Civilian Board of Contract Appeals; Rules of Procedure of the Civilian Board of Contract Appeals, 29085-29088 [2019-13081]
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Federal Register / Vol. 84, No. 120 / Friday, June 21, 2019 / Rules and Regulations
by a system of records, FCC/WTB–1,
‘‘Wireless Services Licensing Records,’’
and these and all other records may be
disclosed pursuant to the Routine Uses
as stated in this system of records
notice.
Privacy Act: No impact(s).
Needs and Uses: On October 22, 2018,
the Commission released a Report and
Order and Order in WP Docket No. 15–
32, RM–11572, WP Docket No. 16–261,
RM–11719 and RM–11722WP Docket
No. 15–32 which adds new rule
§ 90.621(d)(4) to the Commission’s
rules. The new rule section requires
applicants seeking to license newly
available 12.5 kHz bandwidth
interstitial channels in the 809–817
MHz/854–862 MHz segment of the 800
MHz band (800 MHz Mid-Band) to
include a letter of concurrence from an
incumbent licensee if the applicant files
an application which causes contour
overlap under a forward analysis or
receives contour overlap under a
reciprocal analysis when the applicant
seeks to license channels in the 800
MHz Mid-Band. In the case of the
forward analysis, the incumbent
licensee must agree in its concurrence
letter to accept any interference that
occurs as a result of the contour overlap.
In the case of the reciprocal analysis, the
incumbent licensee must state in its
concurrence letter that it does not object
to the applicant receiving contour
overlap from the incumbent’s facility.
The purpose of requiring applicants to
obtain letters of concurrence if their
application causes contour overlap
under a forward analysis or receives
contour overlap under a reciprocal
analysis is to ensure incumbents in the
800 MHz Mid-Band are aware of the
contour overlap before an application is
granted.
List of Subjects in 47 CFR Part 90
Administrative practice and
procedure, Business and industry, Civil
defense, Common carriers,
Communications equipment, Emergency
medical services, Individuals with
disabilities, Radio, Reporting and
recordkeeping requirements.
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Federal Communications Commission.
Katura Jackson,
Federal Register Liaison Officer.
PART 90—PRIVATE LAND MOBILE
RADIO SERVICES
1. The authority citation for part 90
continues to read as follows.
■
Authority: 47 U.S.C. 154(i), 161, 303(g),
303(r), 332(c)(7), 1401–1473.
§ 90.175
[Amended]
2. Amend § 90.175 by removing
paragraph (k).
■
§ 90.621
[Amended]
3. Amend § 90.621 by removing
paragraph (d)(5).
■
[FR Doc. 2019–12984 Filed 6–20–19; 8:45 am]
BILLING CODE 6712–01–P
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
Civilian Board of Contract
Appeals; General Services
Administration (GSA).
ACTION: Final rule.
AGENCY:
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 jamesa.johnson@
cbca.gov, 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:
SUMMARY:
Final Rules
A. Background
For the reasons discussed in the
preamble, the Federal Communications
Commission amends 47 CFR part 90 as
follows.
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
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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
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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.
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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, nonsubstantive 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.
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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 nonagency 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.
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].
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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.
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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.
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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
606].
Arbitrators; panels; costs [Rule
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
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29087
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.
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6106.612
612].
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Streamlined procedures [Rule
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
DEPARTMENT OF COMMERCE
National Oceanic and Atmospheric
Administration
50 CFR Part 635
[Docket No. 120627194–3657–02]
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RIN 0648–XT002
Atlantic Highly Migratory Species;
North Atlantic Swordfish Fishery
National Marine Fisheries
Service (NMFS), National Oceanic and
Atmospheric Administration (NOAA),
Commerce.
ACTION: Temporary rule.
AGENCY:
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NMFS is adjusting the
Swordfish General Commercial permit
retention limits for the Northwest
Atlantic, Gulf of Mexico, and U.S.
Caribbean regions for July through
December of the 2019 fishing year,
unless otherwise later noticed. The
Swordfish General Commercial permit
retention limits in each of these regions
are increased from the regulatory default
limits (either two or three fish) to six
swordfish per vessel per trip. The
Swordfish General Commercial permit
retention limit in the Florida Swordfish
Management Area will remain
unchanged at the default limit of zero
swordfish per vessel per trip, as
discussed in more detail below. These
adjustments apply to Swordfish General
Commercial permitted vessels and to
Highly Migratory Species (HMS)
Charter/Headboat permitted vessels
with a commercial endorsement when
on a non-for-hire trip. This action is
based upon consideration of the
applicable inseason regional retention
limit adjustment criteria.
