[Federal Register Volume 84, Number 43 (Tuesday, March 5, 2019)]
[Proposed Rules]
[Pages 7861-7864]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2019-03873]


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GENERAL SERVICES ADMINISTRATION

48 CFR Part 6106

[CBCA Case 2019-61-01; Docket No. GSA-GSACBCA-2019-0005; Sequence No. 
1]
RIN 3090-AK07


Civilian Board of Contract Appeals; Rules of Procedure of the 
Civilian Board of Contract Appeals

AGENCY: Civilian Board of Contract Appeals; General Services 
Administration (GSA).

ACTION: Proposed rule.

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SUMMARY: The Civilian Board of Contract Appeals (Board) proposes to 
issue rules of procedure for arbitration of disputes between applicants 
for public assistance grants and the Federal Emergency Management 
Agency (FEMA) regarding disasters after January 1, 2016.

DATES: Interested parties should submit written comments to the 
Regulatory Secretariat Division at one of the addresses shown below on 
or before May 6, 2019 to be considered in the formation of the final 
rule.

ADDRESSES: Submit comments in response to CBCA Case 2019-61-01, by any 
of the following methods:
     Regulations.gov: http://www.regulations.gov. Submit 
comments via the Federal eRulemaking portal by searching for ``CBCA 
Case 2019-61-01.'' Select the link ``Comment Now'' that corresponds 
with ``CBCA Case 2019-61-01.'' Follow the instructions provided on the 
screen. Please include your name, company name (if any), and ``CBCA 
Case 2019-61-01'' on your attached document.
     Mail: Civilian Board of Contract Appeals, Office of the 
Chief Counsel (GA), 1800 M Street NW, Sixth Floor, Washington, DC 
20036.
    Instructions: Please submit comments only and cite CBCA Case 2019-
01, in all correspondence related to this notice. All comments received 
will be posted without change to http://www.regulations.gov, including 
any personal and/or business confidential information provided. To 
confirm receipt of your comment(s), please check http://www.regulations.gov, approximately two to three days after submission 
to verify posting (except

[[Page 7862]]

allow 30 days for posting of comments submitted by mail).

FOR FURTHER INFORMATION CONTACT: Mr. James A. Johnson, Co-Chief 
Counsel, Civilian Board of Contract Appeals, 1800 M Street NW, Suite 
600, Washington, DC 20036; at 202-606-8788; or email at 
[email protected], for clarification of content. For information 
pertaining to the status or publication schedules, contact the 
Regulatory Secretariat Division at 202-501-4755. Please cite CBCA Case 
2019-61-01.

SUPPLEMENTARY INFORMATION:

