[Federal Register Volume 84, Number 120 (Friday, June 21, 2019)]
[Rules and Regulations]
[Pages 29085-29088]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2019-13081]


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GENERAL SERVICES ADMINISTRATION

48 CFR Part 6106

[CBCA Case 2019-61-01; Docket No. GSA-GSABCA-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: Final rule.

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SUMMARY: The Civilian Board of Contract Appeals (Board) amends its 
rules of procedure to include arbitration of disputes between 
applicants for public assistance grants and the Federal Emergency 
Management Agency (FEMA) regarding disasters after January 1, 2016. The 
Board is promulgating a final regulation after considering the one set 
of comments received on the proposed rules.

DATE: Effective July 22, 2019.

FOR FURTHER INFORMATION CONTACT: Mr. James 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 
on 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 FAA 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 arbitrate certain disputes between 
FEMA and applicants for public assistance disaster grants.
    The Board published in the Federal Register at 84 FR 7861, March 5, 
2019, proposed rules of procedure for such arbitration. The notice 
invited comments on the proposed rules and announced the Board's 
intention to promulgate final rules after reviewing and considering 
comments.
    The comment period closed on May 6, 2019. The Board received one 
set of comments. The Board has considered those comments and revised 
the proposed rules as explained in part B below. The Board now 
promulgates final rules of procedure. These rules facilitate the 
efficient assembly of a record that will allow each arbitration panel 
to issue a just and reasoned decision resolving the dispute before it 
at the speedy pace that parties expect in arbitration.

B. Comments and Changes

    FEMA was the only commenter. FEMA suggested specific changes to 
five proposed rules (Rules 603, 604, 606, 608, and 612). The Board 
addresses the comments as follows.
    Comment: In proposed Rule 603, FEMA suggested replacing the words 
``final agency action'' with ``final agency determination'' and adding 
the words ``on an applicant's eligibility for public assistance'' to 
the end of the rule after the word ``decision.''
    Response: The Board does not adopt these suggestions. ``Agency 
action'' is a term of art for an administrative decision that is 
reviewable in court under the Administrative Procedure Act, 5 U.S.C. 
702. The statement in Rule 603 that covered disputes ``come to the 
Board prior to final agency action'' is correct regardless of the 
terminology that FEMA may use for such actions. Adding words to the end 
of the rule also would not enhance clarity, as the first sentence 
already specifies ``public assistance eligibility and repayment 
disputes'' as the subject matter of arbitration.
    Comment: In proposed Rule 604, FEMA suggested incorporating 
``nearly all of the content of 44 CFR 206.209(e)-(m),'' FEMA's 
regulation for arbitration of public assistance disputes involving 
Hurricanes Katrina and Rita, excluding paragraphs (e)(2) and (h)(3) of 
the FEMA regulation. FEMA identified no

[[Page 29086]]

