[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
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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]
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