Federal Register / Vol. 83, No. 160 / Friday, August 17, 2018 / Rules and Regulations 41009 

NEGATIVE DECLARATIONS FOR THE 2008 OZONE NAAQS—Continued 

CTG document No. Title 

EPA–453/R–94–032 ........................................................... Alternative Control Technology Document—Surface Coating Operations at Shipbuilding and Ship Repair Facilities 

61 FR 44050 8/27/96 ......................................................... Control Techniques Guidelines for Shipbuilding and Ship Repair Operations (Surface 

Coating). 

* * * * * 

[FR Doc. 2018–17714 Filed 8–16–18; 8:45 am] 

BILLING CODE 6560–50–P 

GENERAL SERVICES 

ADMINISTRATION 

48 CFR Parts 6101 and 6102 

[CBCA Case 2018–61–1; Docket No. 2018– 

0006; Sequence No. 1] 

RIN 3090–AK02 

Civilian Board of Contract Appeals; 

Rules of Procedure for Contract 

Disputes Act Cases 

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 for cases arising 

under the Contract Disputes Act, and for 

disputes between insurance companies 

and the Department of Agriculture’s 

Risk Management Agency in which 

decisions of the Federal Crop Insurance 

Corporation are brought before the 

Board under the Federal Crop Insurance 

Act. The Board’s current rules were 

issued in 2008 and were last amended 

in 2011. After considering the one 

responsive comment received, the Board 

now promulgates its final rules of 

procedure. 

DATES: September 17, 2018. 

FOR FURTHER INFORMATION CONTACT: Mr. 

J. Gregory Parks, Chief Counsel, Civilian 

Board of Contract Appeals, 1800 M 

Street NW, Suite 600, Washington, DC 

20036; at 202–606–8787; or email at 

greg.parks@cbca.gov, for clarification of 

content. For information pertaining to 

the status or publication schedules, 

contact the Regulatory Secretariat at 

202–501–4755. Please cite BCA Case 

2018–61–1. 

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). Among its other functions, 

the Board hears and decides contract 

disputes between Government 

contractors and most civilian Executive 

agencies under the Contract Disputes 

Act, 41 U.S.C. 7101–7109, and its 

implementing regulations, and disputes 

pursuant to the Federal Crop Insurance 

Act, 7 U.S.C. 1501 et seq., between 

insurance companies and the 

Department of Agriculture’s Risk 

Management Agency (RMA) involving 

actions of the Federal Crop Insurance 

Corporation (FCIC). 

The Board’s rules of procedure for 

Contract Disputes Act cases and Federal 

Crop Insurance Act cases were adopted 

in May 2008 (73 FR 26947) and were 

last amended in August 2011 (76 FR 

50926). The Board published in the 

Federal Register at 83 FR 13211, March 

28, 2018, proposed, amended rules of 

procedure along with a notice inviting 

comments on those rules. This notice 

announced the intention to promulgate 

final rules, following the Board’s review 

and consideration of all comments. 

The period for comments closed on 

May 29, 2018. The Board has considered 

all comments received, revising the 

proposed rules, in part, as explained in 

part B below, and now promulgates its 

final rules of procedure. These rules 

simplify and modernize access to the 

Board by establishing a preference for 

electronic filing, increase conformity 

between the Board’s rules and the 

Federal Rules of Civil Procedure, 

streamline the wording of the Board’s 

rules, and clarify current rules and 

practices. In addition, the time for filing 

is amended from 4:30 p.m. to midnight 

Eastern Time, and the stated monetary 

limitations for electing the accelerated 

and small claims procedures are deleted 

and replaced with references to the 

requirements stated in the Contract 

Disputes Act. 

B. Comments and Changes 

The Board received comments from 

two commenters. Commenters included 

one attorney from a Federal agency and 

one anonymous source. Comments from 

the anonymous source concerned 

matters wholly unrelated to the 

proposed rule, and the concerns noted 

by the attorney were already addressed 

in the proposed rule. The Board 

carefully considered the comments but 

has not revised its proposed rule based 

on issues the commenters raised. The 

final rule incorporates minor, nonsubstantive corrections to the proposed 

rule. The corrections are addressed 

below. 

Part 6101 

Sections 6101.1, 6101.3, 6101.4, 

6101.12, and 6101.23 are amended to 

correct spelling, grammatical, or spacing 

errors; include a cross-reference; and 

clarify a phrase. 

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 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 


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41010 Federal Register / Vol. 83, No. 160 / Friday, August 17, 2018 / Rules and Regulations 

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 Parts 6101 

and 6102 

Administrative practice and 

procedure; Government procurement; 

Agriculture. 

Dated: August 6, 2018. 

Jeri Kaylene Somers, 

Chair, Civilian Board of Contract Appeals, 

General Services Administration. 

Therefore, GSA revises 48 CFR parts 

6101 and 6102 to read as follows: 

PART 6101—RULES OF PROCEDURE 

OF THE CIVILIAN BOARD OF 

CONTRACT APPEALS 

Sec. 

6101.1 General information; definitions 

[Rule 1]. 

6101.2 Filing appeals, petitions, and 

applications; consolidation [Rule 2]. 

6101.3 Computing and extending time 

[Rule 3]. 

6101.4 Appeal file [Rule 4]. 

6101.5 Appearing; notice of appearance 

[Rule 5]. 

6101.6 Pleadings; amending pleadings 

[Rule 6]. 

6101.7 Service of documents [Rule 7]. 

6101.8 Motions [Rule 8]. 

6101.9 Record; content and access [Rule 9]. 

6101.10 Admissibility of evidence [Rule 

10]. 

6101.11 Conferences [Rule 11]. 

6101.12 Stays and dismissals [Rule 12]. 

6101.13 Discovery generally [Rule 13]. 

6101.14 Interrogatories; requests for 

production; requests for admission [Rule 

14]. 

6101.15 Depositions [Rule 15]. 

6101.16 Subpoenas [Rule 16]. 

6101.17 Exhibits [Rule 17]. 

6101.18 Election of hearing or record 

submission [Rule 18]. 

6101.19 Record submission without a 

hearing [Rule 19]. 

6101.20 Scheduling hearings [Rule 20]. 

6101.21 Hearing procedures [Rule 21]. 

6101.22 Transcripts [Rule 22]. 

6101.23 Briefs [Rule 23]. 

6101.24 Closing the record [Rule 24]. 

6101.25 Decisions and settlements [Rule 

25]. 

6101.26 Reconsideration [Rule 26]. 

6101.27 Relief from decision or order [Rule 

27]. 

6101.28 Full Board consideration [Rule 

28]. 

6101.29 Clerical mistakes; harmless error 

[Rule 29]. 

6101.30 Award of fees and other expenses 

[Rule 30]. 

6101.31 Payment of award [Rule 31]. 

6101.32 Appeal from Board decision [Rule 

32]. 

6101.33 Remand from appellate Court 

[Rule 33]. 

6101.34 Ex parte communications [Rule 

34]. 

6101.35 Standards of conduct; sanctions 

[Rule 35]. 

6101.36 Board seal [Rule 36]. 

6101.37–6101.50 [Reserved]. 

6101.51 Alternative procedures [Rule 51]. 

6101.52 Small claims procedure [Rule 52]. 

6101.53 Accelerated procedure [Rule 53]. 

6101.54 Alternative dispute resolution 

[Rule 54]. 

Authority: 41 U.S.C. 7101–7109. 

6101.1 General information; definitions 

[Rule 1]. 

(a) Scope. The rules of this chapter 

govern cases filed with the Board on or 

after September 17, 2018, and all further 

proceedings in cases then pending, 

unless the Board decides that using the 

rules in this part in a case pending on 

their effective date would be inequitable 

or infeasible. The Board may alter these 

procedures on its own initiative or on 

request of a party to promote the just, 

informal, expeditious, and inexpensive 

resolution of a case. 

(b) Definitions. 

Appeal; appellant. ‘‘Appeal’’ means a 

contract dispute filed with the Board 

under the Contract Disputes Act (CDA), 

41 U.S.C. 7101–7109, or under a 

disputes clause in a non-CDA contract 

that allows for Board review. An 

‘‘appellant’’ is the contractor filing an 

appeal. 

Appeal file. ‘‘Appeal file’’ means the 

submissions to the Board under Rule 4 

(48 CFR 6101.4). 

