remand the case to SBA’s Office of Size List of Subjects Standards for further action in standards pursuant to 15 U.S.C. accordance with § 134.916(a) of this 632(a)(9). 13 CFR Part 121 chapter. ■ 6. Amend § 134.201 by: nlaroche on DSK30NT082PROD with RULES Administrative practice and ■ a. Removing the word ‘‘and’’ in PART 134—RULES OF PROCEDURE procedure, Government procurement, paragraph (b)(6); GOVERNING CASES BEFORE THE Government property, Grant programs— ■ b. Redesignating paragraph (b)(7) as OFFICE OF HEARINGS AND APPEALS business, Individuals with disabilities, paragraph (b)(8); and Loan programs—business, Small ■ 3. The authority citation for part 134 ■ c. Adding a new paragraph (b)(7). businesses. is revised to read as follows: The addition reads as follows: VerDate Sep<11>2014 13:07 Jun 01, 2017 Jkt 241001 PO 00000 Frm 00004 Fmt 4700 Sfmt 4700 E:\FR\FM\02JNR1.SGM 02JNR1

Federal Register / Vol. 82, No. 105 / Friday, June 2, 2017 / Rules and Regulations 25507 § 134.201 Scope of the rules in this (3) Statement of why the Step Two The PFR must specify the objections to subpart B. decision (or Step One decision, if no OHA’s decision. * * * * * Step Two decision was received), is ■ 15. Add subpart I to read as follows: (b) * * * alleged to be in error; (7) For Size Standard Petitions, in Subpart I—Rules of Practice for Petitions * * * * * for Reconsideration of Size Standards subpart I of this part (§§ 134.901 (b) * * * through 134.918); and Sec. (1) The Step Two Official; 134.901 Scope of the rules in this subpart. * * * * * * * * * * 134.902 Standing. ■ 7. Amend § 134.227 by: 134.903 Commencement of cases. ■ a. Removing the word ‘‘and’’ in § 134.805 [Amended] 134.904 Requirements for the Size Standard paragraph (b)(3); ■ 11. Amend § 134.805 in paragraph (d) Petition. ■ b. Redesignating paragraph (b)(4) as by removing the words ‘‘U.S. Mail’’ and 134.905 Notice and order. paragraph (b)(5); and 134.906 Intervention. adding in their place the word ‘‘email’’ ■ c. Adding a new paragraph (b)(4). 134.907 Filing and service. and removing the words ‘‘at his or her 134.908 The administrative record. The addition reads as follows: home address’’. 134.909 Standard of review. § 134.227 Finality of decisions. 134.910 Dismissal. § 134.807 [Amended] 134.911 Response to the Size Standard * * * * * ■ 12. Amend § 134.807 as follows: Petition. (b) * * * ■ a. By removing from paragraph (a), the 134.912 Discovery and oral hearings. (4) Size Standard Petitions; and 134.913 New evidence. words ‘‘a copy of the Dispute File’’ and * * * * * adding in their place the words ‘‘any 134.914 The decision. documentation, not already filed by the 134.915 Remand. § 134.801 [Amended] 134.916 Effects of OHA’s decision. Employee, that SBA wishes OHA to 134.917 Equal Access to Justice Act. ■ 8. Amend § 134.801 by: consider’’; ■ a. Adding the word ‘‘and’’ at the end 134.918 Judicial review. ■ b. By removing from paragraph (b), of paragraph (b)(9); the words ‘‘15 days’’ and ‘‘45 days’’ and ■ b. Removing ‘‘; and’’ at the end of Subpart I—Rules of Practice for adding in both their places the words Petitions for Reconsideration of Size paragraph (b)(10) and adding a period in ‘‘15 calendar days’’; and its place; and Standards ■ c. By removing from paragraph (c), the ■ c. Removing paragraph (b)(11). § 134.901 Scope of the rules in this words ‘‘and the Dispute File are ■ 9. Amend § 134.803 by revising the normally the last submissions’’ and by subpart. section heading and paragraphs (a) and adding in their place the words ‘‘is (a) The rules of practice in this (b) to read as follows: normally the last submission’’. subpart apply to Size Standard Petitions. § 134.803 Commencement of appeals from § 134.808 [Amended] (b) Except where inconsistent with SBA Employee Dispute Resolution Process cases (Employee Disputes). ■ 13. Amend § 134.808(a) by removing this subpart, the provisions of subparts the word ‘‘AMO’s’’ and adding in its A and B of this part apply to Size (a) An appeal from a Step Two place the words ‘‘Step One or Step Standard Petitions listed in paragraph decision must be commenced by filing Two’’. (a) of this section. an appeal petition within 15 calendar days from the date the Employee ■ 14. Revise § 134.809 to read as § 134.902 Standing. receives the Step Two decision. follows: (a) A Size