A. Background

    The Board was established within GSA by section 847 of the National 
Defense Authorization Act for Fiscal Year 2006, Public Law 109-163. 
Board members are administrative judges appointed by the Administrator 
of General Services under 41 U.S.C. 7105(b)(2).
    The Federal Aviation Administration Reauthorization Act of 2018, 
Public Law 115-254, amended the Robert T. Stafford Disaster Relief and 
Emergency Assistance Act (Stafford Act), 42 U.S.C. 5189a(d), to 
authorize the Board to conduct binding arbitration of certain disputes 
between FEMA and applicants for public assistance disaster grants. The 
2018 amendment gives an applicant for public assistance the right to 
have the Board arbitrate eligibility for assistance (or a duty to repay 
past assistance) for a disaster that occurred after January 1, 2016, if 
the applicant has filed an appeal of the issue within FEMA, and either 
the applicant has waited 180 days for a decision or the applicant 
elects arbitration over a second appeal before any decision becomes 
final, and if the disputed amount is at least $100,000 for applicants 
in rural areas or exceeds $500,000 for other applicants.
    FEMA administers Stafford Act public assistance grants under 
regulations at 44 CFR part 206. The Board's arbitration under the 
amended Act of disputes relating to disasters after January 1, 2016 
resembles but is not identical to arbitration the Board has conducted 
since 2009 of disputes about public assistance related to Hurricanes 
Katrina and Rita, which happened in 2005, and Hurricane Gustav, which 
happened in 2008. In the American Recovery and Reinvestment Act of 
2009, Public Law 111-5, and in later legislation (Pub. L. 113-6), 
Congress directed ``the President [to] establish an arbitration panel'' 
for certain Katrina, Rita, and Gustav assistance disputes. FEMA, for 
the President, issued a regulation creating that arbitration process 
(77 FR 44761) and designated the Board the arbitration authority under 
memoranda of agreement.
    By contrast, the 2018 Stafford Act amendment expressly makes the 
Board the arbitrator of the post-January 1, 2016 eligibility and 
repayment disputes specified in the Act. This statutory language 
resembles other legislative grants of authority and jurisdiction to the 
Board, such as the Contract Disputes Act, 41 U.S.C. 7101-7109. 
Accordingly, the Board's rules of procedure proposed here will govern 
arbitrations under the amended Stafford Act, while FEMA's arbitration 
regulation (44 CFR 206.209) still governs the Board's Katrina, Rita, 
and Gustav arbitrations.
    Under the Stafford Act, as amended, the Board acts for the United 
States Government to resolve public assistance eligibility and 
repayment disputes by arbitration. The American Arbitration Association 
defines arbitration as ``the voluntary submission of a dispute to an 
impartial person or persons for final and binding determination.'' 
Arbitration is a speedy and flexible method of dispute resolution. 
Under the Act, an applicant for FEMA public assistance may seek 
arbitration only before obtaining final agency action by FEMA as 
defined by 44 CFR 206.206. An arbitration decision under the proposed 
rules is the final action by the Executive Branch in a dispute.
    FEMA has argued in prior arbitrations at the Board that the 
arbitrators sit in review of FEMA's public assistance grant 
determinations and should apply judicial doctrines of deference. The 
arbitrators have generally rejected that approach, reasoning that 
because an arbitration decision replaces final action by FEMA, the 
arbitrators must find facts and interpret the law independently on 
behalf of the Executive Branch. E.g., Bay St. Louis-Waveland School 
District, CBCA 1739-FEMA (Dec. 8, 2009). The Stafford Act amendment 
reinforces this conclusion by establishing a ``right of arbitration'' 
preceding final agency action and by stating simply that ``the decision 
of the Board shall be binding'' without suggesting that the Board 
should review, sustain, or reverse FEMA's first appeal decision.
    The proposed rules retain the expedited timeline that FEMA's 
arbitration regulation prescribes for Katrina, Rita, and Gustav 
arbitrations. Like the FEMA regulation, the proposed rules provide for 
a hearing within 60 days of an initial conference (Rule 611) and a 
decision within 60 days after a hearing (Rule 613). The Board Chair may 
authorize exceptions in particular cases. The proposed rules eliminate 
or leave to the arbitrators' discretion practices that in the Board's 
experience have delayed or increased the costs of Katrina, Rita, and 
Gustav arbitrations. Under proposed Rule 608, an applicant or grantee 
need not add to the evidence it provided to FEMA for the first appeal. 
If an applicant or grantee does not submit additional evidence, the 
arbitrators may not need FEMA to supplement its first appeal decision. 
The 30-day period under the FEMA regulation for FEMA's response to an 
arbitration request is omitted. The panel will instead schedule any 
filings necessary after the arbitration request in a prompt initial 
conference (Rule 607). Proposed Rule 610 virtually eliminates motion 
practice. Board arbitrators have generally not found it efficient to 
resolve contested jurisdictional or merits motions during proceedings. 
A panel will instead issue one final decision on all pertinent issues 
(other than the timeliness of the arbitration request, which should be 
addressed in the initial conference) based on evidence presented up to 
the end of a hearing (Rule 611). The proposed rules also prescribe 
email filing and service (Rules 604, 605, 609) and clarify that a party 
representative need not be an attorney or be proficient at formally 
examining or cross-examining witnesses (Rules 605, 611).
    Proposed Rule 606 continues the Board's practice of assigning 
three-judge arbitration panels. Under proposed Rules 607 and 611, one 
panel member may conduct conferences and may preside alone at a hearing 
outside Washington, DC, should the parties desire one. The proposed 
rules otherwise echo other extant arbitration rules by encouraging the 
arbitrators and the parties to focus on assembling, by the least costly 
and most efficient means possible, a record that will allow the 
arbitrators to issue a just and reasoned decision at the speedy pace 
that parties expect in arbitration.