Application; applicant. ‘‘Application’’ 

means a submission to the Board under 

Rule 30 (48 CFR 6101.30) of a request 

for an award of fees and other expenses 

under the Equal Access to Justice Act 

(EAJA), 5 U.S.C. 504, or another 

provision authorizing such an award. 

An ‘‘applicant’’ is a party filing an 

application. 

Attorney. ‘‘Attorney’’ means a person 

licensed to practice law in a State, 

commonwealth, or territory of the 

United States or in the District of 

Columbia. 

Board judge; judge. ‘‘Board judge’’ or 

‘‘judge’’ means a member of the Board. 

Business days and hours. The Board’s 

business days are days other than 

Saturdays, Sundays, Federal holidays, 

days on which the Board is required to 

close before 4:30 p.m., or days on which 

the Board does not open for any reason, 

such as inclement weather. The Board’s 

business hours are 8 a.m. to 4:30 p.m. 

Eastern Time. 

Case. ‘‘Case’’ means an appeal, 

petition, or application. 

Clerk of the Board. The ‘‘Clerk’’ of the 

Board receives filings, dockets cases, 

and prepares official correspondence for 

the Board. 

Efile; efiling. The Clerk accepts 

electronic filings (‘‘efilings’’), meaning 

documents submitted through the 

Board’s email system (‘‘efiled’’). Parties 

may efile documents by sending an 

email (usually with attachments) to 

cbca.efile@cbca.gov, except for 

documents that are classified or 

submitted in camera or under protective 

order (Rule 9). Efiling occurs upon 

receipt by the Board’s email server, 

except that attachments must be in .pdf 

format and 18 megabytes (MB) or 

smaller or they will be rejected. 

Electronically stored information. 

‘‘Electronically stored information’’ 

means information created, 

manipulated, communicated, stored, 

and best used in digital form with 

computer hardware and software. 

Equal Access to Justice Act (EAJA), 5 

U.S.C. 504. This statute governs 

applications for awards of fees and other 

expenses in certain cases. 

Facsimile (fax) transmissions. The 

Board sends and accepts facsimile 

transmissions. A document is filed by 

fax at the time the Board receives all of 

it. The Board does not automatically 

extend filing deadlines if its fax 

machine is busy or otherwise 

unavailable. 

Filing. A notice of appeal or 

application is filed upon the earlier of 

its receipt by the Clerk or, if mailed 

through the United States Postal Service 

(USPS), the date it is mailed to the 

Board. A USPS postmark is prima facie 

evidence of a mailing date. Any other 

document is filed upon receipt by the 

Clerk. 

Party. ‘‘Party’’ means an appellant, 

applicant, petitioner, or respondent. 

Petition; petitioner. ‘‘Petition’’ means 

a request that the Board direct a 

contracting officer to issue a written 

decision on a claim. A ‘‘petitioner’’ is a 

party submitting a petition. 

Receipt. The Board deems a party’s 

‘‘receipt’’ of a document to occur upon 

the earlier of the emailing of the 

document to the party’s email address of 

record (without notice of delivery 

failure) or the party’s possession of a 

document sent by other means. 

Respondent. A ‘‘respondent’’ is the 

government agency whose decision, 


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Federal Register / Vol. 83, No. 160 / Friday, August 17, 2018 / Rules and Regulations 41011 

action, or inaction is the subject of an 

appeal, petition, or application. 

(c) Construction. The Board construes 

this part to promote the just, informal, 

expeditious, and inexpensive resolution 

of every case. The Board may apply 

principles of the Federal Rules of Civil 

Procedure (28 U.S.C. App.) to resolve 

issues not covered by this part. 

(d) Panels. The Board assigns each 

case to a panel of three judges, one of 

whom presides. The presiding judge 

sets the case schedule, oversees 

discovery, and conducts conferences, 

hearings, and other proceedings. The 

presiding judge may without 

participation by other panel members 

decide any appeal under the small 

claims procedure of Rule 52, any 

nondispositive motion, or any petition, 

and may dismiss a case as permitted by 

Rule 12(c) (48 CFR 6101.12(c)). The 

Board decides all other matters by 

majority vote of a panel unless the full 

Board decides a matter under Rule 28 

(48 CFR 6101.28). Only panel and full 

Board decisions are precedential. 

(e) Location and addresses. The Board 

is physically located at 1800 M Street 

NW, 6th Floor, Washington, DC 20036. 

The mailing address is 1800 F Street 

NW, Washington, DC 20405. The Clerk’s 

telephone number is (202) 606–8800. 

The Clerk’s fax number is (202) 606– 

0019. The Clerk’s email address for 

efiling is cbca.efile@cbca.gov. The 

Board’s website is http://www.cbca.gov. 

(f) Clerk’s office hours. The Clerk’s 

office is open to the public and for 

physical deliveries during business 

hours (Rule 1(b) (48 CFR 6101.1(b)). 

Efilings received after midnight are 

considered filed the next business day. 

The Clerk’s office is closed when the 

Board’s physical address is closed for 

any reason, including any closure of the 

Federal Government in the Washington, 

DC, metropolitan area. 

6101.2 Filing appeals, petitions, and 

applications; consolidation [Rule 2]. 

(a) Filing an appeal. A notice of 

appeal shall be in writing; signed by the 

appellant, the appellant’s attorney, or an 

authorized representative (see Rule 5 

(48 CFR 6101.5)); and filed with the 

Board, with a copy to the contracting 

officer who received or issued the claim, 

or the successor contracting officer. A 

notice of appeal should include: 

(1) The name, telephone number, and 

mailing and email addresses of the 

appellant and/or its attorney or 

authorized representative; 

(2) The contract number; 

(3) The name of the contracting officer 

who received or issued the claim, with 

that person’s telephone number, mailing 

address, and email address; 

(4) A copy of the claim with any 

certification; and 

(5) A copy of the contracting officer’s 

decision on the claim or a statement that 

the appeal is from a failure to issue a 

decision (‘‘a deemed denial’’). 

(b) Filing a petition. A petition shall 

be in writing; signed by the petitioner, 

the petitioner’s attorney, or an 

authorized representative (see Rule 5 

(48 CFR 6101.5)); and filed with the 

Board, with a copy to the contracting 

officer who received the claim, or the 

successor contracting officer. A petition 

shall ask the Board to order the 

contracting officer to issue a decision 

and should include: 

(1) The name, telephone number, and 

mailing and email addresses of the 

petitioner and/or its attorney or 

authorized representative; 

(2) The contract number; 

(3) The name of the contracting officer 

who received the claim, with that 

person’s telephone number, mailing 

address, and email address; and 

(4) A copy of the claim with any 

certification. 

(c) Filing an EAJA application. See 

Rule 30 (48 CFR 6101.30). 

(d) Time limits. (1) Under the CDA, a 

notice of appeal must be filed within 90 

calendar days after the date of receipt of 

a contracting officer’s decision on a 

claim. 

(2) Alternatively, under the CDA, a 

contractor may appeal when a 

contracting officer has not issued a 

decision on a claim within the time 

allowed by the CDA or the time set by 

a tribunal acting on a petition. 

(3) Under the CDA, a petition may be 

filed in the period between— 

(i) Receipt of notice from a contracting 

officer, within 60 days after the 

submission of a claim, that the 

contracting officer intends to issue a 

decision on the claim more than 60 days 

after its submission, and 

(ii) The due date stated by the 

contracting officer. 

(4) Under EAJA, an application must 

be filed within 30 days after the date 

that the decision in the underlying 

appeal becomes no longer subject to 

appeal. 

(e) Notice of docketing. Upon receipt 

of a notice of appeal, a petition, or an 

application, the Clerk issues a written 

notice of docketing to all parties. 

(f) Consolidation. The Board may 

consolidate cases wholly or in part if 

they involve common questions of law 

or fact. 

6101.3 Computing and extending time 

[Rule 3]. 

(a) Computing time. Consistent with 

Rule 6 of the Federal Rules of Civil 

Procedure: In computing any time 

period, omit the day of the event from 

which the period begins to run. Omit 

nonbusiness days only if the period is 

less than 11 days; otherwise include 

them. A period ends on a business day. 

If a computed period would otherwise 

end on a nonbusiness day, it ends on 

the next business day. 