Standard Petition may be (b) If the Step Two Official does not filed with OHA by any person that is § 134.809 Review of initial decision. issue a decision within 15 calendar days adversely affected by the of receiving the SBA Dispute Form from (a) If the Chief Human Capital Officer, Administrator’s decision to revise, the Employee, the Employee must file General Counsel for SBA, or Counsel to modify, or establish a size standard. his/her appeal petition at OHA no later the Inspector General (IG) believes (b) A business entity is not adversely than 15 calendar days from the date the OHA’s decision is contrary to law, rule, affected unless it conducts business in Step Two decision was due. regulation, or SBA policy, that official the industry associated with the size may file a Petition for Review (PFR) of standard that is being challenged and: * * * * * the decision with the Deputy (1) The business entity qualified as a ■ 10. Amend § 134.804 by: Administrator (or IG for disputes by OIG small business concern before the size ■ a. Revising paragraphs (a)(1), (2), and employees) for a final SBA Decision. standard was revised or modified; or (3); Only the Chief Human Capital Officer, ■ b. Adding the word ‘‘and’’ after the (2) The business entity qualifies as a General Counsel, or Counsel to the IG small business under the size standard semicolon in paragraph (a)(5); may file a PFR of an OHA decision; the ■ c. Removing paragraph (a)(6); as revised or modified. Employee may not. ■ d. Redesignating paragraph (a)(7) as (b) To file a PFR, the official must § 134.903 Commencement of cases. paragraph (a)(6); ■ e. Revising paragraph (b)(1); request a complete copy of the dispute (a) A Size Standard Petition must be ■ f. Removing paragraph (c); and file from the Assistant Administrator for filed at OHA not later than 30 calendar ■ g. Redesignating paragraphs (d) and OHA (AA/OHA) within five calendar days after the publication in the Federal (e) as paragraphs (c) and (d). days of receiving the decision. The AA/ Register of the final rule that revises, OHA will provide a copy of the dispute nlaroche on DSK30NT082PROD with RULES The revisions read as follows: modifies, or establishes the challenged file to the official, the Employee, and size standard. An untimely Size § 134.804 The appeal petition. the Employee’s representative within Standard Petition will be dismissed. (a) * * * five calendar days of the official’s (b) A Size Standard Petition filed in (1) The completed SBA Dispute Form; request. The official’s PFR is due no response to a notice of proposed (2) A copy of the Step One and Step later than 15 calendar days from the rulemaking is premature and will be Two decisions, if any; date the official receives the dispute file. dismissed. VerDate Sep<11>2014 13:07 Jun 01, 2017 Jkt 241001 PO 00000 Frm 00005 Fmt 4700 Sfmt 4700 E:\FR\FM\02JNR1.SGM 02JNR1

25508 Federal Register / Vol. 82, No. 105 / Friday, June 2, 2017 / Rules and Regulations (c) A Size Standard Petition § 134.905 Notice and order. process employed by the Administrator challenging a size standard that has not Upon receipt of a Size Standard to revise, modify, or establish the size been revised, modified, or established Petition, OHA will assign the matter to standard was arbitrary, capricious, an through publication in the Federal a Judge in accordance with § 134.218. abuse of discretion, or otherwise not in Register will be dismissed. Unless it appears that the Size Standard accordance with the law. OHA will not Petition will be dismissed under adjudicate arguments that a different § 134.904 Requirements for the Size size standard should have been selected. Standard Petition. § 134.910, the presiding Judge will issue a notice and order initiating the The Petitioner bears the burden of proof. (a) Form. There is no required form publication required by § 121.102(f) of for a Size Standard Petition. However, it § 134.910 Dismissal. this chapter; specifying a date for the must include the following information: Office of Size Standards to transmit to The Judge must dismiss the Size (1) A copy of the final rule published OHA a copy of the administrative record Standard Petition if: in the Federal Register to revise, supporting the revision, modification, or (a) The Size Standard Petition does modify, or establish a size