B. Regulatory Flexibility Act

    GSA certifies that this proposed rule will not have a significant 
economic impact on a substantial number of small entities within the 
meaning of the Regulatory Flexibility Act, 5 U.S.C. 602 et seq., and 
the Small Business Regulatory Enforcement Fairness Act of 1996, Public 
Law 104-121, because the proposed rule does not impose any additional 
costs on small or large businesses.

C. Paperwork Reduction Act

    The Paperwork Reduction Act, 44 U.S.C. 3501 et seq., does not apply 
because the proposed rule does not impose any information collection

[[Page 7863]]

requirements that require the approval of the Office of Management and 
Budget.

D. Congressional Review Act

    The proposed rule is exempt from Congressional review under Public 
Law 104-121 because it relates solely to agency organization, 
procedure, and practice and does not substantially affect the rights or 
obligations of non-agency parties.

E. Executive Orders 12866 and 13563

    Executive Orders (E.O.s) 12866 and 13563 direct agencies to assess 
all costs and benefits of available regulatory alternatives and, if 
regulation is necessary, to select regulatory approaches that maximize 
net benefits (including potential economic, environmental, public 
health and safety effects, distributive impacts, and equity). E.O. 
13563 emphasizes the importance of quantifying both costs and benefits, 
of reducing costs, of harmonizing rules, and of promoting flexibility. 
This is not a significant regulatory action and, therefore, was not 
subject to review under Section 6(b) of E.O. 12866, Regulatory Planning 
and Review, dated September 30, 1993, or E.O. 13563, Improving 
Regulation and Regulatory Review, dated January 18, 2011. This proposed 
rule is not a major rule under 5 U.S.C. 804.

F. Executive Order 13771

    Executive Order 13771, dated February 3, 2017, sets deregulatory 
goals for agencies and requires the rescission of two regulations for 
each new regulation issued. This proposed rule is not a new regulation, 
but an update to the Board's existing rules of procedure, so Executive 
Order 13771 does not apply.

List of Subjects in 48 CFR Part 6106

    Administrative practice and procedure; Disaster relief.

    Dated: February 27, 2019.
Jeri Somers,
Chair, Civilian Board of Contract Appeals, General Services 
Administration.

0
Therefore, GSA proposes to issue 48 CFR part 6106 to read as follows:

PART 6106--RULES OF PROCEDURE FOR ARBITRATION OF PUBLIC ASSISTANCE 
ELIGIBILITY OR REPAYMENT

Sec.
6106.601 Scope [Rule 601].
6106.602 Authority [Rule 602].
6106.603 Purpose [Rule 603].
6106.604 Arbitration request [Rule 604].
6106.605 Parties; representation; email service [Rule 605].
6106.606 Arbitrators; panels [Rule 606].
6106.607 Initial conference [Rule 607].
6106.608 Evidence; timing [Rule 608].
6106.609 Other materials considered [Rule 609].
6106.610 Motions [Rule 610].
6106.611 Hearing; live or paper [Rule 611].
6106.612 Streamlined procedures [Rule 612].
6106.613 Decision; finality [Rule 613].

    Authority: 42 U.S.C. 5189a(d).