(b) Extensions. Parties should act 

sooner than required whenever 

practicable. However, the Board extends 

time when appropriate. A motion for an 

extension shall be in writing and shall 

state the other party’s position on the 

motion or describe the movant’s effort to 

learn the other party’s position. The 

Board cannot extend statutory 

deadlines. 

6101.4 Appeal file [Rule 4]. 

(a) Filing. Within 30 days after 

receiving the Board’s docketing notice, 

the respondent shall file and serve all 

documents relevant to the appeal, 

including: 

(1) The contracting officer’s decision 

on the claim; 

(2) The contract, including all 

pertinent specifications, amendments, 

plans, drawings, and incorporated 

proposals or parts thereof; 

(3) All correspondence between the 

parties relevant to the appeal; 

(4) The claim with any certification; 

(5) Relevant affidavits, witness 

statements, or transcripts of testimony 

taken before the appeal; 

(6) All documents relied on by the 

contracting officer to decide the claim; 

and 

(7) Relevant internal memoranda, 

reports, and notes. 

(b) Organization of electronic appeal 

file. (1) Unless otherwise ordered, 

parties shall file the appeal file and 

supplements thereto in an electronic 

storage medium (e.g., hard disk or solid 

state drive, compact disc (CD), or digital 

versatile disc (DVD)), labeled with the 

docket number, case name, and range of 

exhibit numbers. 

(2) A party may efile an appeal file or 

a supplement thereto by permission of 

the Board. 

(3) Appeal file exhibits shall be in 

.pdf format or will be rejected. The 

appeal file index and each exhibit shall 

be separate documents, without 

embedded documents. 

(4) Appeal file exhibits shall be 

complete, legible, arranged in 

chronological order, numbered, and 

indexed. Parties shall avoid filing 

duplicative exhibits and shall number 

exhibits continuously and consecutively 

from one filing to the next, so that a 

complete appeal file consists of one set 

of consecutively numbered exhibits. 


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41012 Federal Register / Vol. 83, No. 160 / Friday, August 17, 2018 / Rules and Regulations 

(5) Parties shall number the pages of 

each exhibit consecutively, unless an 

exhibit is already paginated in another 

logical manner. 

(6) The appeal file index shall 

describe each exhibit by date and 

content. 

(7) Parties may file documents in 

camera only by permission of the Board. 

(c) Organization of paper appeal file. 

(1) Appeal files and supplements 

thereto may be filed on paper only by 

permission of the Board. 

(2) Appeal file exhibits shall be 

complete, legible, arranged in 

chronological order, tabbed, and 

indexed. Parties shall avoid filing 

duplicative exhibits and shall number 

exhibits continuously and consecutively 

from one filing to the next, so a 

complete appeal file consists of one set 

of consecutively tabbed exhibits. 

(3) Parties shall number the pages of 

each paper exhibit consecutively, unless 

an exhibit is already paginated in 

another logical manner. 

(4) Parties shall file exhibits in 3-ring 

binders with spines no wider than 3 

inches, labeled on the cover and spine 

with the name of the appeal, CBCA 

number, and tab numbers in each 

binder. Include in each binder the index 

of the entire filing. 

(5) The appeal file index shall 

describe each exhibit by date and 

content. 

(6) Parties shall separately file and 

index documents submitted in camera 

or under a protective order. However, 

documents may be submitted in camera 

only by permission of the Board. 

(d) Supplements. Within 30 days after 

the respondent files the appeal file, the 

appellant may file non-duplicative 

documents relevant to the claim, 

organized as instructed in Rule 4(b) or 

(c) (paragraph (b) or (c) of this section), 

starting with the next available exhibit 

number. 

(e) Classified or protected material. 

Neither classified nor protected material 

may be efiled. 

(f) Submission by order. The Board 

may order a party to supplement the 

appeal file, including by filing an 

exhibit in another format. 

(g) Status of exhibits. The Board 

considers appeal file exhibits part of the 

record for decision under Rule 9(a) 

unless a party objects to an exhibit 

within the time set by the Board and the 

Board sustains the objection. 

(h) Other procedures. The Board may 

postpone or waive the filing of an 

appeal file. 

6101.5 Appearing; notice of appearance 

[Rule 5]. 

(a) Appearing before the Board—(1) 

Appellant; petitioner; applicant. An 

appellant, petitioner, or applicant may 

appear before the Board through an 

attorney. An individual appellant, 

petitioner, or applicant may appear for 

himself or herself. A corporation, trust, 

or association may appear by one of its 

officers. A limited liability corporation, 

partnership, or joint venture may appear 

by one of its members. Each individual 

appearing on behalf of an appellant, 

petitioner, or applicant must have legal 

authority to appear. 

(2) Respondent. A respondent may 

appear before the Board through an 

attorney or, if allowed by the agency, by 

the contracting officer or the contracting 

officer’s authorized representative. 

(3) Others. The Board may permit a 

special or limited appearance of or for 

a nonparty, such as an amicus curiae. 

(b) Notice of appearance. The Board 

deems the person who signed a notice 

of appeal, petition, or application to 

have appeared for the appellant, 

petitioner, or applicant. The Board 

deems the head of the respondent’s 

litigation office to have appeared for the 

respondent unless otherwise notified. 

Other participating attorneys shall file 

notices of appearance including all of 

the information required by the sample 

notice of appearance posted on the 

Board’s website. Attorneys representing 

parties before the Board shall list their 

bar numbers or other identifying data 

for each State bar to which they are 

admitted. 

(c) Withdrawal of appearance. 

Anyone who has filed a notice of 

appearance and wishes to withdraw 

from a case must file a motion 

identifying by name, telephone number, 

mailing address, and email address the 

person who will assume responsibility 

for representing the party in question. 

The motion must state grounds for 

withdrawal, unless the motion 

represents that the party in question 

will meet the existing case schedule. 

6101.6 Pleadings; amending pleadings 

[Rule 6]. 

(a) Complaint. Within 30 days after 

receiving the notice of docketing, the 

appellant shall file a complaint stating 

in simple, concise, and direct terms the 

factual basis for each claim and the 

amount in controversy. Alternatively, 

the appellant or the Board may 

designate as a complaint the notice of 

appeal, a claim submission, or any other 

document containing the information 

required in a complaint. The Board may 

in its discretion order a respondent 

asserting a claim to file a complaint. 

(b) Answer. Within 30 days after 

receiving the complaint or a designation 

of a complaint, the respondent (or the 

appellant, if so ordered) shall file an 

answer stating in simple, concise, and 

direct terms its responses to the 

allegations of the complaint and any 

affirmative defenses it chooses to assert. 

(c) Amendments. A party may amend 

a pleading once, before a responsive 

pleading is filed, with permission of the 

other party. Amending a pleading 

restarts the time to respond, if any. The 

Board may allow a party to amend a 

pleading in other circumstances. 

(d) Motion in lieu of answer. The 

Board may allow a party to file a 

dispositive motion or to move for a 

more definite statement in lieu of filing 

an answer. 

6101.7 Service of documents [Rule 7]. 

A party filing any document not 

submitted in camera (see Rule 9(c)(2) 

(48 CFR 6101.9(c)(2)) shall send a copy 

to the other party by a method at least 

as fast as the filing method. The filing 

party shall indicate the method and 

address of service, otherwise the Board 

may consider a document not served 

and not properly filed. 

6101.8 Motions [Rule 8]. 

(a) Generally. A party may make a 

motion for a Board action orally on the 

record in the presence of the other party 

or in a written filing. A written motion 

shall be a document titled as a motion 

and shall state the relief sought and the 

legal basis (see Rule 23(b) (48 CFR 

6101.23(b)). Except for joint or 

dispositive motions, all motions shall 

represent that the movant tried to 

resolve the motion with the other party 

before filing. The Board may hold oral 

argument on a motion. 

(b) Jurisdictional motions. A party 

challenging the Board’s jurisdiction 

should file such a motion promptly. 

(c) Procedural motions. A party may 

move for an extension of time (Rule 3(b) 

(48 CFR 6101.3(b)). The Board may in 

its discretion consider motions on other 

procedural matters. A procedural 

motion shall state the other party’s 

position on the motion or describe the 

movant’s effort to learn the other party’s 

position. 

(d) Discovery motions. See Rule 13(e) 

(48 CFR 6101.13(e)). 

(e) Motions to dismiss for failure to 

state a claim. A party may move to 

dismiss all or part of a claim for failure 

to state grounds on which the Board 

could grant relief. In deciding such 

motions, the Board looks to Rule 

12(b)(6) of the Federal Rules of Civil 

Procedure for guidance. 