substantive conflicts (as distinct from wording differences) between 
proposed Rule 604 and FEMA's Katrina/Rita arbitration regulation. FEMA 
noted that the proposed rules omit ``a time to file an arbitration 
request.''
    Response: The proposed rules are already substantially consistent 
with FEMA's regulation, which states, ``The arbitration will be 
conducted pursuant to procedure established by the arbitration panel.'' 
44 CFR 206.209(c). As the designated arbitrator under 42 U.S.C. 
5189a(d) of certain disputes regarding disasters after January 1, 2016, 
the Board is now adopting uniform panel procedures.
    The omission of a time to file an arbitration request is 
intentional. The amended Stafford Act states that to request 
arbitration, an applicant for relief ``shall submit the dispute to the 
arbitration process established'' by FEMA for Katrina and Rita 
disputes. 42 U.S.C. 5189a(d)(5). The Board interprets the statutory 
term ``process'' to mean the steps established by FEMA for submitting a 
dispute to arbitration, including the timing and content of an 
arbitration request. The proposed rule thus defers to FEMA's current 
and future published guidance on those processing matters. After 
submittal, consistent with ``the arbitration process'' to which the Act 
refers, ``[t]he arbitration will be conducted pursuant to procedure 
established by the arbitration panel.'' 44 CFR 206.209(c). The Act does 
not direct the Board to use arbitration procedures directly from FEMA's 
Katrina/Rita regulation.
    The Board has carefully and independently considered the content of 
44 CFR 206.209 in response to FEMA's comment. The Board agrees that its 
procedural rules should address the timing of a response by FEMA to an 
arbitration request, and ex parte contacts. The Board adds sentences to 
Rules 608 and 609 that track the substance of 44 CFR 206.209(e)(4) and 
(j). The Board also adds language to Rule 606 to clarify that the 
parties do not pay the Board for arbitration services.
    Comment: To proposed Rule 606, FEMA proposed adding, ``For each 
request, a decision under Rule 613 will be issued by the panel.''
    Response: The Board agrees that this sentence clarifies its intent, 
and includes it, slightly altered, in Rule 606.
    Comment: In proposed Rule 608, FEMA objected to the statement that 
a panel will receive a response to new evidence ``to the extent 
practicable.'' FEMA argued that it should ``always'' be entitled to 
file a response.
    Response: The language at issue is important because the Stafford 
Act directs arbitrators to ``consider from the applicant'' (not from 
FEMA) supporting evidence submitted ``at any time during arbitration.'' 
42 U.S.C. 5189a(d)(2). Panels cannot necessarily obtain responses to 
all new evidence, up to and including the last day of arbitration. That 
is why the last sentence of Rule 608 warns that a panel may discount 
the ``significance, weight, or probative value'' of delayed or surprise 
evidence. As noted above, the final rule sets a time for FEMA's 
response to an arbitration request. The Board retains the limiting 
phrase ``to the extent practicable'' in Rule 608 for responses to 
later-offered evidence. Panels will decide practicability case by case.
    Comment: In Rule 612, FEMA suggested deleting the first sentence, 
regarding statutory intent.
    Response: The Board agrees and removes this sentence from Rule 612, 
adding the words ``of streamlining'' to the second sentence for 
clarity.
    The final regulation includes changes discussed above as well as 
minor, non-substantive corrections of the proposed rules. The 
corrections are as follows.
    In Rule 604, a citation to 44 CFR 206.209(e) is deleted from the 
first sentence, and the second sentence is deleted, as unnecessary. In 
Rule 605, the second ``by'' is deleted from the third sentence as 
unnecessary. In the sixth sentence of Rule 608, ``before the close of 
arbitration'' is shortened to ``before arbitration closes.'' In the 
fourth sentence of Rule 610, a comma is deleted and the word 
``involuntary'' is inserted before ``prehearing'' for clarity. In the 
seventh and eighth sentences of Rule 611, the word ``to'' is inserted 
in ``or [to] make,'' and ``made'' is inserted before ``subject to.''

C. Regulatory Flexibility Act

    GSA certifies that this final 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 final rule does not impose any additional 
costs on small or large businesses.

D. Paperwork Reduction Act

    The Paperwork Reduction Act, 44 U.S.C. 3501 et seq., does not apply 
because this final rule does not impose any information collection 
requirements that require the approval of the Office of Management and 
Budget.

E. Congressional Review Act

    The final 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.

F. 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 final 
rule is not a major rule under 5 U.S.C. 804.

G. Executive Order 13771

    This final rule is not an E.O. 13771 regulatory action because this 
rule is not significant under E.O. 12866.

List of Subjects in 48 CFR Part 6106

    Administrative practice and procedure; Disaster relief.

    Dated: June 14, 2019.
Jeri Kaylene Somers,
Chair, Civilian Board of Contract Appeals, General Services 
Administration.


0
Therefore, GSA adds 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; costs [Rule 606].
6106.607 Initial conference [Rule 607].
6106.608 Evidence; timing [Rule 608].
6106.609 Other materials considered; ex parte communications [Rule 
609].
6106.610 Motions [Rule 610].
6106.611 Hearing; live or paper [Rule 611].
6106.612 Streamlined procedures [Rule 612].

[[Page 29087]]

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].

    (a) An applicant for public assistance may request arbitration by 
following applicable FEMA guidance implementing section 423 of the 
Stafford Act.
    (b) 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) and (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 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; costs [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. A full panel issues any decision under Rule 613. The Board 
arbitrates at no cost to the parties, who bear their own costs of 
participation.


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. 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. FEMA shall efile its response to an arbitration request 
within 30 calendar days after receiving the docketing notice. A panel 
may not exclude as untimely evidence proffered before arbitration 
closes under Rule 613. A panel may consider the timing or surprise 
nature of evidence when assessing the significance, credibility, or 
probative value of the evidence.


6106.609   Other materials considered; ex parte communications [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), 6101.7, and 6101.23). No member of a panel or of the 
Board's staff will communicate with a party about any material issue in 
arbitration outside of the presence of the other party or parties, and 
no one shall attempt such communications on behalf of a party.


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 involuntary 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 to make legal 
arguments. Statements of fact in a hearing need not be sworn but are 
made 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.

[[Page 29088]]

6106.612   Streamlined procedures [Rule 612].

    The Board encourages parties to focus on providing only the 
information a panel needs to resolve an eligibility or repayment 
dispute. Examples of streamlining 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. 2019-13081 Filed 6-20-19; 8:45 am]
BILLING CODE 6820-AL-P