Unknown. Final rule

8,690 words·~40 min read·/register/2005/03/23/05-5466

A research copy — for the controlling text, always check the official state or federal source. Not legal advice.

--- schema: federal-register doc_type: fedreg source_file: FR-2005-03-23.xml --- 70 55 Wednesday, March 23, 2005 Contents Agriculture Agriculture Department See Commodity Credit Corporation See Forest Service See Grain Inspection, Packers and Stockyards Administration See Natural Resources Conservation Service NOTICES Agency information collection activities; proposals, submissions, and approvals, 14635-14636 05-5715 Air Force Air Force Department NOTICES Active military service and discharge determinations:

Vietnamese citizens who served under contract with U.S. Armed Forces assigned to reconnaissance teams and exploited forces, 14660 05-5691 Environmental statements; notice of intent: Anderson Air Force Base, GU; correction, 14660 05-5712 Environmental statements; record of decision: Johnston Atoll Airfield mission termination, 14660-14661 05-5689 Barry Goldwater Barry M. Goldwater Scholarship and Excellence in Education Foundation NOTICES Meetings; Sunshine Act, 14643 05-5881 Bonneville Bonneville Power Administration NOTICES Environmental statements; record of decision:

Federal Columbia River Transmission System— Jones Canyon Switching Station, OR; Leaning Juniper Wind Project, 14662-14663 05-5726 Centers Centers for Disease Control and Prevention NOTICES Grant and cooperative agreement awards: Association of Public Health Laboratories, 14686-14687 05-5706 Grants and cooperative agreements; availability, etc.: Maternal, infant, and reproductive health; national and State coalition capacity building, 14687-14696 05-5685 Meetings: Disease, Disability, and Injury Prevention and Control Special Emphasis Panel, 14696 05-5708 Children Children and Families Administration NOTICES Agency information collection activities; proposals, submissions, and approvals, 14696-14697 05-5687 05-5688 Coast Guard Coast Guard PROPOSED RULES Outer Continental Shelf activities:

Gulf of Mexico; safety zones, 14612-14616 05-5765 05-5766 Commerce Commerce Department See International Trade Administration See National Oceanic and Atmospheric Administration Commodity Commodity Credit Corporation PROPOSED RULES Loan and purchase programs: Environmental Quality Incentives Program, 14578-14579 05-5556 Defense Defense Department See Air Force Department RULES Acquisition regulations: Contractor performance of acquisition functions closely associated with inherently governmental functions, 14572-14573 05-5629 Contractor performance of security-guard functions, 14576-14577 05-5631 Major systems acquisition, 14574-14576 05-5626 Technical amendment, 14573-14574 05-5633 Testing program for negotiation of comprehensive small business subcontracting plans; extension, 14574 05-5630 Federal Acquisition Regulation (FAR):

Introduction, 14949-14950 05-5655 Service-Disabled Veteran-Owned Small Business Concerns Procurement Program, 14949-14962 05-5656 Small entity compliance guide, 14961-14962 05-5657 PROPOSED RULES Acquisition regulations: Component breakout, 14623-14624 05-5627 Contracting by negotiation, 14624-14625 05-5628 Contract modifications, 14629-14630 05-5624 Foreign acquisition, 14625-14628 05-5625 Totally enclosed lifeboat survival systems; restrictions, 14628 05-5632 NOTICES Meetings:

President's Information Technology Advisory Committee, 14659 05-5747 Sexual Harassment and Violence at the Military Service Academies Task Force, 14659 05-5745 U.S. Joint Forces Command Transformation Advisory Group, 14660 05-5746 Education Education Department NOTICES Agency information collection activities; proposals, submissions, and approvals, 14661 05-5716 Employee Employee Benefits Security Administration NOTICES Employee benefit plans; individual exemptions: PAMCAH-UA Local 675 Pension Plan et al., 14716-14732 05-5744 Energy Energy Department See Bonneville Power Administration See Energy Information Administration See Federal Energy Regulatory Commission NOTICES Meetings:

Environmental Management Site-Specific Advisory Board— Oak Ridge Reservation, TN, 14661-14662 05-5727 Natural gas exportation and importation: FUSI LLC et al., 14662 05-5728 Energy Energy Information Administration NOTICES Agency information collection activities; proposals, submissions, and approvals, 14663 05-5729 EPA Environmental Protection Agency RULES Hazardous waste program authorizations: North Carolina, 14556-14559 05-5722 Pesticides; tolerances in food, animal feeds, and raw agricultural commodities:

Dinotefuran, 14535-14546 05-5620 Mesotrione, 14546-14551 05-5719 Thiophanate-methyl, 14551-14556 05-5720 PROPOSED RULES Air quality implementation plans; approval and promulgation; various States: Arizona, 14616-14618 05-5718 Hazardous waste program authorizations: North Carolina, 14623 05-5721 Pesticide registration, cancellation, etc.: Alachlor, etc., 14618-14623 05-5724 NOTICES Agency information collection activities; proposals, submissions, and approvals, 14674-14680 05-5616 05-5617 Meetings:

Association of American Pesticide Control Officials/State FIFRA Issues Research and Evaluation Group, 14680-14681 05-5619 State and Tribal Toxics Action Forum, 14681-14682 05-5618 Executive Executive Office of the President See Management and Budget Office See Presidential Documents FAA Federal Aviation Administration RULES Airports: Passenger facility charges program; application and application approval procedures, 14927-14938 05-5578 Class E airspace, 14529-14530 05-5647 PROPOSED RULES Airworthiness directives:

Airbus, 14597-14599 05-5699 Boeing, 14585-14597 05-5696 05-5697 05-5698 Burkhardt Grob Luft-Und Raumfahrt GmbH & Co. KG, 14580-14585 05-5693 Grob-Werke, 14599-14601 05-5707 McDonnell Douglas, 14599 05-5700 Class E airspace, 14601-14603 05-5763 NOTICES Airport noise compatibility program: Noise exposure maps— Minneapolis-St. Paul International Airport, MN, 14745 05-5648 Exemption petitions; summary and disposition, 14746 05-5759 Reports and guidance documents; availability, etc.:

Collaborative Decisionmaking Pilot Program; establishment and implementation, 14746-14747 05-5646 FCC Federal Communications Commission RULES Common carrier services: Satellite communications— Multichannel video programming distribution market; competition; review of rules and statutory provisions, 14572 05-5835 Common carrier services; Telecommunications Act of 1996; implementation— Consumers’ long distance carriers, unauthorized changes (slamming), 14567-14568 05-5737 Common carriers services:

Individuals with hearing and speech disabilities; telecommunications relay services and speech-to-speech services; clarification, 14568-14570 05-5736 Radio stations; table of assignments: Arkansas and Massachusetts, 14571-14572 05-5734 Various states, 14570-14571 05-5733 NOTICES Agency information collection activities; proposals, submissions, and approvals, 14682-14683 05-5735 Federal Energy Federal Energy Regulatory Commission NOTICES Environmental statements; notice of intent:

Dominion Cove Point LNG, LP, et al., 14671 E5-1273 Hydroelectric applications, 14671-14673 E5-1260 E5-1261 Meetings: Enogex Inc.; technical conference, 14673 E5-1276 Garkane Energy Cooperative, Inc.; technical conference, 14673 E5-1263 New York Independent System Operator, Inc.; staff technical conference, 14674 E5-1259 *Applications, hearings, determinations, etc.:* Algonquin Gas Transmission, LLC, 14663-14664 E5-1264 E5-1275 ANR Pipeline Co., 14664-14665 E5-1258 City Power Marketing, LLC, 14665 E5-1271 El Paso Natural Gas Co., 14665-14666 E5-1277 Florida Gas Transmission Co., 14666 E5-1265 Kinder Morgan Interstate Gas Transmission Co., 14666 E5-1278 KO Transmission Co., 14666-14667 E5-1279 Northern Border Pipeline Co., 14667 E5-1280 Northern Natural Gas Co., 14668 E5-1269 E5-1270 Ozark Gas Transmission, L.L.C., 14668-14669 E5-1268 Public Service Co. of New Hampshire, 14669-14670 E5-1262 Southern Natural Gas Co., 14670 E5-1266 Tennessee Gas Pipeline Co., 14670 E5-1272 Williston Basin Interstate Pipeline Co., 14670-14671 E5-1274 FMC Federal Maritime Commission NOTICES Agreements filed, etc., 14683 05-5756 Federal Motor Federal Motor Carrier Safety Administration NOTICES Motor carrier safety standards:

Driver qualifications— Anders, Rodger, et al.; vision requirement exemption applications, 14747-14748 05-5760 FTC Federal Trade Commission NOTICES Premerger notification waiting periods; early terminations, 14683-14685 05-5732 Financial Financial Management Service See Fiscal Service Fiscal Fiscal Service RULES Book entry Treasury savings bonds: New Treasury Direct system; conversion terms and conditions, 14939-14948 05-5621 Food Food and Drug Administration RULES GRAS or prior-sanctioned ingredients:

Menhaden oil, 14530-14532 05-5641 Medical devices: Immunology and microbiology devices— Automated fluorescence in situ hybridization enumeration systems; classification, 14532-14534 05-5643 NOTICES Reports and guidance documents; availability, etc.: Automated fluorescence in situ hybridization enumeration systems; Class II special controls, 14697-14698 05-5642 Pharmacogenomic data submissions; industry guidance, 14698-14699 05-5381 Forest Forest Service NOTICES Meetings: Black Hills National Forest, SD and WY;

Inyan Kara and Jewel Cave mineral withdrawal Advisory Board, 14636-14637 05-5704 Resource Advisory Committees— Modoc County, 14637 05-5705 Ravalli County, 14637 05-5686 Reports and guidance documents; availability, etc.: National Forest System lands— Forest Service manuals and handbook; interim directives; comment request, 14637-14642 05-5652 GSA General Services Administration RULES Federal Acquisition Regulation (FAR): Introduction, 14949-14950 05-5655 Service-Disabled Veteran-Owned Small Business Concerns Procurement Program, 14949-14962 05-5656 Small entity compliance guide, 14961-14962 05-5657 Federal travel:

Relocation income tax allowance tax tables; correction, 14560-14561 05-5709 Privacy Act; implementation, 14559-14560 05-5654 Government Government Ethics Office NOTICES Agency information collection activities; proposals, submissions, and approvals, 14685-14686 05-5690 GIPSA Grain Inspection, Packers and Stockyards Administration NOTICES Agency designation actions: Arizona, 14642 05-5713 Health Health and Human Services Department See Centers for Disease Control and Prevention See Children and Families Administration See Food and Drug Administration See National Institutes of Health Homeland Homeland Security Department See Coast Guard See U.S.

Citizenship and Immigration Services Housing Housing and Urban Development Department NOTICES Agency information collection activities; proposals, submissions, and approvals, 14708 05-5645 Environmental statements; availability, etc.: Redding, CA; Stillwater Business Park, 14708-14709 E5-1253 Inter-American Inter-American Foundation NOTICES Meetings; Sunshine Act, 14709 05-5893 Interior Interior Department See Land Management Bureau See Minerals Management Service See National Park Service See Surface Mining Reclamation and Enforcement Office IRS Internal Revenue Service NOTICES Agency information collection activities; proposals, submissions, and approvals, 14753-14755 E5-1286 E5-1287 International International Trade Administration NOTICES Antidumping:

Crawfish tail meat from— China, 14648 E5-1282 Small diameter carbon and alloy seamless standard, line, and pressure pipe from— Romania, 14648-14650 E5-1283 Antidumping and countervailing duties: Administrative review requests, 14643-14648 05-5782 International International Trade Commission NOTICES Import investigations: Carbon steel butt-weld pipe fittings from— Various countries, 14713 05-5702 Granular polytetrafluoroethylene resin from— Italy and Japan, 14713-14714 05-5701 Justice Justice Department NOTICES Pollution control; consent judgments:

Browning-Ferris Industries of Ohio, et al., 14714 05-5768 GHK Company LLC, et al., 14714-14715 05-5770 Marathon Ashland Petroleum LLC, 14715 05-5769 Waste Management of Wisconsin, Inc., 14715-14716 05-5767 Labor Labor Department See Employee Benefits Security Administration Land Land Management Bureau RULES General managament: Land use planning, 14561-14567 05-5683 NOTICES Committees; establishment, renewal, termination, etc.: California Desert District Advisory Council, 14710 05-5731 Disclaimer of interest applications:

Montana, 14710-14711 05-5673 Management Management and Budget Office NOTICES Reports and guidance documents; availability, etc.: Costs and benefits of Federal regulations; report to Congress, 14735 05-5651 Minerals Minerals Management Service PROPOSED RULES Outer Continental Shelf; oil, gas, and sulphur operations: Data release and definitions, 14607-14612 05-5678 NASA National Aeronautics and Space Administration RULES Federal Acquisition Regulation (FAR): Introduction, 14949-14950 05-5655 Service-Disabled Veteran-Owned Small Business Concerns Procurement Program, 14949-14962 05-5656 Small entity compliance guide, 14961-14962 05-5657 NOTICES Meetings:

Aeronautics Research Advisory Committee, 14732 05-5771 Patent licenses; non-exclusive, exclusive, or partially exclusive: Modine Manufacturing Co., 14732-14733 05-5711 Phoenix Systems International, Inc., 14733 05-5710 National Credit National Credit Union Administration PROPOSED RULES Credit unions: Credit Union Service Organizations; audit requirement, 14579-14580 05-5677 National Highway National Highway Traffic Safety Administration NOTICES Motor vehicle safety standards:

Exemption petitions, etc.— Continental Tire North America Inc., 14748 05-5650 IC Corp., 14748-14749 05-5761 Nonconforming vehicles— Importation eligibility; determinations, 14749-14752 05-5649 05-5762 NIH National Institutes of Health NOTICES Meetings: AIDS Research Office Advisory Council, 14699-14700 05-5665 National Center for Complementary and Alternative Medicine, 14700, 14702-14703 05-5666 05-5669 National Heart, Lung, and Blood Institute, 14700 05-5660 National Institute of Allergy and Infectious Diseases, 14701 05-5658 National Institute of Child Health and Human Development, 14702 05-5664 National Institute of Dental and Craniofacial Research, 14703 05-5670 National Institute of Environmental Health Sciences, 14701-14702 05-5663 National Institute on Deafness and Other Communication Disorders, 14702 05-5667 National Institute on Drug Abuse, 14701 05-5659 Scientific Review Center, 14703-14705 05-5672 Reports and guidance documents; availability, etc.:

Xenotransplantation; state of science and clinical trials informed consent issues; comment request; correction, 14705-14706 05-5671 NOAA National Oceanic and Atmospheric Administration RULES Fishery conservation and management: Alaska; fisheries of Exclusive Economic Zone— Gulf of Alaska groundfish; correction, 14756-14757 C5-4838 Pollock, 14577 05-5743 PROPOSED RULES Fishery conservation and management: Atlantic highly migratory species— Atlantic bluefin tuna, 14630-14634 05-5742 NOTICES Committees; establishment, renewal, termination, etc.:

International Whaling Commission, 14650 05-5754 Environmental statements; notice of intent: Northeastern United States fisheries; golden tilefish, 14650-14651 E5-1281 Marine mammals: Incidental taking; authorization letters, etc— Vandenberg Air Force Base, CA; harbor activities related to Delta IV/Evolved Expendable Launch Vehicle; Pacific harbor seal, etc., 14651-14656 05-5753 Meetings: Atlantic Large Whale Take Reduction Plan, 14656 05-5751 Permits: Scientific research, 14656-14659 05-5749 05-5752 National Park National Park Service NOTICES National Register of Historic Places:

Pending nominations, 14711-14712 05-5758 NRCS Natural Resources Conservation Service NOTICES Environmental statements; availability, etc.: Sandia Mountain Tributaries Site 1 (Piedra Liza Dam), NM, 14642-14643 05-5653 Nuclear Nuclear Regulatory Commission NOTICES Agency information collection activities; proposals, submissions, and approvals, 14733-14734 05-5680 *Applications, hearings, determinations, etc.:* Energy Department, 14734 05-5681 Entergy Nuclear Vermont Yankee, LLC, et al., 14734-14735 05-5679 Office Office of Management and Budget See Management and Budget Office Personnel Personnel Management Office NOTICES Agency information collection activities; proposals, submissions, and approvals, 14736 05-5748 Senior Executive Service:

Career positions reserved during 2004; list, 14759-14926 05-5513 Postal Postal Service RULES Practice and procedure: Domestic Mail Manual; redesigned and renamed Mailing Standards of the United States Postal Service, Domestic Mail Manual, 14534-14535 05-5360 Presidential Presidential Documents PROCLAMATIONS *Special observances:* National Poison Prevention Week (Proc. 7875), 14963-14966 05-5898 Public Public Debt Bureau See Fiscal Service SEC Securities and Exchange Commission NOTICES Self-regulatory organizations; proposed rule changes:

Fixed Income Clearing Corp., 14736-14738 E5-1257 National Association of Securities Dealers, Inc., 14739-14742 E5-1255 E5-1256 New York Stock Exchange, Inc., 14742-14743 E5-1254 SBA Small Business Administration RULES Government contracting programs: Service-disabled veteran-owned small business concerns, 14523-14529 05-5466 NOTICES Disaster loan areas: Nevada, 14743-14744 05-5684 Social Social Security Administration PROPOSED RULES Civil monetary penalties, assessments and recommended exclusions, 14603-14607 05-5717 NOTICES Agency information collection activities; proposals, submissions, and approvals, 14744 05-5644 State State Department NOTICES Art objects; importation for exhibition:

Shamans: Spirit Guides of Siberia, 14744-14745 05-5739 Surface Surface Mining Reclamation and Enforcement Office NOTICES Agency information collection activities; proposals, submissions, and approvals, 14712-14713 05-5692 Surface Surface Transportation Board NOTICES Rail carriers: Cost recovery procedures— Adjustment factor, 14752 05-5740 Railroad services abandonment: Mount Vernon Terminal Railway Co., L.L.C., 14752-14753 05-5598 Transportation Transportation Department See Federal Aviation Administration See Federal Motor Carrier Safety Administration See National Highway Traffic Safety Administration See Surface Transportation Board Treasury Treasury Department See Fiscal Service See Internal Revenue Service MISSING FOR:

U.S. Citizenship and Immigration Services U.S. Citizenship and Immigration Services NOTICES Agency information collection activities; proposals, submissions, and approvals, 14706-14708 05-5674 05-5676 Separate Parts In This Issue Part II Personnel Management Office, 14759-14926 05-5513 Part III Transportation Department, Federal Aviation Administration, 14927-14938 05-5578 Part IV Treasury Department, Fiscal Service, 14939-14948 05-5621 Part V Defense Department; General Services Administration;

National Aeronautics and Space Administration, 14949-14961 05-5655 05-5657 Part VI Executive Office of the President, Presidential Documents, 14963-14966 05-5898 Reader Aids Consult the Reader Aids section at the end of this issue for phone numbers, online resources, finding aids, reminders, and notice of recently enacted public laws. To subscribe to the Federal Register Table of Contents LISTSERV electronic mailing list, go to http://listserv.access.gpo.gov and select Online mailing list archives, FEDREGTOC-L, Join or leave the list (or change settings); then follow the instructions. 70 55 Wednesday, March 23, 2005 Rules and Regulations SMALL BUSINESS ADMINISTRATION 13 CFR Part 125 RIN 3245-AF16 Government Contracting Programs AGENCY:

Small Business Administration. ACTION: Final rule. SUMMARY: This final rule amends the interim final regulations governing the Service-Disabled Veteran Owned Small Business Concern (SDVO SBC) Program. In particular, this rule clarifies several regulations, specifically those concerning protest procedures. DATES: This rule is effective March 23, 2005. FOR FURTHER INFORMATION CONTACT: Dean Koppel, Assistant Administrator, Office of Policy and Research,

(202)205-7322 or at *SDVOSBCProgram@sba.gov.* SUPPLEMENTARY INFORMATION: On May 5, 2004, the U.S. Small Business Administration (SBA or Agency) published in the **Federal Register** , 69 FR 25261, an interim final rule, with request for comments, to implement that section of the Veterans Benefits Act of 2003 (VBA), which addressed procurement programs for SBCs owned and controlled by service-disabled veterans. Specifically, the interim final rule defined the term service-disabled veterans, explained when competition may be restricted to SDVO SBCs, and established procedures for protesting the status of an SDVO SBC. Discussion of Comments on the Interim Final Rule The comment period for the interim final rule closed on July 6, 2004. SBA received 45 comments. The majority of the commenters fully supported the regulatory amendments. Twenty-seven of the 45 commenters provided substantive comments. The following is a synopsis of those substantive comments. Section-by-Section Analysis of Comments In the interim final rule, SBA amended § 121.401 by adding the phrase “the Service-Disabled Veteran-Owned Small Business Concern Program (SDVO SBC Program)” to state that the SDVO SBC Program is subject to size determinations. SBA received three comments on this section. The commenters stated that by SBA imposing size restrictions, SDVO SBCs will be excluded from certain industries, especially those industries where few employees or affiliation are needed. Consequently, these commenters believed that agencies will not be able to reach their 3% SDVO SBC goal. In response to these comments, SBA notes that the VBA specifically applies to SBCs. Thus, to be eligible for a SDVO SBC contract, the business concern must meet the small business size standard for the applicable North American Industry Classification System code contained in the contract, in accordance with SBA's size regulations contained in 13 CFR part 121. Therefore, SBA did not adopt this comment and has not amended the rule. SBA received one comment on § 125.6, which added subcontracting limitations for SDVO SBCs so that all subcontracting limitations would be centrally located and easy for SBCs and contracting officials to locate. The commenter stated that SBA should amend the subcontracting rules so that if a SDVO SBC subcontracts work to another company, the amount of the subcontract would be excluded from the total revenues of the SDVO SBC when calculating size. We note that § 121.104 of SBA's size regulations defines the term receipts and does not exclude subcontracting costs from its definition. In fact, SBA includes subcontracting costs as a factor when developing the size standards. Consequently, SBA believes that this comment is outside the scope of this rulemaking and therefore, SBA has not adopted the commenter's recommendation. SBA notes that it has clarified § 125.6 to state that the SDVO SBC joint venture must perform the applicable percentage of work. This same requirement is also set forth in § 125.15(b)(3); however, SBA believes it would be helpful to set forth this requirement in § 125.6 as well. SBA has also clarified the definition of service-disabled veteran with permanent and severe disability in § 125.8 to explain that it is relying on *written* documentation from the U.S. Department of Veterans Affairs

(VA)that the veteran has a service-connected, permanent and total disability, as set forth in the VA's regulations. In addition, SBA has corrected a typographical error in the definition of the term spouse. The definition refers readers to the correct cite—38 U.S.C. 101(31)—for that definition. SBA defined who owns and controls an SDVO SBC in Subpart B, § 125.9 and § 125.10. SBA received two comments on these sections. One commenter stated that SDVO SBCs should be allowed to own and control holding companies for the purpose of program participation. One commenter stated that SBA should allow a surviving spouse to own and control a SDVO SBC following the death of the service-disabled veteran. Further, one commenter stated that all veterans should be considered, not just service-disabled veterans. In response to these comments, SBA notes that the VBA and Small Business Act

(Act)set forth specific criteria for program eligibility. For example, the Act states that in the case of a publicly-owned business, not less than 51% of the stock must be owned by one or more service-disabled veterans. Thus, we believe that the statute expresses a clear intent for direct ownership of the SBC by service-disabled veterans. SBA has created an exception for certain trusts because SBA believes that living trusts may be treated as the functional equivalent of ownership by service-disabled veterans where the trust is revocable, and the service-disabled veterans are, at all times, the grantors, trustees, and the current beneficiaries of the trust. Further, the statute does not provide for ownership by surviving spouses of service-disabled veterans or for ownership by a veteran that is not service-disabled. Therefore, SBA has not amended the interim final rule to allow for ownership by holding companies, surviving spouses or veterans that are not service-disabled. SBA is correcting a typographical error at the heading for Subpart C to change “gurantee” to “guarantee.” SBA received six comments regarding the eligibility requirements set forth in § 125.15, including the joint venture and nonmanufacturer requirements. Four commenters stated that this program should not allow self-representation on a contract and to avoid a firm's misrepresentation as a SDVO SBC, SBA should require proof of status. SBA notes that it did consider proposing a certification program, similar to others administered by the Agency, which would have required proof of eligibility prior to certification on a particular contract. However, SBA did not believe such a certification program was necessary to implement the VBA or was required by the VBA. In addition, SBA believes that allowing other SDVO SBCs to protest the self-representation made on an offer is a self-policing process and will prevent business concerns from misrepresenting their status. This procedure—allowing self-representation on an offer and then a protest on the self-representation—is the same procedure used for small business set-asides, which SBA believes has worked well in the past and continues to work well. With respect to the joint venture requirements set forth in § 125.15, one commenter stated that SBA's established joint venture process is unduly restrictive and recommended that SBA allow SDVO SBCs to participate in joint ventures with small and large businesses. This commenter believed that SBA should increase the number of permitted joint ventures for SDVO SBCs. In response to this comment, SBA notes that the joint venture requirements are similar to those for SBA's other programs, including 8(a) and HUBZone. Further, SBA believes that it would not meet the purpose and intent of the VBA—to assist service-disabled veteran-owned SBCs through government contracting preferences—if such concerns were allowed to joint venture with an other-than-small business and together exceed the size requirements of the contract. In such instances, SBA believes the benefits would likely flow to the large business, and not the SDVO SBC and this does not serve the purpose of the VBA. In addition, with respect to § 125.15(c), one commenter stated that SDVO SBC distributors should be allowed to supply the product of any business, large or small, above and below $25,000. This commenter believes that the nonmanufacturer rule and the waiver process is tedious and onerous for the SBC. First, SBA would like to clarify that waivers to the nonmanufacturers rule are not requested by a SBC as the result of a published Federal requirement. Rather, contracting officers can request a waiver to the rule when:

(1)Market research indicates that no small business manufacturer or processor reasonably can be expected to offer a product meeting the specifications (including period for performance) required by a particular solicitation; or

(2)SBA determines that no small business manufacturer or processor of the product or class of products is available to participate in the Federal procurement market. Section 121.406(b)(3) of SBA's size regulations further defines the guidelines for contracting officers to request a waiver. Waiver requests are processed after the contracting officer conducts market research and prior to the issuance of a Federal requirement by the contracting officer and are not a burden to a SBC. In this way, SBC non-manufacturers can compete in restricted procurements. Second, SBA believes that the nonmanufacturer rule is necessary to maintain the small business industrial base. Further, the rule applies to all of SBA's programs. Thus, SBA has not amended the interim final rule to adopt this comment. SBA received three comments on § 125.18, which addresses what requirements are not available for SDVO SBC contracts. The commenters recommended that only requirements made through the Federal Prison Industries, Inc. and Javits-Wagner-O'Day Programs be excluded from the SDVO SBC Program. The commenters stated that procurements under the 8(a) Business Development

(BD)Program should be released for possible award under the SDVO SBC Program. In response to this comment, SBA notes that this regulation is necessary to ensure the integrity of the business development aspects of the 8(a) BD program. Generally, the requirement will be retained for exclusive 8(a) participation, but may be released by SBA as indicated in the regulation. Thus, SBA has not amended the interim final rule to adopt this comment. Six commenters stated that SBA should change “may” to “shall” in § 125.19 and § 125.20. In other words, these commenters believe that a CO should be required to award set-aside and sole source contracts to SDVO SBCs and the program should therefore be mandatory rather than discretionary. In response, SBA notes that the VBA specifically states that the contracting officer of a procuring agency “may” award a sole source or set-aside contract to a SDVO SBC, if certain conditions are met. Thus, SBA's regulations are following the statutory mandate and therefore the interim final rule has not been changed. Seven commenters recommended changes to the regulations regarding the sole source provisions for SDVO SBCs set forth in 125.20. Two commenters recommended that the $3 million threshold for contract opportunities, other than manufacturing, be clarified to read $3 million annually. SBA cannot make that change. The statute specifically provides that a contracting officer may award a sole source contract to a SDVO SBC if the anticipated award price of the contract (including options) will not exceed $3 million for contract opportunities other than manufacturing. Thus, the $3 million is based upon the contract price, including options, and not the annual cost of the contract. Five commenters stated that SDVO SBC Program sole source procurements should be equivalent to sole source procurements under the 8(a) BD Program. For example, in the 8(a) BD Program, a contracting officer may award a sole source contract to an 8(a) BD SBC even if there is a reasonable expectation that two or more 8(a) SBCs can perform the requirement. In contrast, a contracting officer may only award a sole source SDVO SBC contract if he or she does not have a reasonable expectation that two or more SDVO SBCs will submit offers on the requirements (and other criteria are met). In response to this comment, SBA notes that both sole source requirements, for the 8(a) BD Program and the SDVO SBC Program, are set forth in statute. SBA's regulations follow the statutory mandate for each program and therefore, SBA's regulation regarding SDVO SBC sole source contracts remains unchanged. SBA also received three comments recommending that SDVO SBCs be given a 10% price evaluation preference similar to the SDB or the HUBZone Program. In response to this comment, SBA notes that the SDB and HUBZone price evaluation preferences are statutory mandates. There is no statutory mandate for SDVO SBCs to receive such a price evaluation preference. Therefore, SBA has not amended the regulation to provide for one. Similarly, SBA received three comments recommending that the SDVO SBC Program be given program parity with the other socio-economic programs, in particular, the 8(a) BD Program. SBA notes that in § 125.19, regarding set-asides for SDVO SBCs, it states that contracting officers should consider setting aside the requirement for SDVO SBCs, 8(a) SBCs and HUBZone SBCs before considering setting aside the requirement for SBCs in general. SBA believes that this regulation does provide parity for SDVO SBCs with SBA's other programs, to the extent the VBA and other sections of the Small Business Act, as implemented in the Federal Acquisition Regulations, permits such parity. SBA has amended § 125.25 to clarify, with an example, an insufficient protest allegation. In addition, SBA has amended § 125.25(e), referrals to SBA of protests from the contracting officer. In § 125.25(e), SBA is also requesting the contracting officer inform SBA the date the protested concern submitted its offer and when the protester received notification about the apparent successful offeror. This information is necessary for SBA to determine whether the protest has been submitted on time and the date SBA must look at to determine eligibility. SBA has amended § 125.26 based upon information it has received concerning service-disabled veteran status documents. SBA has learned that as a result of a fire sometime ago, many of these records were destroyed. Thus, the affected veterans would have to contact the U.S. National Archives and Records Administration

(NARA)for documents evidencing their status as a service-disabled veteran. Consequently, SBA has amended § 125.26 to state that a protest must present specific allegations supporting the contention that the owner(s) cannot provide documentation from the VA, U.S. Department of Defense (DoD), or NARA to show that they meet the definition of service-disabled veteran or service-disabled veteran with a permanent and severe disability as set forth in § 125.8. SBA has amended the timeline for which a protested SDVO SBC concern must submit information in response to a protest. According to § 125.27(c)(1), the protested concern was required to submit information responding to the protest within five business days of receipt of the protest. SBA has amended this to state that the protested concern must submit information responding to the protest within ten business days of receipt of the protest. SBA notes that it has done extensive research on veteran records. SBA has learned that it could take a service-disabled veteran up to ten days to receive information from NARA (a repository for official government documents), and perhaps longer from the different services, about their service-disabled veteran status. Thus, SBA has amended § 125.27 to take this into account, despite the fact SBA believes that each SDVO SBC certifying as such for a Federal procurement should have all of the necessary documents prior to making the representation. SBA notes that copies of most military personnel and medical records are on file at the National Personnel Records Center in St Louis, MO; however some military personnel records are maintained by the Military Services depending on when the veteran was discharged. Veterans who filed or are filing a medical claim should contact the VA regional office in their state in order to determine if their medical record and claim for service connected disability is already on file. To request military personnel records, the below contact information is provided: Table 1.—Contact Information To Request Military Personnel Records Branch of service Discharge date Information Address 1. Air Force Discharged or retired since September 25, 1947 Full name, Social Security Number and/or Service Number (both when available), enlistment and discharge dates, date of birth and place of birth (city and state), rank upon discharge or release, address where record is to be mailed, and signature National Personnel Records Center, 9700 Page Avenue, St. Louis, MO 63132-5100,