standard, or establishment of the challenged size not, on its face, allege specific facts that an electronic link to the final rule; standard(s); and establishing a date for if proven to be true, warrant remand of (2) A full and specific statement as to the close of record. Typically, the the size standard; which size standard(s) in the final rule administrative record will be due seven (b) The Petitioner is not adversely the Petitioner is challenging and why calendar days after issuance of the affected by the final rule revising, the process that was used to revise, notice and order, and the record will modifying, or establishing a size modify, or establish each challenged close 45 calendar days from the date of standard; size standard is alleged to be arbitrary, (c) The Size Standard Petition is OHA’s receipt of the Size Standard capricious, an abuse of discretion, or untimely or premature pursuant to Petition. otherwise not in accordance with the § 134.903 or is not otherwise filed in law, together with argument supporting § 134.906 Intervention. accordance with the requirements in such allegation; In accordance with § 134.210(b), subparts A and B of this part; or (3) A copy of any comments the interested persons with a direct stake in (d) The matter has been decided or is Petitioner submitted in response to the the outcome of the case may contact the subject of adjudication before a proposed notice of rulemaking that OHA to intervene in the proceeding and court of competent jurisdiction over pertained to the size standard(s) in obtain a copy of the Size Standard such matters. question, or a statement that no such Petition. In the event that the Size § 134.911 Response to the Size Standard comments were submitted; and Standard Petition contains confidential Petition. (4) The name, mailing address, information and the intervener is not a Although not required, any intervener telephone number, facsimile number, governmental entity, the Judge may may file and serve a response email address, and signature of the require that the intervener’s attorney be supporting or opposing the Size Petitioner or its attorney. admitted to a protective order before Standard Petition at any time prior to (b) Multiple size standards. A obtaining a complete copy of the Size the close of record. SBA may intervene Petitioner may challenge multiple size Standard Petition. as of right at any time in any case until standards that were revised, modified, 15 days after the close of record, or the § 134.907 Filing and service. or established in the same final rule in issuance of a decision, whichever comes a single Size Standard Petition, The provisions of § 134.204 apply to the filing and service of all pleadings first. The response must present provided that the Petitioner argument. demonstrates standing for each of the and other submissions permitted under challenged size standards. this subpart unless otherwise indicated § 134.912 Discovery and oral hearings. (c) Format. The formatting provisions in this subpart. Discovery will not be permitted. Oral of § 134.203(d) apply to Size Standard § 134.908 The administrative record. hearings will not be held unless the Petitions. Judge determines that the dispute The Office of Size Standards will (d) Service. In addition to filing the cannot be resolved except by the taking transmit to OHA a copy of the Size Standard Petition at OHA, the of live testimony and the confrontation documentation and analysis supporting Petitioner must serve a copy of the Size of witnesses. the revision, modification, or Standard Petition upon each of the establishment of the challenged size § 134.913 New evidence. following: standard by the date specified in the (1) SBA’s Office of Size Standards, Disputes under this subpart ordinarily notice and order. The Chief, Office of will be decided based on the pleadings U.S. Small Business Administration, Size Standards, will certify and 409 3rd Street SW., Washington, DC and the administrative record. The authenticate that the administrative Judge may admit additional evidence 20416; facsimile number (202) 205– record, to the best of his or her 6390; or sizestandards@sba.gov; and upon a motion establishing good cause. knowledge, is complete and correct. The (2) SBA’s Office of General Counsel, Petitioner and any interveners