Civilian Board of Contract Appeals; Rules of Procedure of the Civilian Board of Contract Appeals, 7861-7864 [2019-03873]
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Federal Register / Vol. 84, No. 43 / Tuesday, March 5, 2019 / Proposed Rules
for stationary sources located in the
District that emit 25 tpy or more of NOX
or VOC.
EPA has determined that the
provisions under 20 DCMR § 500.9
satisfy the requirements of CAA section
182(a)(3)(B) for the 2008 ozone NAAQS.
As previously mentioned, these
provisions were previously SIPapproved as 20 DCMR § 500.7.
Therefore, EPA is proposing to approve,
as a SIP revision, the District’s May 25,
2018 emissions statements certification
for the 2008 ozone NAAQS as
approvable under CAA section
182(a)(3)(B).
III. Proposed Action
EPA is proposing to approve as a SIP
revision, the District’s December 12,
2018 SIP revision updating the District’s
SIP to correctly cite the current DCMR
numbering of previously-approved SIP
measures. EPA is also proposing to
approve as a SIP revision, the District’s
May 25, 2018 emissions statements
certification for the 2008 ozone NAAQS
as approvable under CAA section
182(a)(3)(B). EPA is soliciting public
comment on the issues discussed in this
document. These comments will be
considered before taking final action.
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IV. Incorporation by Reference
In this document, EPA is proposing to
include in a final EPA rule regulatory
text that includes incorporation by
reference. In accordance with
requirements of 1 CFR 51.5, EPA is
proposing to incorporate by reference
the current edition of the provisions
under 20 DCMR §§ 500.4–500.9. EPA
has made, and will continue to make,
these materials generally available
through https://www.regulations.gov and
at the EPA Region III Office (please
contact the person identified in the FOR
FURTHER INFORMATION CONTACT section of
this preamble for more information).
V. Statutory and Executive Order
Reviews
Under the CAA, the Administrator is
required to approve a SIP submission
that complies with the provisions of the
CAA and applicable Federal regulations.
42 U.S.C. 7410(k); 40 CFR 52.02(a).
Thus, in reviewing SIP submissions,
EPA’s role is to approve state choices,
provided that they meet the criteria of
the CAA. Accordingly, this action
merely approves state law as meeting
Federal requirements and does not
impose additional requirements beyond
those imposed by state law. For that
reason, this proposed action:
• Is not a ‘‘significant regulatory
action’’ subject to review by the Office
of Management and Budget under
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Executive Orders 12866 (58 FR 51735,
October 4, 1993) and 13563 (76 FR 3821,
January 21, 2011);
• Is not an Executive Order 13771 (82
FR 9339, February 2, 2017) regulatory
action because SIP approvals are
exempted under Executive Order 12866.
• Does not impose an information
collection burden under the provisions
of the Paperwork Reduction Act (44
U.S.C. 3501 et seq.);
• Is certified as not having a
significant economic impact on a
substantial number of small entities
under the Regulatory Flexibility Act (5
U.S.C. 601 et seq.);
• Does not contain any unfunded
mandate or significantly or uniquely
affect small governments, as described
in the Unfunded Mandates Reform Act
of 1995 (Pub. L. 104–4);
• Does not have federalism
implications as specified in Executive
Order 13132 (64 FR 43255, August 10,
1999);
• Is not an economically significant
regulatory action based on health or
safety risks subject to Executive Order
13045 (62 FR 19885, April 23, 1997);
• Is not a significant regulatory action
subject to Executive Order 13211 (66 FR
28355, May 22, 2001);
• Is not subject to requirements of
Section 12(d) of the National
Technology Transfer and Advancement
Act of 1995 (15 U.S.C. 272 note) because
application of those requirements would
be inconsistent with the CAA; and
• Does not provide EPA with the
discretionary authority to address, as
appropriate, disproportionate human
health or environmental effects, using
practicable and legally permissible
methods, under Executive Order 12898
(59 FR 7629, February 16, 1994).
In addition, this proposed rulemaking
action to approve the District’s
emissions statements certification for
the 2008 ozone NAAQS does not have
tribal implications as specified by
Executive Order 13175 (65 FR 67249,
November 9, 2000), because the SIP is
not approved to apply in Indian country
located in the state, and EPA notes that
it will not impose substantial direct
costs on tribal governments or preempt
tribal law.
List of Subjects in 40 CFR Part 52
Environmental protection, Air
pollution control, Incorporation by
reference, Intergovernmental relations,
Nitrogen dioxide, Ozone, Reporting and
recordkeeping requirements, Volatile
organic compounds.