(314)801-0800, *http://vetrecs.archives.gov.* 2. Army Discharged or retired between November 1, 1912-September 30, 2002 Full name, Social Security Number and/or Service Number (both when available), enlistment and discharge dates, date of birth and place of birth (city and state), rank upon discharge or release, address where record is to be mailed, and signature National Personnel Records Center, 9700 Page Avenue, St. Louis, MO 63132-5100,

(314)801-0800, *http://vetrecs.archives.gov.* Discharged or retired since October 1, 2002 Full name, Social Security Number, enlistment and discharge dates, date of birth and place of birth (city and state), rank upon discharge or release, address where record is to be mailed, and signature U.S. Army Human Resources Command, ATTN: AHRC-PAV-V, 1 Reserve Way, St. Louis, MO 63132-5200,

(314)592-0521. 3. Marine Corps Discharged or retired between 1905-Dec 31, 1998 Full name, Social Security Number and/or Service Number (both when available), enlistment and discharge dates, date of birth and place of birth (city and state), rank upon discharge or release, address where record is to be mailed, and signature National Personnel Records Center, 9700 Page Avenue, St. Louis, MO 63132-5100,

(314)801-0800, *http://vetrecs.archives.gov.* Discharged or retired since 1999 Full name, Social Security Number, date discharged from Marine Corps service, address where record is to be mailed, and signature of member Commandant of the Marine Corps, Headquarters, USMC (MMSB-10), 2008 Elliot Road, Quantico, VA 22134-5030. 4. Navy Discharged or retired between 1885-Dec 31, 1994 Full name, Social Security Number and/or Service Number (both when available), enlistment and discharge dates, date of birth and place of birth (city and state), rank/rate upon discharge or release, address where record is to be mailed, and signature National Personnel Records Center, 9700 Page Avenue, St. Louis, MO 63132-5100,

(314)801-0800, *http://vetrecs.archives.gov.* Discharged or retired since 1995 Full name, Social Security Number, date discharged from Naval service, address where record is to be mailed, and signature of member Navy Personnel Command, PERS-312E, 5720 Integrity Drive, Millington, TN 38055-3120, DSN: 882-4885 or COM: 901-874-4885. All requests for records and information must be in writing. Generally, there is no charge for military personnel and health record information provided to veterans. With respect to records regarding the status of a veteran with a permanent and severe disability, the VA has informed SBA that the veteran can request a document that specifically states that the veteran has a permanent and total disability for purposes of 38 CFR 3.340. SBA has also clarified the stay provisions in § 125.27. In the interim final rule, SBA explained that the CO may award the contract if SBA does not issue its protest determination within the 15-day period required by the regulations. SBA has added a new paragraph

(e)to allow the CO to award the contract after receipt of a protest if the CO determines in writing that an award must be made to protect the public interest. This provision has two purposes. First, it reinforces that the CO should stay the procurement until the protest and appeal process is completed. Second, SBA understands that in certain situations, the CO may be unable to wait until the process is completed. In those cases, the CO must make the determination in writing. In response to one commenter, SBA has also amended §§ 125.27(g) and 125.28 to clarify the effects of a protest or appeal determination. With respect to both a protest and an appeal, if the contract has already been awarded and the protest is sustained, or on appeal the Office of Hearings and Appeals

(OHA)Judge affirms that the SDVO SBC does not meet a status or ownership and control requirement set forth in these regulations, then the procuring agency cannot count the award as an award to a SDVO SBC. If a contract has not yet been awarded and the protest is sustained, or on appeal the OHA Judge affirms that the protested concern does not meet a status or ownership and control requirement set forth in these regulations, then the protested concern is ineligible for an SDVO SBC contract award. There is a statutory basis for this clarification. According to the VBA, sole source and set-aside contracts can only be awarded to SDVO SBCs as defined by statute and as implemented in SBA's regulations. If the concern is not an SDVO SBC, then it is not an award pursuant to the VBA to a SDVO SBC and should not be counted as such. SBA received one comment asking for a clarification of the appeal procedures discussed in part 134. SBA has reviewed the OHA appeal procedures set forth in the interim final rule and agrees that further clarification is necessary. Consequently, SBA has amended the rule to include a separate subpart in 13 CFR part 134 to specifically address appeals of SDVO SBC protests. SBA has issued those changes in a separate rule, however, and has requested further comment on the OHA appeal procedures in that rule. In addition, SBA received several comments on the general nature of the SDVO SBC Program. For example, three commenters recommended that provisions be made for mentor-protégé relationships in the SDVO SBC Program. SBA has reviewed this issue thoroughly and believes that the SDVO SBC Program, unlike the 8(a) BD Program, is not developmental in nature. Rather, it is the result of a recognized need to increase the participation of “established” SDVO SBCs in the Federal marketplace. The first attempt, Public Law 106-50, instituted the 3% goal for SDVO SBCs. When data indicated that the desired results were not being achieved, Public Law 108-183 was enacted. Public Law 108-183 established tools (a restricted competition and sole source authority) for contracting officers to use to reach that segment of the small business population. Although there is no prohibition against SBA establishing an SDVO SBC Mentor-Protégé Program, at this juncture, SBA prefers to wait and see if implementation of the procurement tools in Public Law 108-183 will allow contracting activities to reach their SDVO SBC goals. SBA notes that there is no prohibition for SDVO SBCs, when eligible, to participate in the Mentor-Protégé Programs of other agencies. One commenter recommended that Small Business Innovation and Research

(SBIR)contracts be available under the SDVO SBC Program. SBA notes that the SBIR Program was established by the Small Business Innovation Development Act of 1982, codified at 15 U.S.C. 638. The statutory purpose of the SBIR Program is to strengthen the role of innovative SBCs in Federally-funded research and research and development (R/R&D). The SBIR Program is a phased process, uniform throughout the Federal Government, of soliciting proposals and awarding funding agreements for R/R&D to meet stated agency needs or missions. SBA believes that as a result of the nature and purpose of the program and the way it is structured, it would not be beneficial to allow for set-aside or sole source SBIR awards to a SBC simply because they are a SDVO SBC (or any other type of SBC such as a HUBZone or 8(a) BD concern). However, SBA can request agencies to conduct outreach efforts to find and place innovative SDVO SBCs in the SBIR Program information system and encourage such business concerns to participate in the program. In addition, agencies may count SBIR contract awards to SDVO SBCs towards their small business goals. One commenter stated that the Central Contractor Registration