(f) Summary judgment motions. A 

party may move for summary judgment 

on all or part of a claim or defense if the 

party believes in good faith it is entitled 

to judgment as a matter of law based on 


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Federal Register / Vol. 83, No. 160 / Friday, August 17, 2018 / Rules and Regulations 41013 

undisputed material facts. In deciding 

motions for summary judgment, the 

Board looks to Rule 56 of the Federal 

Rules of Civil Procedure for guidance. 

(1) Statement of undisputed material 

facts. The movant shall file with its 

summary judgment motion a separate 

document titled, ‘‘Statement of 

Undisputed Material Facts.’’ This 

document shall set forth facts 

supporting the motion in separate, 

numbered paragraphs, citing appeal file 

exhibits, admissions in pleadings, and/ 

or evidence filed with the motion. 

(2) Statement of genuine issues. The 

opposing party shall file with its 

opposition a separate document titled, 

‘‘Statement of Genuine Issues.’’ This 

document shall respond to specific 

paragraphs of the movant’s Statement of 

Undisputed Material Facts by 

identifying material facts in genuine 

dispute, citing appeal file exhibits, 

admissions in pleadings, and/or 

evidence filed with the opposition. 

(g) Briefing. A party may file a brief 

in opposition to a motion under Rule 

26, Rule 27, Rule 28, or Rule 29 (48 CFR 

6101.26, 6101.27, 6101.28, or 6101.29) 

only by permission of the Board. Unless 

otherwise ordered, a brief in opposition 

to any other nonprocedural motion is 

due 30 days after receipt of the motion, 

and a movant’s reply brief is due 15 

days after receipt of an opposition brief. 

A nonmovant may file a surreply only 

by permission of the Board. Unless 

otherwise ordered, a brief in opposition 

to a procedural motion is due 5 days 

after receipt of the motion, and there 

shall be no reply. 

(h) Effect of pending motion. Unless 

otherwise stated in this part, the filing 

of a motion does not affect a party’s 

obligations under the Board’s rules or 

orders. 

6101.9 Record; content and access 

[Rule 9]. 

(a) Record for decision. The record on 

which the Board will decide a case 

includes the following: 

(1) Evidence. Evidence in a case 

includes: 

(i) Rule 4 (48 CFR 6101.4) appeal file 

exhibits other than those to which an 

objection is sustained; 

(ii) Other documents or parts thereof 

admitted as evidence; 

(iii) Tangible things admitted as 

evidence; 

(iv) Transcripts or recordings of 

testimony before the Board; and 

(v) Factual stipulations and factual 

admissions. 

(2) Other material. The Board may 

also rely on to decide a case: 

(i) The notice of appeal, petition, or 

application; 

(ii) The complaint, answer, and 

amendments thereto; 

(iii) Motions and briefs on motions; 

(iv) Other briefs; 

(v) Demonstrative hearing exhibits; 

and 

(vi) Anything else the Board may 

expressly admit or take notice of. 

(b) Other contents of case file. The 

Board’s administrative record may be 

broader than the record for decision. 

Material in the Board’s case file that is 

not listed in Rule 9(a) (48 CFR 

6101.9(a)) is part of the administrative 

record but is not part of the record for 

decision. 

(c) Enlarging or reopening the record. 

The Board may enlarge or reopen the 

record for decision on terms fair to the 

parties. 

(d) Protected and in camera 

submissions. The Board may limit 

access to specified material in a record 

for decision. 

(1) Protective orders. The Board may 

limit access to specified material in a 

record for decision if the Board finds 

good cause to treat the material as 

privileged, confidential, or otherwise 

sensitive. 

(2) In camera submissions. The Board 

may allow a party to submit a document 

solely for the Board’s review in camera 

if: 

(i) The party submits the document to 

explain a discovery dispute; 

(ii) The Board denies a motion for 

protective order, and the movant asks 

that the record include a document that 

the party would have used in the case 

with a protective order, for possible 

later review of the Board’s denial; or 

(iii) Good cause exists to find that in 

camera review may limit or prevent 

needless harm to a party, witness, or 

other person. 

(3) Status in record. A document 

submitted and accepted under a 

protective order or in camera is part of 

the record for decision. If the Board’s 

decision is judicially reviewed, the 

Board will endeavor to preserve the 

protected or in camera nature of the 

document to the extent consistent with 

judicial review. 

(e) Review and copying. The Clerk 

makes records for decision, except 

evidence submitted under a protective 

order or in camera, available for review 

on reasonable notice during business 

hours, and provides copies of such 

available documents for a reasonable 

fee. The Clerk will not relinquish 

possession of material in the Board’s 

files. 

6101.10 Admissibility of evidence 

[Rule 10]. 

The Board may in its discretion 

receive any evidence to which no party 

objects. In ruling on evidentiary 

objections, the Board is guided but not 

bound by the Federal Rules of Evidence, 

except that the Board generally admits 

hearsay unless the Board finds it 

unreliable. 

6101.11 Conferences [Rule 11]. 

The Board may order a conference of 

the parties for any purpose. Conferences 

are usually telephonic and are rarely 

recorded or transcribed. No one may 

record a conference by any means 

without Board approval. If the Board 

issues a memorandum or order 

memorializing a conference, a party has 

5 days from receipt of the memorandum 

or order to object in writing to the 

memorialization. 

6101.12 Stays and dismissals [Rule 12]. 

(a) Stays. The Board may stay a case 

for a specific duration, or until a 

specific event, for good cause. 

(b) Dismissals—(1) Generally. The 

Board may dismiss a case or part of a 

case either on motion of a party or after 

permitting a response to an order to 

show cause. Dismissal is with prejudice 

unless a Board order or other applicable 

law provides otherwise. 

(2) Voluntary dismissal. Subject to 

Rule 12(b)(3) (paragraph (b)(3) of this 

section), the Board will dismiss all or 

part of a case on the terms requested if 

the appellant, petitioner, or applicant 

moves for dismissal with prejudice or 

moves jointly with the respondent for 

dismissal with or without prejudice. 

(3) For lack of jurisdiction. If the 

Board finds that it lacks jurisdiction to 

decide all or part of a case, the Board 

will dismiss the case or the part of the 

case, regardless of the parties’ positions 

on jurisdiction or dismissal. 

(4) For failure to prosecute. The Board 

may dismiss all or part of a case for 

failure to prosecute. 

(c) Dismissal orders and decisions. 

The presiding judge acting alone may 

stay a case or grant voluntary dismissal 

with or without prejudice. A panel or 

the full Board may dismiss a case on 

other grounds. 

(d) Admonition. Dismissal of a party’s 

case without prejudice does not 

necessarily mean that the party may 

later refile the case at the Board or in 

another forum under the jurisdictional 

and procedural laws applicable to the 

case. 

6101.13 Discovery generally [Rule 13]. 

(a) Methods. Parties may obtain 

discovery by depositions, 

interrogatories, requests for production, 

and requests for admission. 

(b) Scope. Unless otherwise ordered, 

the scope of discovery is the same as 


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under Rule 26(b)(1) of the Federal Rules 

of Civil Procedure. 

(c) Limits. The Board may limit the 

frequency or extent of discovery for a 

reason stated in Rule 26(b)(2) of the 

Federal Rules of Civil Procedure. 

(d) Timing. The Board encourages 

parties to agree on a discovery plan that 

the Board may adopt in a scheduling 

order. The Board may modify an agreed 

discovery plan. 

(e) Disputes—(1) Objections. A party 

objecting to a written discovery request 

must make the objection in writing no 

later than the date that its response to 

the discovery request is due. 

(2) Duty to cooperate. Parties shall try 

in good faith to resolve objections to 

discovery requests without involving 

the Board. The Board may impose an 

appropriate sanction under Rule 35 (48 

CFR 6101.35) on a party that does not 

meet its discovery obligations. 

(3) Motions to compel. A party may 

move to compel a response or a 

supplemental response to a discovery 

request. The movant shall attach to its 

motion a copy of each discovery request 

and response at issue, and shall 

represent in the motion that the movant 

complied with Rule 13(e)(2) (paragraph 

(e)(2) of this section). 

(f) Subpoenas. A party may request a 

subpoena under Rule 16 (48 CFR 

6101.16). 