SUMMARY:
The adjusted Swordfish General
Commercial permit retention limits in
the Northwest Atlantic, Gulf of Mexico,
and U.S. Caribbean regions are effective
from July 1, 2019, through December 31,
2019.
DATES:
Rick
Pearson or Randy Blankinship, 727–
824–5399.
FOR FURTHER INFORMATION CONTACT:
SUPPLEMENTARY INFORMATION:
Regulations implemented under the
authority of the Atlantic Tunas
Convention Act (ATCA; 16 U.S.C. 971 et
seq.) and the Magnuson-Stevens Fishery
Conservation and Management Act
(Magnuson-Stevens Act; 16 U.S.C. 1801
et seq.) governing the harvest of North
Atlantic swordfish by persons and
vessels subject to U.S. jurisdiction are
found at 50 CFR part 635. Section
635.27 subdivides the U.S. North
Atlantic swordfish quota recommended
by the International Commission for the
Conservation of Atlantic Tunas (ICCAT)
and implemented by the United States
into two equal semi-annual directed
fishery quotas; an annual incidental
catch quota for fishermen targeting other
species or catching swordfish
recreationally, and a reserve category,
according to the allocations established
in the 2006 Consolidated Atlantic
Highly Migratory Species Fishery
Management Plan (2006 Consolidated
Atlantic HMS FMP) (71 FR 58058,
October 2, 2006), as amended, and in
accordance with implementing
regulations. NMFS is required under
ATCA and the Magnuson-Stevens Act to
provide U.S. fishing vessels with a
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reasonable opportunity to harvest the
ICCAT-recommended quota.
In 2017, ICCAT Recommendation 17–
02 specified that the overall North
Atlantic swordfish total allowable catch
(TAC) be set at 9,925 metric tons (mt)
dressed weight (dw) (13,200 mt whole
weight (ww)) through 2021. Consistent
with scientific advice, this was a
reduction of 500 mt ww (375.9 mt dw)
from previous ICCAT-recommended
TACs. However, the United States’
baseline quota remained at 2,937.6 mt
dw (3,907 mt ww) per year. The
Recommendation (17–02) also
continued to limit underharvest
carryover to 15 percent of a contracting
party’s baseline quota. Thus, the United
States may carry over a maximum of
440.6 mt dw (586.0 mt ww) of
underharvest. Absent adjustments, the
codified baseline quota is 2,937.6 mt dw
for 2019. At this time, given the extent
of underharvest in 2018, NMFS
anticipates carrying over the maximum
allowable 15 percent (440.6 mt dw),
which would result in a final adjusted
North Atlantic swordfish quota for the
2019 fishing year equal to 3,378.2 mt dw
(2,937.6 + 440.6 = 3,378.2 mt dw). As in
past years we anticipate allocating 50 mt
dw from the adjusted quota to the
Reserve category for inseason
adjustments/research and allocating 300
mt dw to the Incidental category, which
includes recreational landings and
landings by incidental swordfish permit
holders, consistent with
§ 635.27(c)(1)(i)(D) and (B). This would
result in an adjusted quota of 3,028.2 mt
dw for the directed fishery, which
would be split equally (1,514.1 mt dw)
between the two semi-annual periods in
2019 (January through June, and July
through December).
Adjustment of Swordfish General
Commercial Permit Vessel Retention
Limits
The 2019 North Atlantic swordfish
fishing year, which is managed on a
calendar-year basis and divided into
two equal semi-annual quotas for the
directed fishery, began on January 1,
2019. Landings attributable to the
Swordfish General Commercial permit
count against the applicable semiannual directed fishery quota. Regional
default retention limits for this permit
have been established and are
automatically effective from January 1
through December 31 each year, unless
changed based on the inseason regional
retention limit adjustment criteria at
§ 635.24(b)(4)(iv). The default retention
limits established for the Swordfish
General Commercial permit are: (1)
Northwest Atlantic region—three
swordfish per vessel per trip; (2) Gulf of
E:\FR\FM\21JNR1.SGM
21JNR1
Agencies
[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.
-----------------------------------------------------------------------
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