(CCR)should be more efficient at providing marketing assistance to SDVO SBCs. SBA believes that this comment is outside the scope of this rulemaking and therefore, SBA will take no further action on it. Compliance With Executive Orders 12866, 12988, and 13132, the Paperwork Reduction Act (44 U.S.C. Ch. 35), and the Regulatory Flexibility Act (5 U.S.C. 601-612) SBA has determined that this final rule does not impose additional reporting or recordkeeping requirements under the Paperwork Reduction Act, 44 U.S.C., chapter 35. This action meets applicable standards set forth in §§ 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. This regulation will not have substantial direct effects on the States, on the relationship between the Federal government and the States, or on the distribution of power and responsibilities among the various levels of government. Therefore, for the purposes of Executive Order 13132, SBA determines that this final rule has no federalism implications warranting preparation of a federalism assessment. Because the rule was initially issued as an interim final rule, there was no requirement for SBA to prepare an Initial Regulatory Flexibility Act analysis. Therefore, there is no requirement for SBA to issue a final Regulatory Flexibility Act analysis. However, because OMB has determined that this rule constitutes a “significant regulatory action” under Executive Order 12866, SBA reported a Regulatory Impact Analysis

(RIA)in the interim final rule. The Agency believes that this RIA is still accurate, and accordingly, sets forth a final RIA below. Regulatory Impact Analysis In June 2004, SBA's Office of Advocacy issued a report entitled “Characteristics of Federal Government Procurement Spending with Veteran-Owned Businesses FY2000-FY2003 (3Q),” stating that Agencies have made little use of veteran-owned businesses ( *http://www.sba.gov/advo/research/#procurement* ). As stated in the preamble above, SBA believes there is a significant need for this regulatory action and implementing the changes in this rule would provide considerable benefits, including attracting more SDVO SBCs to the Federal procurement arena and assisting Agencies in achieving the statutorily mandated 3% government-wide goal for procurement from SDVO SBCs. Congress found that agencies were falling far short of reaching this goal. Consequently, the legislative history specifically states that Congress urges SBA and the Office of Federal Procurement Policy to expeditiously and transparently implement the Service-Disabled Veteran-Owned Small Business Concern is program. SBA is implementing this program through regulations because there are no other viable alternatives. SBA cannot accurately determine how many concerns will be competing for SDVO SBC contract awards because there is insufficient data on SDVO SBCs to support a reasonable estimate of the cost or benefit. The Federal Government has only been collecting procurement statistics on veteran-owned businesses since FY 2000. These statistics do not demarcate SDVO SBCs. According to the VA, there were 2.5 million veterans with a service connected disability. ( *See http://www.va.gov/vetdata/demographics/index.htm* ). This does not mean that each of those veterans own a SBC or own a business concern that would qualify for the program. SBA reviewed information contained in DoD's CCR database ( *http://www.ccr.gov* ). Currently, there are 4,825 SDVO SBCs registered in CCR. This represents a small portion, 15.9%, of the 30,434 veteran-owned businesses registered in CCR. Again, it is not known what percentage of the service-disabled veterans based their representation on the “service-connected” disability as defined by 38 U.S.C. 101. SBA also reviewed data from the Federal Procurement Data System ( *http://www.fpds.gov* ). In FY 2001, there were 9,142 contract actions awarded to SDVO SBCs in the amount of $554,167,000. This represented .25% of all Federal contracts awarded. In FY 2002, 7,131 contract actions were awarded to SDVO SBCs in the amount of $298,901,000. This represented .13% of all Federal contracts awarded. SBA believes that the number of contracts awarded to SDVO SBCs will increase as a result of this regulation implementing the VBA. Few contracts were awarded to SDVO SBCs in the Federal or State arena. This number could increase as a result of the implementation of the VBA through this regulation. Although there are over 2 million service-disabled veterans, only a small portion own small businesses. However, it is assumed that the establishment of a sole source and set-aside procurement vehicle for SDVO SBCs will attract more of these entities to the Federal procurement arena. This rule will potentially benefit all SDVO SBCs. However, SBA believes currently eligible SDVO SBCs will benefit immediately since they are ready and able to tender an offer for a Federal procurement. Nonetheless, SBA notes that because of the relatively small percentage of SDVO SBCs (2.4%) registered in the CCR (4,852), as compared to the total number of SBCs (201,742), SBA believes that this rule will not have a major impact on other SBCs in the Federal procurement arena. Federal Government agencies will also benefit from this regulation because they will be able to tap the resources of SDVO SBCs using a sole source or set-aside mechanism and therefore have more opportunities to achieve their SDVO SBC goals, including meeting their Federally-mandated goal to award contracts to SDVO SBCs. SBA estimates that the Federal government will require no additional appropriations for agencies to implement this program. The awards would come from existing appropriated funds and current agency procurement needs and therefore there would be no increase in the cost to the Government. SBA estimates that implementation of this regulation for SDVO SBCs will require no additional proposal costs under this program as compared to submitting proposals under any other small business set-aside program. In addition, SDVO SBCs currently represent their status for purposes of data collecting in small business goaling in accordance with 15 U.S.C. 644(g). List of Subjects in 13 CFR Part 125 Government contracts, Government procurement, Reporting and recordkeeping requirements, Small businesses, Technical assistance. For the reasons set forth in the preamble, amend part 125 of title 13 of the Code of Federal Regulations as follows: PART 125—GOVERNMENT CONTRACTING PROGRAMS 1. The authority citation for 13 CFR part 125 continues to read as follows: Authority: 15 U.S.C. 634(b)(6), 637, 644, and 657f; 31 U.S.C. 9701, 9702. 2. In § 125.6, add a new paragraph (b)(5) to read as follows: § 125.6 Prime contractor performance requirements (limitations on subcontracting).

(b)* * *

(5)In accordance with § 125.15(b)(3), the SDVO SBC joint venture must perform the applicable percentage of work. 3. Amend § 125.8 to revise paragraphs (c),

(d)and

(h)to read as follows: § 125.8 What definitions are important in the Service-Disabled Veteran-Owned

(SDVO)Small Business Concern

(SBC)Program?

(c)*Permanent caregiver* is the spouse, or an individual, 18 years of age or older, who is legally designated, in writing, to undertake responsibility for managing the well-being of the service-disabled veteran with a permanent and severe disability, to include housing, health and safety. A permanent caregiver may, but does not need to, reside in the same household as the service-disabled veteran with a permanent and severe disability. In the case of a service-disabled veteran with a permanent and severe disability lacking legal capacity, the permanent caregiver shall be a parent, guardian, or person having legal custody. There may be no more than one permanent caregiver per service-disabled veteran with a permanent and severe disability.