Authority: 42 U.S.C. 7401 et seq.
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7861
Dated: February 21, 2019.
Cecil Rodrigues,
Acting Regional Administrator, Region III.
[FR Doc. 2019–03941 Filed 3–4–19; 8:45 am]
BILLING CODE 6560–50–P
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
Civilian Board of Contract
Appeals; General Services
Administration (GSA).
ACTION: Proposed rule.
AGENCY:
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: https://
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 https://
www.regulations.gov, including any
personal and/or business confidential
information provided. To confirm
receipt of your comment(s), please
check https://www.regulations.gov,
approximately two to three days after
submission to verify posting (except
SUMMARY:
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Federal Register / Vol. 84, No. 43 / Tuesday, March 5, 2019 / Proposed Rules
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 jamesa.johnson@
cbca.gov, 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:
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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
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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
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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 nonagency 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.
Therefore, GSA proposes to issue 48
CFR part 6106 to read as follows:
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PART 6106—RULES OF PROCEDURE
FOR ARBITRATION OF PUBLIC
ASSISTANCE ELIGIBILITY OR
REPAYMENT
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Arbitrators; panels [Rule 606].
Initial conference [Rule 607].
Evidence; timing [Rule 608].
Other materials considered [Rule
Motions [Rule 610].
Hearing; live or paper [Rule 611].
Streamlined procedures [Rule
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
■
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
6106.607
6106.608
6106.609
609].
6106.610
6106.611
6106.612
612].
6106.613
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
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7863
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
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assessing the significance, credibility, or
probative value of the evidence.
6106.609
609].
Other materials considered [Rule
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.
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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.
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6106.612
612].
Streamlined procedures [Rule
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
DEPARTMENT OF COMMERCE
National Oceanic and Atmospheric
Administration
50 CFR Part 622
[Docket No. 190213109–9109–01]
RIN 0648–BI63
Temporary Rule To Establish
Management Measures for Red
Grouper in the Gulf of Mexico
National Marine Fisheries
Service (NMFS), National Oceanic and
AGENCY:
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Atmospheric Administration (NOAA),
Commerce.
ACTION: Proposed temporary rule;
emergency action.
NMFS proposes to issue an
emergency rule as requested by the Gulf
of Mexico Fishery Management Council
(Council) to address concerns regarding
the Gulf of Mexico (Gulf) red grouper
stock. The Council made this request
after receiving new information that
indicates the stock may be in decline.
This proposed emergency rule would
reduce the commercial and recreational
annual catch limits (ACLs) and annual
catch targets (ACTs). This emergency
rule would be effective for 180 days,
although NMFS may extend the
emergency rule’s effectiveness for a
maximum of an additional 186 days.
The intended effect of this emergency
rule is to provide a temporary rapid
reduction in Gulf red grouper harvest
levels to protect the stock from
overharvest while the Council develops
permanent rulemaking.
DATES: Written comments must be
received by March 20, 2019.
ADDRESSES: You may submit comments
on the proposed emergency rule,
identified by ‘‘NOAA–NMFS–2018–
0142,’’ by either of the following
methods:
• Electronic submission: Submit all
electronic public comments via the
Federal e-Rulemaking Portal: https://
www.regulations.gov. Go to
www.regulations.gov/
#!docketDetail;D=NOAA-NMFS-20180142 click the ‘‘Comment Now!’’ icon,
complete the required fields, and enter
or attach your comments.
• Mail: Submit written comments to
Peter Hood, NMFS Southeast Regional
Office, 263 13th Avenue South, St.
Petersburg, FL 33701.
Instructions: Comments sent by any
other method, to any other address or
individual, or received after the end of
the comment period, may not be
considered by NMFS. All comments
received are a part of the public record
and will generally be posted for public
viewing on www.regulations.gov
without change. All personal identifying
information (e.g., name, address, etc.),
confidential business information, or
otherwise sensitive information
submitted voluntarily by the sender will
be publicly accessible. NMFS will
accept anonymous comments (enter ‘‘N/
A’’ in required fields if you wish to
remain anonymous).
Electronic copies of the documents in
support of this emergency rule, which
include an environmental assessment,
may be obtained from the Southeast
SUMMARY:
E:\FR\FM\05MRP1.SGM
05MRP1
]]>Agencies
[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: https://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 https://www.regulations.gov, including
any personal and/or business confidential information provided. To
confirm receipt of your comment(s), please check https://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
jamesa.johnson@cbca.gov, 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