6101.14 Interrogatories; requests for 

production; requests for admission 

[Rule 14]. 

(a) Generally. Interrogatories, requests 

for production, requests for admission, 

and responses thereto shall be in writing 

and served on the other party. 

(b) Interrogatories. Interrogatories 

shall be answered or objected to 

separately in writing, under signed oath, 

within 30 days of service. A party may 

answer an interrogatory by specifying 

records from which the answer may be 

derived or ascertained when that 

response would be allowed under Rule 

33(d) of the Federal Rules of Civil 

Procedure. 

(c) Requests for production. 

Responses and objections to requests for 

production, inspection, and/or copying 

of documents, electronically stored 

information, or tangible things are due 

within 30 days of service of the requests 

and shall state when and how the 

responding party will make responsive 

material available. 

(d) Requests for admission—(1) 

Content. A party may serve requests for 

admission that would be proper under 

Rule 36(a)(1) of the Federal Rules of 

Civil Procedure. 

(2) Responses and failure to respond. 

Responses and objections shall comply 

with Rule 36(a)(4) and (5) of the Federal 

Rules of Civil Procedure. If the served 

party does not respond within 30 days 

of service of a request, the Board may 

on motion deem a matter admitted and 

conclusively established solely for the 

pending case. 

(3) Relief from admission. The Board 

may allow a party to withdraw or 

amend an admission for good cause. 

(e) Altering time to respond. The 

parties may agree to alter deadlines to 

respond to discovery requests. The 

Board may alter the deadlines to meet 

the needs of a case. 

(f) Supplementing and correcting 

responses. A party must supplement or 

correct a response to a discovery request 

if and when this action would be 

required by Rule 26(e)(1) of the Federal 

Rules of Civil Procedure. 

6101.15 Depositions [Rule 15]. 

(a) Generally. Unless otherwise 

ordered, parties may take depositions 

after service of the answer. If the parties 

agree in writing on the deponent, time, 

place, recording method, and maximum 

duration of a deposition, no formal 

deposition notice is needed. The Board 

may order a deposition on motion under 

Rule 8 (48 CFR 6101.8) or by subpoena 

under Rule 16 (48 CFR 6101.16). 

(b) Use. Parties may use deposition 

testimony in a case to the extent that 

would be permitted by Rule 32(a) of the 

Federal Rules of Civil Procedure. 

(c) To perpetuate testimony. If the 

Board has decided a case, and either the 

time to appeal has not expired or an 

appeal has been taken, the Board may 

for good cause grant leave to take a 

deposition as if the case were still before 

the Board in order to preserve testimony 

for possible further proceedings before 

the Board. 

6101.16 Subpoenas [Rule 16]. 

(a) Expectation of cooperation in lieu 

of subpoena. Subpoenas should rarely 

be necessary, as the Board expects 

parties to respond cooperatively to 

discovery requests and to try in good 

faith to secure the cooperation of third 

parties who have or may have evidence 

responsive to discovery requests. 

(b) Generally. The Board may issue a 

subpoena for a purpose for which a 

United States district court may issue a 

subpoena under Rule 45(a)(1) of the 

Federal Rules of Civil Procedure. Parties 

and the Board shall take all reasonable 

steps to avoid imposing undue burden 

on a person subject to a subpoena. 

(c) How requested; form. A party may 

ask the Board to issue a subpoena by 

motion under Rule 8 (48 CFR 6101.8), 

substantially before the proposed 

compliance date. The movant shall 

attach to its motion a completed 

subpoena form for signing by a Board 

judge, and shall explain in the motion 

why the proposed subpoena scope is 

reasonable and how the evidence sought 

is relevant to the case. 

(d) Production cost. The Board’s 

policy is to require a requesting party to 

advance a subpoenaed person the 

reasonable cost of producing 

subpoenaed material. 

(e) Service. The requesting party shall 

serve a subpoena and provide proof of 

service as would be required by Rule 

45(b) of the Federal Rules of Civil 

Procedure. 

(f) Motion to quash or modify. On or 

before the date specified for compliance, 

a subpoenaed person may file a motion 

to quash or modify the subpoena for a 

reason stated in Rule 45(d)(3) of the 

Federal Rules of Civil Procedure. The 

Board may rule on the motion any time 

after the party that served the subpoena 

receives the motion. 

(g) Enforcement. As necessary, the 

Board may ask the Attorney General of 

the United States to petition a United 

States district court to enforce a Board 

subpoena. 

(h) Letter rogatory in lieu of subpoena. 

If a person to be subpoenaed resides in 

a foreign country, the Board may 

facilitate the issuance of a letter rogatory 

to the person by the United States 

Department of State under 28 U.S.C. 

1781–1784. 

6101.17 Exhibits [Rule 17]. 

(a) Marking exhibits. Unless otherwise 

ordered, parties shall, to the fullest 

extent practicable, submit exhibits for 

inclusion in the appeal file before a 

hearing starts under Rule 20 (48 CFR 

6101.20) or before the first brief is filed 

when a case is submitted on the written 

record under Rule 19 (48 CFR 6101.19). 

Parties shall mark any exhibits offered 

in evidence thereafter as sequential 

additions to the appeal file. Such 

exhibits shall become part of the appeal 

file if admitted as evidence. 

(b) Copies. The Board expects all 

document exhibits to be true, complete, 

and legible copies rather than originals. 

The Board may order a party to 

substitute a better copy or to make an 

original document available for 

inspection. 

(c) Withdrawal. The Board may allow 

a party to withdraw an exhibit from the 

appeal file and the record for decision 

on terms fair to the other party. 

(d) Disposition. Unless the Board 

advises the parties of another deadline, 

the Board may discard physical (nonelectronic) exhibits in its possession 90 

days after the time to appeal the Board’s 

decision in the case expires. 


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6101.18 Election of hearing or record 

submission [Rule 18]. 

(a) Generally. The Board will hold a 

hearing in a case if the Board must find 

facts and either party elects a hearing. 

A party may elect to submit its case for 

decision on the written record under 

Rule 19 (48 CFR 6101.19). The presiding 

judge will set the deadline for an 

election under this rule. 

(b) Hybrid election. A party may elect 

to submit its case on the written record 

under Rule 19 (48 CFR 6101.19) and 

also elect to appear at a hearing, solely 

to cross-examine the other party’s 

witnesses and to object to evidence 

offered at the hearing. 

6101.19 Record submission without a 

hearing [Rule 19]. 

(a) Generally. If a party elects to 

submit its case on the record without a 

hearing, the Board will set a schedule 

for the parties to complete the 

evidentiary record and file briefs. 

(b) Evidence and objections. When a 

party elects submission on the record 

without a hearing, that party may 

submit material for inclusion in the 

record no later than the date the party 

files its initial brief. Unless otherwise 

ordered, the other party may object to 

the admission of such material as 

evidence within 5 days after receiving 

the submission. If one party elects a 

hearing and the other party elects record 

submission (or makes a hybrid election 

under Rule 18(b) (48 CFR 6101.18(b)), 

the evidentiary record shall close at the 

end of the hearing. The Board may rule 

on objections either before or in its 

decision. 

(c) Briefs and argument. The Board 

may receive briefs and/or oral argument 

on a record submission. If one party 

elects a hearing and the other party 

elects record submission, the first brief 

of the party submitting its case on the 

record shall be due no later than the 

start of the hearing. 

6101.20 Scheduling hearings [Rule 20]. 

(a) Generally. The Board will set the 

time, place, duration, and subject matter 

of a hearing in a written order after 

consulting with the parties. 

(b) Subject matter. The Board may 

schedule for hearing all or some of the 

claims or issues in a case, or all or some 

of the claims, issues, or questions of fact 

or law common to more than one case. 

(c) Unexcused absence. If a party fails 

without good excuse to appear at a 

hearing of which it received notice 

under this rule, the Board will deem 

that party to have elected to submit its 

case on the record under Rule 19. 

6101.21 Hearing procedures [Rule 21]. 

(a) Generally. The Board generally 

holds hearings in public hearing rooms. 

Except as necessary under a protective 

order or in camera procedures, hearings 

are open to the public. The Board 

entrusts the conduct of hearings to the 

discretion of the presiding judge. 

(b) Witnesses, evidence, other 

exhibits. A party that intends to offer 

testimony, other evidence, or other 

material for the record at a hearing shall 

arrange for the witness, evidence, or 

other material to be present in the 

hearing room. The Board may in its 

discretion allow testimony by telephone 

or video. 