(d)*Service-Disabled Veteran with a Permanent and Severe Disability* means a veteran with a service-connected disability that has been determined by the VA, in writing, to have a permanent and total service-connected disability as set forth in 38 CFR 3.340 for purposes of receiving disability compensation or a disability pension.

(h)*Spouse* has the meaning given the term in section 101(31) of Title 38, United States Code. 4. Correct the term “gurantee” in the Table of Contents in Subpart C to read “guarantee.” 5. Revise paragraph

(a)introductory text of § 125.15 to read as follows: § 125.15 What requirements must an SDVO SBC meet to submit an offer on a contract?

(a)*Representation of SDVO SBC status.* An SDVO SBC must submit the following representations with its initial offer (which includes price) on a specific contract: 6. Revise paragraphs (a), (b), and

(e)of § 125.25 to read as follows: § 125.25 How does one file a service disabled veteran-owned status protest?

(a)*General.* The protest procedures described in this part are separate from those governing size protests and appeals. All protests relating to whether an eligible SDVO SBC is a “small” business for purposes of any Federal program are subject to part 121 of this chapter and must be filed in accordance with that part. If a protester protests both the size of the SDVO SBC and whether the concern meets the SDVO SBC requirements set forth in § 125.15(a), SBA will process each protest concurrently, under the procedures set forth in part 121 of this chapter and this part. SBA does not review issues concerning the administration of an SDVO contract.

(b)*Format.* Protests must be in writing and must specify all the grounds upon which the protest is based. A protest merely asserting that the protested concern is not an eligible SDVO SBC, without setting forth specific facts or allegations is insufficient. *Example:* A protester submits a protest stating that the awardee's owner is not a service-disabled veteran. The protest does not state any basis for this assertion. The protest allegation is insufficient.

(e)*Referral to SBA.* The contracting officer must forward to SBA any non-premature protest received, notwithstanding whether he or she believes it is sufficiently specific or timely. The contracting officer must send all protests, along with a referral letter, directly to the Associate Administrator for Government Contracting, U.S. Small Business Administration, 409 Third Street, SW., Washington, DC 20416 or by fax to

(202)205-6390, marked Attn: Service-Disabled Veteran Status Protest. The CO's referral letter must include information pertaining to the solicitation that may be necessary for SBA to determine timeliness and standing, including: the solicitation number; the name, address, telephone number and facsimile number of the CO; whether the contract was sole source or set-aside; whether the protester submitted an offer; whether the protested concern was the apparent successful offeror; when the protested concern submitted its offer ( *i.e.* , made the self-representation that it was a SDVO SBC); whether the procurement was conducted using sealed bid or negotiated procedures; the bid opening date, if applicable; when the protest was submitted to the CO; when the protester received notification about the apparent successful offeror, if applicable; and whether a contract has been awarded. 7. Revise § 125.26 to read as follows: § 125.26 What are the grounds for filing an SDVO SBC protest?

(a)*Status.* In cases where the protest is based on service-connected disability, permanent and severe disability, or veteran status, the Associate Administrator for Government Contracting will only consider a protest that presents specific allegations supporting the contention that the owner(s) cannot provide documentation from the VA, DoD, or the U.S. National Archives and Records Administration to show that they meet the definition of service-disabled veteran or service disabled veteran with a permanent and severe disability as set forth in § 125.8.

(b)*Ownership and control.* In cases where the protest is based on ownership and control, the Associate Administrator for Government Contracting will consider a protest only if the protester presents credible evidence that the concern is not 51% owned and controlled by one or more service-disabled veterans. In the case of a veteran with a permanent and severe disability, the protester must present credible evidence that the concern is not controlled by the veteran, spouse or permanent caregiver of such veteran. 8. Revise § 125.27 to read as follows: § 125.27 How will SBA process an SDVO protest?

(a)*Notice of receipt of protest.* Upon receipt of the protest, SBA will notify the contracting officer and the protester of the date SBA received the protest and whether SBA will process the protest or dismiss it under paragraph

(b)of this section.

(b)*Dismissal of protest.* If SBA determines that the protest is premature, untimely, nonspecific, or is based on non-protestable allegations, SBA will dismiss the protest and will send the contracting officer and the protester a notice of dismissal, citing the reason(s) for the dismissal. The dismissal notice must also advise the protester of his/her right to appeal the dismissal to SBA's Office of Hearings and Appeals

(OHA)in accordance with part 134 of this chapter.

(c)*Notice to protested concern.* If SBA determines that the protest is timely, sufficiently specific and is based upon protestable allegations, SBA will:

(1)Notify the protested concern of the protest and of its right to submit information responding to the protest within ten business days from the date of the notice; and

(2)Forward a copy of the protest to the protested concern, with a copy to the contracting officer if one has not already been made available.

(d)*Time period for determination.* SBA will determine the SDVO SBC status of the protested concern within 15 business days after receipt of the protest, or within any extension of that time which the contracting officer may grant SBA. If SBA does not issue its determination within the 15-day period, the contracting officer may award the contract, unless the contracting officer has granted SBA an extension.

(e)*Award of contract.* The CO may award the contract after receipt of a protest if the contracting officer determines in writing that an award must be made to protect the public interest.

(f)*Notification of determination.* SBA will notify the contracting officer, the protester, and the protested concern in writing of its determination.

(g)*Effect of determination.* SBA's determination is effective immediately and is final unless overturned by OHA on appeal. If SBA sustains the protest, and the contract has not yet been awarded, then the protested concern is ineligible for an SDVO SBC contract award. If a contract has already been awarded, and SBA sustains the protest, then the contracting officer cannot count the award as an award to an SDVO SBC and the concern cannot submit another offer as an SDVO SBC on a future SDVO SBC procurement unless it overcomes the reasons for the protest ( *e.g.* , it changes its ownership to satisfy the definition of an SDVO SBC set forth in § 125.8). 9. Revise § 125.28 to read as follows: § 125.28 What are the procedures for appealing an SDVO status protest? The protested concern, the protester, or the contracting officer may file an appeal of an SDVO status protest determination with OHA in accordance with part 134 of this chapter. If the contract has already been awarded and on appeal, the OHA Judge affirms that the SDVO SBC does not meet a status or ownership and control requirement set forth in these regulations, then the procuring agency cannot count the award as an award to a SDVO SBC. In addition, the protested concern cannot self-represent its status for another procurement until it has cured the eligibility issue. If a contract has not yet been awarded and on appeal the OHA Judge affirms that the protested concern does not meet the status or ownership and control requirement set forth in this part, then the protested concern is ineligible for an SDVO SBC contract award. Dated: December 1, 2005. Hector V. Barreto, Administrator. [FR Doc. 05-5466 Filed 3-22-05; 8:45 am]

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