may, § 134.914 The decision. Associate General Counsel for upon request, review the administrative The Judge will issue his or her Procurement Law, U.S. Small Business record submitted to OHA. The decision within 45 calendar days after Administration, 409 3rd Street SW., administrative record will include the close of record, as practicable. The Washington, DC 20416; facsimile documentation and analysis supporting Judge’s decision is final and will not be number (202) 205–6873; or nlaroche on DSK30NT082PROD with RULES the revision, modification, or reconsidered. OPLService@sba.gov. establishment of the challenged size (e) Certificate of service. The standard. § 134.915 Remand. Petitioner must attach to the Size If OHA grants a Size Standard Standard Petition a signed certificate of § 134.909 Standard of review. Petition, OHA will remand the matter to service meeting the requirements of The standard of review for deciding a the Office of Size Standards for further § 134.204(d). Size Standard Petition is whether the analysis. Once remanded, OHA no VerDate Sep<11>2014 13:07 Jun 01, 2017 Jkt 241001 PO 00000 Frm 00006 Fmt 4700 Sfmt 4700 E:\FR\FM\02JNR1.SGM 02JNR1

Federal Register / Vol. 82, No. 105 / Friday, June 2, 2017 / Rules and Regulations 25509 longer has jurisdiction over the matter DEPARTMENT OF TRANSPORTATION The Innovative Solutions & Support, unless a new Size Standard Petition is Inc., modification installs an autothrust filed as a result of a new final rule Federal Aviation Administration system in the PC–12, PC–12/45, and published in the Federal Register. PC–12/47 airplanes to reduce pilot 14 CFR Part 23 workload. The autothrust system is § 134.916 Effects of OHA’s decision. useable in all phases of flight from 400 [Docket No. FAA–2017–0290; Special (a) If OHA grants a Size Standard Conditions No. 23–281–SC] feet AGL after takeoff down to the Petition of a modified or revised size decision height on approach. The standard, SBA will take appropriate Special Conditions: Pilatus Aircraft system includes a torque and airspeed action to rescind that size standard and Limited Models PC–12, PC–12/45, PC– mode along with monitors to prevent 12/47; Autothrust System the system from exceeding critical to restore the one that was in effect engine or airspeed limits. A stepper before the one challenged in the Size AGENCY: Federal Aviation motor provides throttle movement by Standard Petition. The restored size Administration (FAA), DOT. acting through a linear actuator, which standard will remain in effect until SBA ACTION: Final special condition. acts as a link between the stepper motor issues a new size standard. The OHA and throttle. The pilot can override the decision does not affect the validity of SUMMARY: This special condition is for linear actuator by moving the throttle, a concern’s size representation made the Pilatus Aircraft Limited PC–12, PC– which automatically disengages the under the challenged size standard prior 12/45, and PC–12/47 airplanes. These autothrust system upon disagreement in to the effective date of the SBA action airplanes, as modified by Innovative the expected throttle position versus the rescinding that challenged size Solutions & Support, Inc., will have a actual position. standard. Such a concern remains novel or unusual design feature eligible for award as a small business, associated with the use of an autothrust Type Certification Basis and the procuring agency may count the system. The applicable airworthiness Under the provisions of 14 CFR regulations do not contain adequate or 21.101, Innovative Solutions & Support award towards its small business goals. appropriate safety standards for this must show that the PC–12, PC–12/45, If the procuring agency amends the design feature. This special condition and PC–12/47 airplanes, as changed, solicitation and requires new self- contains the additional safety standards continues to meet the applicable certifications, those self-certifications the Administrator considers necessary will be based on the size standard in provisions of the regulations to establish a level of safety equivalent incorporated by reference in Type effect on the day those self-certifications to that established by the existing are made. If the size standard in Certificate No. A78EU. The regulations airworthiness standards. incorporated by reference in the type question was newly established, the DATES: This special condition is challenged size standard remains in certificate are commonly referred to as effective June 2, 2017 and is applicable the ‘‘original type certification basis.’’ effect while SBA conducts its further beginning May 24, 2017. The regulations incorporated by analysis on remand. FOR FURTHER INFORMATION CONTACT: Jeff reference in A78EU are as follows: 14 (b) If OHA denies a Size Standard Pretz, Federal Aviation Administration, CFR part 23, amendments 23–1 through Petition, the size standard remains as Small Airplane Directorate, Aircraft 23–42.1 published in the Code of Federal Certification Service, 901 Locust, Room If the Administrator finds the Regulations. 301, Kansas City, MO 64106; telephone applicable airworthiness regulations (816) 329–3239; facsimile (816) 329– (i.e., 14 CFR part 23) do not contain § 134.917 Equal Access to Justice Act. 4090. adequate or appropriate safety standards A prevailing Petitioner is not entitled SUPPLEMENTARY INFORMATION: for the PC–12, PC–12/45, and PC–12/47 to recover attorney’s fees. Size Standard airplanes because of a novel or unusual Petitions are not proceedings that are Background design feature(s), special conditions are required to be conducted by an On April 4, 2016, Innovative prescribed under the provisions of Administrative Law Judge under Solutions & Support applied for a § 21.16. § 134.603. supplemental type certificate for In addition to the applicable installation of an autothrust system in airworthiness regulations and special § 134.918 Judicial review. the PC–12, PC–12/45, and PC–12/47 conditions, the PC–12, PC–12/45, and airplanes. The autothrust system is PC–12/47 airplanes must comply with The publication of a final rule in the capable of setting forward thrust based the fuel vent and exhaust emission Federal Register is considered the final requirements of 14 CFR part 34 and the agency action for purposes of seeking on operation in either a pilot selectable torque or airspeed mode. Operation is noise certification requirements of 14 judicial review. CFR part 36. limited to use only when above 400 feet Dated: May 11, 2017. above ground level (AGL) after takeoff, The FAA issues special conditions, as Linda E. McMahon, and requires disengagement at decision defined in 14 CFR 11.19, in accordance Administrator. height (DH) or minimum decision with § 11.38 and they become part of the altitude (MDA) on approach. The PC– type certification basis under § 21.101. [FR Doc. 2017–10471 Filed 6–1–17; 8:45 am] 12, PC–12/45, and PC–12/47 airplanes Special conditions are initially BILLING CODE 8025–01–P are nine-passenger, two-crewmember, applicable to the model for which they single-engine turbo-propeller airplanes are issued. Should the applicant apply nlaroche on DSK30NT082PROD with RULES with a 30,000-foot service ceiling and a for a supplemental type certificate to maximum takeoff weight of 9,039 to modify any other model included on the 10,450 pounds—depending on airplane 1 See Type Certification Data Sheet A78EU, model. These airplanes are powered by revision 25, ‘‘Certification Basis’’ section for the a single Pratt & Whitney PT6A–67 PC–12, PC–12/45, and PC–12/47 full certification engine. basis. (http://rgl.faa.gov/.) VerDate Sep<11>2014 13:07 Jun 01, 2017 Jkt 241001 PO 00000 Frm 00007 Fmt 4700 Sfmt 4700 E:\FR\FM\02JNR1.SGM 02JNR1


Document Created: 2017-06-02 00:38:19
Document Modified: 2017-06-02 00:38:19
CategoryRegulatory Information
CollectionFederal Register
sudoc ClassAE 2.7:
GS 4.107:
AE 2.106:
PublisherOffice of the Federal Register, National Archives and Records Administration
SectionRules and Regulations
ActionFinal rule.
DatesEffective Date: This rule is effective on July 3, 2017.
ContactLinda (Lin) DiGiandomenico, Attorney Advisor, at (202) 401-8206 or [email protected]
FR Citation82 FR 25503 
RIN Number3245-AG82
CFR Citation13 CFR 121
13 CFR 134
CFR AssociatedAdministrative Practice and Procedure; Government Procurement; Government Property; Grant Programs-Business; Individuals with Disabilities; Loan Programs-Business; Small Businesses; Claims; Equal Access to Justice; Lawyers and Organization and Functions (government Agencies)
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