(c) Exclusion of witnesses. The Board 

may exclude witnesses from a hearing, 

other than one designated representative 

for each party or a person authorized by 

statute to be present, so that witnesses 

are not influenced by the testimony of 

other witnesses. 

(d) Sworn testimony. Hearing 

witnesses shall testify under oath or 

affirmation. If a person called as a 

witness refuses to so swear or affirm, the 

Board may receive the person’s 

testimony under penalty of making a 

materially false statement in a Federal 

proceeding under 18 U.S.C. 1001. 

Alternatively, the Board may disallow 

the testimony and may draw inferences 

from the person’s refusal to swear or 

affirm. 

6101.22 Transcripts [Rule 22]. 

The Board arranges transcription of 

hearings, other than hearings under the 

small claims procedure of Rule 52 (48 

CFR 6101.52). The Board may, but 

generally does not, arrange transcription 

of conferences or other proceedings. No 

one may record or transcribe a Board 

proceeding without the Board’s 

permission. The Board may order or 

acknowledge corrections to an official 

transcript. Each party is responsible for 

obtaining its own copy of a transcript. 

6101.23 Briefs [Rule 23]. 

(a) Generally. The Board may order or 

invite briefs on any issue in a case at 

any time. Briefs shall be formatted for 

8.5 by 11-inch paper, double spaced, 

with body and footnote text no smaller 

than 13 point. 

(b) Prehearing, post-hearing, and 

other briefs. Prehearing and posthearing briefs, briefs filed under Rule 

19, and briefs on non-procedural 

motions shall cite record evidence for 

factual statements and legal authority 

for legal arguments. 

6101.24 Closing the record [Rule 24]. 

(a) Closing the evidentiary record. 

Unless otherwise ordered, the evidence 

as defined in Rule 9(a)(1) (48 CFR 

6101.9(a)(1)) is closed at the end of a 

hearing under Rule 20 or at the start of 

merits briefing when a case is submitted 

on the record under Rule 19 (48 CFR 

6101.19). 

(b) Closing the record for decision. 

Unless otherwise ordered, the record for 

decision as defined in Rule 9(a) (48 CFR 

6101.9(a)) is closed when the Board 

receives the final scheduled brief on the 

matters to be decided. 

6101.25 Decisions and settlements 

[Rule 25]. 

(a) Decisions. The Board issues 

decisions in writing, except as allowed 

by Rule 52 (48 CFR 6101.52). The Board 

will send a copy of a decision to each 

party, requesting confirmation of receipt 

(see Rule 1 (48 CFR 6101.1)), and will 

post the decision on its website. If a 

decision reserves any part of a case for 

later proceedings, it is conclusive as to 

the matters it resolves, except as 

provided in Rules 26 and 28 (48 CFR 

6101.26 and 6101.28). 

(b) Settlements. Parties may settle a 

case by stipulating to an award. The 

Board may issue a decision making the 

stipulated award if: 

(1) The Board is satisfied that it has 

jurisdiction; and 

(2) The stipulation states that no party 

will seek reconsideration of, seek relief 

from, or appeal the Board’s decision. 

6101.26 Reconsideration [Rule 26]. 

(a) Grounds. The Board may on 

motion reconsider a decision or order 

for a reason recognized in Rule 59 of the 

Federal Rules of Civil Procedure. 

Arguments and evidence previously 

presented are not grounds for 

reconsideration. 

(b) Time limit for motion. A party may 

move for reconsideration of a decision 

or order on an appeal or petition within 

30 days after that party receives the 

decision or order. A party may move for 

reconsideration of a decision or order on 

an application within 7 days after 

receiving the decision or order. The 

Board does not extend these time limits. 

(c) Effect of motion. A pending 

reconsideration motion does not affect 

any obligation to comply with a 

decision or order. 

6101.27 Relief from decision or order 

[Rule 27]. 

(a) Grounds. The Board may grant 

relief, for a reason recognized in Rule 60 

of the Federal Rules of Civil Procedure, 

from a decision or order that, alone or 

in conjunction with prior decisions or 

orders, resolves all of an appeal, 

petition, or application. 

(b) Time limit for motion. A party may 

move for relief under this rule within 


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120 days after that party receives the 

decision or order at issue. 

(c) Effect of motion. A pending 

motion for relief under this rule does 

not affect any obligation to comply with 

a decision or order. 

6101.28 Full Board consideration 

[Rule 28]. 

(a) By motion. The full Board may 

consider a decision or order when 

necessary to maintain uniformity of 

Board decisions or if the matter is 

exceptionally important. Motions for 

full Board consideration are disfavored 

and are decided by a majority of the 

Board. A party may move for full Board 

consideration within 10 days after that 

party receives the decision or order at 

issue. An order granting full Board 

consideration will include concurring or 

dissenting opinions, if any. 

(b) By Board initiative. A majority of 

the Board may initiate full Board 

consideration of any matter in a case, up 

to 10 days after a judge or panel issues 

a decision or order on that matter. The 

full Board will inform the parties by 

order of the matter or matters to be 

considered. The order will include 

concurring or dissenting opinions, if 

any. 

(c) Full Board decision. The full Board 

decides matters by majority vote. A full 

Board decision will include concurring 

or dissenting opinions, if any. 

(d) Effect of motion. A pending 

motion for full Board consideration does 

not affect any obligation to comply with 

a decision or order. 

6101.29 Clerical mistakes; harmless error 

[Rule 29]. 

(a) Clerical mistakes. The Board may 

correct clerical mistakes while a case is 

pending, or within 60 days thereafter if 

a decision has not been appealed. If a 

Board decision is appealed, the Board 

may correct clerical mistakes only by 

leave of the appellate Court. 

(b) Harmless error. The Board 

disregards errors that do not affect a 

substantive right of a party. No error in 

a ruling, order, or decision of the Board 

will be grounds for a new hearing or for 

vacating, reconsidering, modifying, or 

otherwise disturbing a decision or order 

unless refusing to correct the error will 

prejudice a party or work a substantial 

injustice. 

6101.30 Award of fees and other expenses 

[Rule 30]. 

(a) Application for fees and other 

expenses. A party in an appeal may 

apply for an award of fees and other 

expenses as permitted under EAJA or 

any other provision that may entitle the 

party to such an award. 

(b) Time for filing. A party may file an 

application for fees and other expenses 

only after the time to seek appellate 

review of a Board decision has expired. 

A party may file an application within 

30 calendar days after that date. 

(c) Application requirements. An 

application for fees and other expenses 

shall: 

(1) Specify the applicant, appeal, and 

amount sought; 

(2) Explain why the applicant is 

legally eligible for an award; 

(3) Provide a schedule of fees and 

expenses with supporting 

documentation; 

(4) Be signed by the applicant or a 

person appearing for the applicant, with 

a declaration under penalty of perjury 

that the information in the application 

is correct; 

(5) Provide evidence of the applicant’s 

small business status or net worth; and 

(6) Justify any request for attorney fees 

exceeding the statutory rate. 

(d) Proceedings. (1) Within 30 days 

after receiving an application, the 

respondent may file an answer with any 

objections to the award requested, 

supported by facts and legal analysis. 

(2) The Board may order further 

proceedings if necessary for a full and 

fair resolution of issues arising from an 

application. 

(e) Decision. The Board will issue a 

written decision on an application. 

6101.31 Payment of award [Rule 31]. 

When permitted by law, Board awards 

under contracts may be paid from the 

permanent indefinite judgment fund 

under 31 U.S.C. 1304 and 31 CFR part 

256. An EAJA award is paid from funds 

of the respondent. 

6101.32 Appeal from Board decision 

[Rule 32]. 

(a) Notice. A party filing a notice of 

appeal with the United States Court of 

Appeals for the Federal Circuit (or with 

a district court in an admiralty case) 

shall provide a copy of the notice to the 

Board. 

(b) Record on review. The record on 

appellate review is the record for 

decision under Rule 9(a) (48 CFR 

6101.9(a)) and any other material in a 

case file that the appellate Court may 

require. 

(c) Certified list. The Clerk will 

provide the clerk of the appellate Court 

a certified list as required by the Court’s 

rules. 

(d) Inspection or copying of record. 

The Clerk will make a record on appeal 

available for inspection and copying in 

accordance with the rules of the 

appellate Court. 