6106.601   Scope [Rule 601].

    The rules in this part establish procedures for arbitration by the 
Board at the request of an applicant for public assistance from the 
Federal Emergency Management Agency (FEMA) for a disaster that occurred 
after January 1, 2016.


6106.602   Authority [Rule 602].

    The Board is authorized by section 423 of the Robert T. Stafford 
Disaster Relief and Emergency Assistance Act (Stafford Act), 42 U.S.C. 
5189a(d), to arbitrate disputes between applicants and FEMA as to 
eligibility for public assistance (or repayment of past public 
assistance) for a disaster post-dating January 1, 2016, when the 
disputed amount exceeds $500,000 or, for an applicant in a rural area, 
is at least $100,000.


6106.603   Purpose [Rule 603].

    Under the Stafford Act, the Board acts for the United States 
Government to resolve public assistance eligibility and repayment 
disputes by arbitration, a speedy and flexible method of impartial 
dispute resolution. Eligibility and repayment disputes come to the 
Board prior to final agency action by FEMA. An arbitration decision 
under these rules is the final action by the Executive Branch in a 
dispute. These rules facilitate the creation of an arbitration record 
sufficient to allow the Board to issue a prompt, just, and reasoned 
decision.


6106.604   Arbitration request [Rule 604].

    An applicant for public assistance may request arbitration by 
following 44 CFR 206.209(e) and applicable FEMA guidance implementing 
section 423 of the Stafford Act. The Board is ``the arbitration 
administrator'' for purposes of 44 CFR 206.209(e) and applicable FEMA 
guidance.
    Applicants shall efile arbitration requests with the Board as 
prescribed by Board Rule 1 (48 CFR 6101.1). Voluminous attachments may 
be filed separately in electronic media as if under Board Rule 4(b)(1) 
and (3) (48 CFR 6101.4(b)(1), (3)). The Clerk of the Board will 
acknowledge an arbitration request by emailing the parties a docketing 
notice.


6106.605   Parties; representation; email service [Rule 605].

    The parties to an arbitration are the applicant, the grantee (if 
not the applicant), and FEMA. Each party shall have one primary 
representative. This person need not be an attorney but must be 
authorized by law, formal delegation, or by permission of the 
arbitrators to speak and act for the party in the arbitration. Unless 
otherwise advised, the Board deems the person who signed the 
arbitration request to be the applicant's primary representative. Any 
other primary representative or other party representative shall 
promptly efile a notice of appearance complying with Board Rule 5(b) 
(48 CFR 6101.5(b)). Unless otherwise directed by the panel, a party 
shall email its efilings to every other party's primary representative 
at the time of filing.


6106.606   Arbitrators; panels [Rule 606].

    The Board assigns three judges as the panel of arbitrators for each 
request. A single arbitrator may act on behalf of a panel under Rules 
607 and 611.


6106.607   Initial conference [Rule 607].

    The panel will hold a telephonic scheduling conference with all 
parties as soon as practicable, ordinarily within 14 calendar days 
after the Clerk dockets an arbitration request. Each primary party 
representative shall participate in the conference. At least one panel 
member will preside. The panel will promptly issue to the parties a 
written summary of the conference and the schedule. A party has 5 
calendar days from receipt of the panel's conference summary to efile 
any objection to it. The panel may hold and summarize other conferences 
as necessary.


6106.608   Evidence; timing [Rule 608].

    No party is required to provide additional evidence. An applicant 
or grantee may, but need not, supplement materials it previously 
provided to FEMA regarding the dispute. The panel ordinarily deems 
FEMA's last written decision preceding the arbitration request to state 
FEMA's position. A party may elect to present additional evidence, 
i.e., documents, things, or testimony tending to make a factual 
contention appear more or less likely to be true. If a party so elects, 
the panel will to the extent practicable allow a response. A panel may 
not exclude as untimely evidence proffered before close of arbitration 
under Rule 613. A panel may consider the timing or surprise nature of 
evidence when

[[Page 7864]]

assessing the significance, credibility, or probative value of the 
evidence.