6101.33 Remand from appellate Court 

[Rule 33]. 

If a Court remands a case to the Board 

for further proceedings, each party shall, 

within 30 days of receipt of the 

appellate mandate, recommend 

procedures to comply with the remand 

order. The Board will then issue an 

order on further proceedings. 

6101.34 Ex parte communications 

[Rule 34]. 

No member of the Board or of the 

Board’s staff will communicate with a 

party about any material issue in a case 

outside of the presence of the other 

party, and no one shall attempt such 

communications on behalf of a party. 

This rule does not bar such 

communications about the Board’s 

administrative functions or procedures. 

6101.35 Standards of conduct; sanctions 

[Rule 35]. 

(a) Standards of conduct. All parties 

and their representatives, attorneys, and 

any expert or consultant retained by 

them or their attorneys shall obey 

directions and orders of the Board and 

adhere to standards of conduct 

applicable to such parties and persons. 

Standards applying to an attorney 

include the rules of professional 

conduct and ethics of the jurisdictions 

in which the attorney is licensed to 

practice, to the extent that those rules 

are relevant to conduct affecting the 

integrity of the Board, its process, or its 

proceedings. 

(b) Sanctions. If a party or its 

representative, attorney, expert, or 

consultant fails to comply with any 

direction or order of the Board 

(including an order to provide or permit 

discovery) or engages in misconduct 

affecting the Board, its process, or its 

proceedings, the Board may make such 

orders as are just, including the 

imposition of appropriate sanctions. 

Sanctions may include, but are not 

limited to: 

(1) Taking the facts pertaining to the 

matter in dispute to be established for 

the purpose of the case in accordance 

with the contention of the party who is 

not at fault; 

(2) Forbidding the challenge of the 

accuracy of any evidence; 

(3) Refusing to allow the party to 

support or oppose designated claims or 

defenses; 

(4) Prohibiting the party from 

introducing into evidence designated 

claims or defenses; 

(5) Striking pleadings or parts thereof, 

or staying further proceedings until the 

order is obeyed; 

(6) Dismissing the case or any part 

thereof; 


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(7) Enforcing the protective order and 

disciplining individuals subject to such 

order for violation thereof, including 

disqualifying a party’s representative, 

attorney, expert, or consultant from 

further participation in the case; 

(8) Drawing evidentiary inferences 

adverse to the party; or 

(9) Imposing such other sanctions as 

the Board deems appropriate. 

(c) Denial of access to protected 

material. The Board may in its 

discretion deny access to protected 

material to any person found to have 

previously violated a protective order, 

regardless of who issued the order. 

(d) Disciplinary proceedings—(1) 

Sanctions. The Board may discipline 

individual party representatives, 

attorneys, experts, or consultants for 

violating any Board order, direction, or 

standard of conduct if the violation 

seriously affects the integrity of the 

Board, its process, or its proceedings. 

Sanctions may be public or private, and 

may include admonishment, reprimand, 

disqualification from a particular 

matter, referral to an appropriate 

licensing authority, or other action that 

circumstances may warrant. 

(2) Suspension. The Board may 

suspend an individual from appearing 

before the Board as a party 

representative, attorney, expert, or 

consultant, if, after affording such 

individual notice and opportunity to be 

heard, a majority of the members of the 

full Board determine such a sanction is 

warranted. 

6101.36 Board seal [Rule 36]. 

The seal of the Board is a circular logo 

with ‘‘Civilian Board of Contract 

Appeals’’ on the outer margin. The seal 

is a means of authenticating records, 

notices, orders, dismissals, opinions, 

subpoenas, and certificates issued by 

the Board. 

6101.37–6101.50 [Reserved] 

6101.51 Alternative procedures [Rule 51]. 

An appellant in an eligible case may 

elect the small claims procedure under 

Rule 52 (48 CFR 6101.52) or the 

accelerated procedure under Rule 53 (48 

CFR 6101.53). Parties may jointly elect 

alternative dispute resolution under 

Rule 54 (48 CFR 6101.54). 

6101.52 Small claims procedure [Rule 52]. 

(a) Election. The small claims 

procedure is available solely at an 

appellant’s election and is limited to 

appeals in which there is a monetary 

amount in dispute and the requirements 

for expedited disposition set forth in the 

Contract Disputes Act, 41 U.S.C. 

7106(b), are met. An appellant may elect 

the small claims procedure up to 30 

days after receiving the respondent’s 

answer. 

(b) Procedure. The respondent may 

object to an election, on the grounds 

that Rule 52(a) (paragraph (a) of this 

section) is not satisfied, within 10 days 

after receiving the election. If the small 

claims procedure is used, the Board will 

set a schedule for timely resolution of 

the appeal. The schedule may restrict or 

eliminate pleadings, discovery, and 

other prehearing activities. 

(c) Decision. The presiding judge may 

issue a decision in summary form. A 

decision is final and conclusive, shall 

not be set aside except for fraud, and is 

not precedential. If possible, the Board 

will resolve the appeal within 120 days 

after the appellant elects the small 

claims procedure. The Board may 

extend the appeal schedule if an 

appellant does not adhere to the 

established schedule. 

6101.53 Accelerated procedure [Rule 53]. 

(a) Election. The accelerated 

procedure is available solely at an 

appellant’s election and is limited to 

appeals in which there is a monetary 

amount in dispute and the requirements 

for accelerated disposition set forth in 

the Contract Disputes Act, 41 U.S.C. 

7106(a), are met. The appellant may 

elect the accelerated procedure up to 30 

days after receiving the respondent’s 

answer. 

(b) Procedure. The respondent may 

object to an election, on the grounds 

that Rule 53(a) (paragraph (a) of this 

section) is not satisfied, within 10 days 

after receiving the election. If the 

accelerated procedure is used, the Board 

will set a schedule for timely resolution 

of the appeal. The schedule may restrict 

or eliminate pleadings, discovery, and 

other prehearing activities. 

(c) Decision. The presiding judge may 

issue a decision with the concurrence of 

at least one panel member. If the 

presiding judge and a panel member 

disagree, the panel will decide the 

appeal. If possible, the Board will 

resolve the appeal within 180 days after 

the appellant elects the accelerated 

procedure. The Board may extend the 

appeal schedule if an appellant does not 

adhere to the established schedule. 

6101.54 Alternative dispute resolution 

[Rule 54]. 

(a) Availability. The CDA requires 

boards of contract appeals to provide to 

the fullest extent practicable informal, 

expeditious, and inexpensive resolution 

of disputes. Resolution of a dispute at 

the earliest stage feasible, by the fastest 

and least expensive method possible, 

benefits both parties. The Board 

provides alternative dispute resolution 

(ADR) services for pre-claim and prefinal decision matters, as well as 

appeals pending before the Board. The 

Board may also conduct ADR 

proceedings for any Federal agency. The 

use of ADR proceedings does not toll 

any statutory time limits. 

(b) Procedures for requesting ADR. 

Parties may jointly ask the Board Chair 

to appoint a judge as an ADR Neutral. 

The parties may request a particular 

judge or judges, to include the presiding 

judge. To facilitate full, frank, and open 

participation, a Neutral will not discuss 

the substance of the case or the parties’ 

conduct in ADR with other Board 

personnel, and a Neutral who 

participates in a nonbinding ADR 

procedure that does not resolve the 

dispute is recused from further 

participation in the matter unless the 

parties agree otherwise in writing and 

the Board concurs. 

(c) Confidentiality. Written material 

prepared for use in ADR, oral 

presentations made in ADR, and all 

discussions between the parties and the 

Neutral are confidential, subject to 5 

U.S.C. 574, and, unless otherwise 

specifically agreed by the parties, 

inadmissible as evidence in any Board 

proceeding, although evidence 

otherwise admissible before the Board is 

not rendered inadmissible merely 

because of its use in ADR. 

(d) ADR agreement. Parties shall agree 

in writing to an ADR method and the 

procedures and requirements for 

implementing it. The ADR agreement 

shall provide that the parties and 

counsel will not subpoena the Neutral 

in any legal action or administrative 

proceeding of any kind to provide 

documents or testimony relating to the 

ADR. 

(e) Types of ADR. Parties and the 

Board may agree on any type of binding 

or nonbinding ADR suited to a dispute. 

PART 6102—CROP INSURANCE 

CASES 

Sec. 

6102.201 Scope of rules [Rule 201]. 

6102.202 Rules for crop insurance cases 

[Rule 202]. 

Authority: 7 U.S.C. 1501 et seq.; 41 U.S.C. 

438(c)(2). 

6102.201 Scope of rules [Rule 201]. 

These procedures govern the Board’s 

resolution of disputes between 

insurance companies and the 

Department of Agriculture’s Risk 

Management Agency (RMA) involving 

actions of the Federal Crop Insurance 

Corporation (FCIC). Prior to the creation 

of this Board, the Department of 

Agriculture Board of Contract Appeals 

resolved this variety of dispute pursuant 


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41018 Federal Register / Vol. 83, No. 160 / Friday, August 17, 2018 / Rules and Regulations 

to statute, 7 U.S.C. 1501 et seq. (the 

Federal Crop Insurance Act), and 

regulation, 7 CFR 24.4(b) and 400.169. 

The Board has this authority under an 

agreement with the Secretary of 

Agriculture, as permitted under section 

42(c)(2) of the Office of Federal 

Procurement Policy Act, 41 U.S.C. 

438(c)(2). 

6102.202 Rules for crop insurance cases 

[Rule 202]. 

The rules of procedure for these cases 

are the same as the rules of procedure 

for Contract Disputes Act appeals, with 

these exceptions: 

(a) Rule 1(b)(48 CFR 6101.1(b)). (1) 

The term ‘‘appeal’’ means a dispute 

between an insurance company that is 

a party to a Standard Reinsurance 

Agreement (or other reinsurance 

agreement) and the RMA, and the term 

‘‘appellant’’ means the insurance 

company filing an appeal. 

(2) A notice of appeal is filed upon its 

receipt by the Office of the Clerk of the 

Board, not when it is mailed. 

(3) The terms ‘‘petition’’ and 

‘‘petitioner’’ do not apply to FCIC cases. 

(b) Rule 2 (48 CFR 6101.2). (1) Rule 

2(a) (48 CFR 6101.2(a)) is replaced with 

the following for FCIC cases: A notice of 

appeal shall be in writing and shall be 

signed by the appellant or by the 

appellant’s attorney or authorized 

representative. If the appeal is from a 

determination by the Deputy 

Administrator of Insurance Services 

regarding an action alleged not to be in 

accordance with the provisions of a 

Standard Reinsurance Agreement (or 

other reinsurance agreement), or if the 

appeal is from a determination by the 

Deputy Administrator of Compliance 

concerning a determination regarding a 

compliance matter, the notice of appeal 

should describe the determination in 

enough detail to enable the Board to 

differentiate that decision from any 

other; the appellant can satisfy this 

requirement by attaching to the notice of 

appeal a copy of the Deputy 

Administrator’s determination. If an 

appeal is taken from the failure of the 

Deputy Administrator to make a timely 

determination, the notice of appeal 

should describe in detail the matter that 

the Deputy Administrator has failed to 

determine; the appellant can satisfy this 

requirement by attaching to the notice of 

appeal a copy of the written request for 

a determination it sent to the Deputy 

Administrator. 

(2) In Rule 2(a) (48 CFR 6101.2(a)), the 

references to ‘‘contracting officer’’ are 

references to ‘‘Deputy Administrator.’’ 

(3) Rule 2(b) (48 CFR 6101.2(b)) does 

not apply to FCIC cases. 

(4) In Rule 2(d)(1) (48 CFR 

6101.2(d)(1)), an appeal from a 

determination of a Deputy 

Administrator shall be filed no later 

than 90 calendar days after the date the 

appellant receives that determination. 

The Board is authorized to resolve only 

those appeals that are timely filed. 

(5) In Rule 2(d)(2) (48 CFR 

6101.2(d)(2)), an appeal may be filed 

with the Board if the Deputy 

Administrator fails or refuses to issue a 

determination within 90 days after the 

appellant submits a request for a 

determination. 

(c) Rule 4 (48 CFR 6101.4). (1) In Rule 

4, the references to ‘‘contracting officer’’ 

are references to ‘‘Deputy 

Administrator.’’ 

(2) In Rule 4(a), paragraphs (1) 

through (7) (48 CFR 6101.4(a)(1) through 

(7)), describing materials included in 

the appeal file, are replaced by the 

following: 

(i) The determination of the Deputy 

Administrator that is the subject of the 

dispute; 

(ii) The reinsurance agreement (with 

amendments or modifications) at issue 

in the dispute; 

(iii) Pertinent correspondence 

between the parties that is relevant to 

the dispute, including prior 

administrative determinations and 

related submissions; 

(iv) Documents and other tangible 

materials on which the Deputy 

Administrator relied in making the 

underlying determination; and 

(v) Any additional material pertinent 

to the authority of the Board or the 

resolution of the dispute. 

(3) The following subsection is added 

to Rule 4 (48 CFR 6101.4): Media on 

which appeal file is to be submitted. All 

appeal file submissions, including the 

index, shall be submitted in two forms: 

Paper and in a text or .pdf format 

submitted on a compact disk. Each 

compact disk shall be labeled with the 

name and docket number of the case. 

The judge may delay the submission of 

the compact disk copy of the appeal file 

until the close of the evidentiary record. 

(d) Rule 5 (48 CFR 6101.5). In Rule 

5(a)(2) (48 CFR 6101.5(a)(2)), the 

references to ‘‘contracting officer’’ are 

references to ‘‘Deputy Administrator.’’ 

(e) Rule 15 (48 CFR 6101.15). In Rule 

15(c) (48 CFR 6101.15(c)), the final 

sentence does not apply to FCIC cases. 

(f) Rule 16 (48 CFR 6101.16). Rules 16 

(b) through (h) (48 CFR 6101.16(b) 

through (h)) do not apply to FCIC cases. 

Instead, upon the written request of any 

party filed with the Office of the Clerk 

of the Board, or upon the initiative of a 

judge, a judge is authorized by 

delegation from the Secretary of 

Agriculture to request the appropriate 

United States Attorney to apply to the 

appropriate United States District Court 

for the issuance of subpoenas pursuant 

to 5 U.S.C. 304. 

(g) Rule 25 (48 CFR 6101.25). In Rule 

25(a) (48 CFR 6101.25(a)), the phrase, 

‘‘except as allowed by Rule 52,’’ does 

not apply to FCIC cases. 

(h) Rule 32 (48 CFR 6101.32). Rule 32 

(a) through (c) (48 CFR 6101.32(a) 

through (c)) are replaced with the 

following for FCIC cases: 

(1) Finality of Board decision. A 

decision of the Board is a final 

administrative decision. 

(2) Appeal permitted. An appellant 

may file suit in the appropriate United 

States District Court to challenge the 

Board’s decision. An appellant filing 

such a suit shall provide the Board with 

a copy of the complaint. 

(i) Rule 52 (48 CFR 6101.52). Rule 52 

does not apply to FCIC cases. 

(j) Rule 53 (48 CFR 6101.52). Rule 53 

does not apply to FCIC cases. 

[FR Doc. 2018–17213 Filed 8–16–18; 8:45 am] 

BILLING CODE 6820–AL–P 

DEPARTMENT OF COMMERCE 

National Oceanic and Atmospheric 

Administration 

50 CFR Part 622 

[Docket No. 120815345–3525–02] 

RIN 0648–XG420 

Snapper-Grouper Fishery of the South 

Atlantic; 2018 Commercial 

Accountability Measure and Closure 

for the Other Jacks Complex 

AGENCY: National Marine Fisheries 

Service (NMFS), National Oceanic and 

Atmospheric Administration (NOAA), 

Commerce. 

ACTION: Temporary rule; closure. 

SUMMARY: NMFS implements an 

accountability measure (AM) for the 

Other Jacks Complex commercial sector 

in the exclusive economic zone (EEZ) of 

the South Atlantic for the 2018 fishing 

year through this temporary rule. The 

Other Jacks Complex is composed of the 

lesser amberjack, almaco jack, and 

banded rudderfish. NMFS projects that 

commercial landings of the Other Jacks 

Complex will reach the combined 

commercial annual catch limit (ACL) by 

August 22, 2018. Therefore, NMFS 

closes the commercial sector for this 

complex in the South Atlantic EEZ, on 

August 22, 2018, and it will remain 

closed until the start of the next fishing 

year on January 1, 2019. This closure is 


daltland on DSKBBV9HB2PROD with RULES