6106.609   Other materials considered [Rule 609].

    Written or oral arguments or statements of experts as to how a 
panel should understand evidence or apply the law are not evidence but 
may be presented as scheduled by the panel and may be subject to page, 
word, or time limits. By the close of arbitration under Rule 613, 
parties should provide the panel with everything it needs to make a 
decision. Documents written by a party for the panel during arbitration 
shall comply with Board Rules 1(b) (``Efiles; efiling''), 7, and 23 (48 
CFR 6101.1(b), -.7, -.23).


6106.610   Motions [Rule 610].

    Motions are strictly limited and should ordinarily be made orally 
during the initial conference under Rule 607. A later motion may be 
efiled. A party may make a procedural motion, such as to extend time. 
An applicant may move for voluntary dismissal. No party may move for a 
prehearing merits decision (e.g., summary judgment or dismissal for 
failure to state a claim), or for prehearing dismissal other than on 
the merits except on the grounds that an arbitration request is 
untimely. A panel ordinarily issues one decision per arbitration.


6106.611   Hearing; live or paper [Rule 611].

    Parties may conclude arbitration by presenting their positions in a 
hearing. A hearing may be live or, if agreed by all parties, on a 
written record (a ``paper hearing'') or a combination of the two. The 
panel will begin a hearing within 60 calendar days after the initial 
conference under Rule 607 unless the Board Chair approves a later date. 
All panel members will attend a live hearing in Washington, DC. A 
single panel member may conduct a live hearing elsewhere. Hearing 
procedures are at the panel's discretion, with the goal of promptly, 
justly, and finally resolving the dispute, and need not involve 
traditional witness examination or cross-examination. Parties should 
not offer fact witnesses to read legal materials or make legal 
arguments. Statements of fact in a hearing need not be sworn but are 
subject to penalty for violation of 18 U.S.C. 1001. Live hearings are 
not public and may not be recorded by any means without the Board's 
permission. The Board may have a live hearing transcribed for the 
panel's use. If a transcript is made, a party may purchase a copy and 
has 7 calendar days after a copy is available to efile proposed 
corrections.


6106.612   Streamlined procedures [Rule 612].

    The Stafford Act provides a right of arbitration to save time and 
money that might otherwise be spent in the FEMA appeal process and in 
court. To that end, the Board encourages parties to focus on providing 
only the information a panel needs to resolve an eligibility or 
repayment dispute. Examples may include without limitation--
    (a) Electing not to supplement the materials already provided to 
FEMA, if (or to the extent) the existing record adequately frames the 
dispute;
    (b) Relying when possible on documents over other types of 
evidence;
    (c) Simplifying live hearings by efiling in advance written 
testimony, reports, or opening statements by some witnesses or party 
representatives;
    (d) Refraining from objecting to evidence without good cause; and
    (e) Omitting duplicative and immaterial evidence and arguments.


6106.613   Decision; finality [Rule 613].

    The panel will advise the parties when the arbitration is closed. 
The panel will resolve a dispute within 60 calendar days thereafter 
unless the panel advises the parties that the Board Chair approves a 
later date. The panel's decision may be issued in writing or orally 
with transcription. A decision is primarily for the parties, is not 
precedential, and should concisely resolve the dispute. The decision of 
a panel majority is the final administrative action on the arbitrated 
dispute and is judicially reviewable only to the limited extent 
provided by the Federal Arbitration Act (9 U.S.C. 10). Within 30 
calendar days after issuing a decision, a panel may correct clerical, 
typographical, technical, or arithmetic errors. A panel may not 
reconsider the merits of its decision resolving an eligibility or 
repayment dispute.

[FR Doc. 2019-03873 Filed 3-4-19; 8:45 am]
BILLING CODE 6820-AL-P