Federal Emergency Management Agency

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Federal Emergency Management Agency
Public Assistance Arbitration Process
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Briefing Objectives

• Review Section 601 of the American Recovery
  Reinvestment Act of 2009 (ARRA)
• Discuss 44 CFR 206.209
• Explain the Eligibility Criteria for Arbitration
• Detail the Time Limits Timeframes
• Describe the Process

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The ARRA

• Became Law on February 17, 2009
• Establishes an Arbitration Option
• Included a Provision Designed to Expedite the
  Resolution of Disputed Projects
• Applies only to Hurricane Katrina Rita
  Disasters
• Project Costs Must Be Greater Than 500,000

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Arbitration is Limited to
Gulf Coast Katrina Rita Disasters

• DR-1603-LA
• DR-1604-MS
• DR-1605-AL
• DR-1606-TX
• DR-1607-LA

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44 CFR 206.209

• Published on August 31, 2009
• Provides Time Frames
• Sets Arbitration Criteria
• Establishes Arbitration Procedures
• Provides Final Agency Action
• Establishes Responsibility for Arbitration
  Expenses

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Requirements for an Arbitration Request

• FEMA Determinations or Decisions Made On or After
  February 17, 2009
• No Final Decision Prior to February 17, 2009
• Projects Must Cost More Than 500,000
• Statutory Time Limits for Appeals Apply
• Pending Appeal Must Be Withdrawn by Applicant by
  October 30, 2009

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1st Appeal, Time Limits
1st Appeals Pending a Decision On 2/17/09

• Applicant Must Request, in writing, Arbitration
  within 60 Days of August 31, 2009 (October 30,
  2009)
• Appeals Pending a Decision on 2/17/09 Must be
  Withdrawn, in writing, within 60 Days of August
  31, 2009 (October 30, 2009)

Arbitration is In Lieu Of Filing or Continuing a
1st or 2nd Appeal
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2nd Appeal, Time Limits
2nd Appeals Pending a Decision On 2/17/09

• 2nd Appeals Pending or in Receipt of Final
  Decisions on or After February 17, 2009 -
  Applicant Must Request Arbitration, in writing,
  by October 30, 2009
• If Applicant opts for Arbitration - 2nd Appeal
  Must be Withdrawn, in writing, by October 30,
  2009

Arbitration is In Lieu Of Filing or Continuing a
1st or 2nd Appeal
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Time Limits for a Determination

• After August 31, 2009 - The Applicant Must
  Request Arbitration, in writing, within 30 Days
  of the Determination in Dispute
• Disputes Must Be Eligible for an Appeal Per
  Time Limits in 44 CFR 206.206

Arbitration is In Lieu Of Filing or Continuing a
1st or 2nd Appeal
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Arbitration Panel

• US Civilian Board of Contract Appeals (CBCA)
• Panel is Composed of Three Arbitrators
• Panel for each Appeal Chosen By the Arbitration
  Administrator
• Arbitration Administrator Notifies All Parties of
  Names of Arbitrators on the Panel

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Content of Request for Arbitration

• Written Statement of Dispute and Request for
  Arbitration
• All Documentation Supporting the Applicants
  Position
• All information necessary for the arbitration
  panel to make an informed decision
• There is no limit on amount of documentation that
  may be provided
• Applicants are encouraged to describe their
  claims in sufficient detail to make the
  circumstances of the dispute clear to the
  arbitration panel
• Withdrawal of Pending Appeal, if Applicable
• Disaster Number
• Name and Address of Applicants Authorized
  Representative or Counsel

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Submission by Applicant

• Must Submit Written Request Documentation
  Simultaneously to Grantee, the FEMA Regional
  Administrator and Arbitration Administrator
• Within 30 Calendar Days of Receipt of Notice of
  the Determination
• Appeals Pending a Decision on 2/17/09 and 2nd
  Appeal Decisions Between 2/17/09 10/30/09
• The Applicant Must Request Arbitration within 60
  Days From Date Final Rule Was Published October
  30, 2009
• Submit a Withdrawal of the Pending Appeal, if
  Applicable by October 30, 2009

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Submission by Grantee

• Within 15 Days of Receipt of Request from
  Applicant
• Forward Name and Address of the Grantees
  Authorized Representative or Counsel
  Simultaneously to
• FEMA Regional Administrator
• Arbitration Administrator
• Applicant
• May Forward a Written Recommendation in Support
  or Opposition to the Applicants Request
  Simultaneously to
• FEMA Regional Administrator
• Arbitration Administrator
• Applicant

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Submission by FEMA

• Within 30 Days of Receipt of Request from
  Applicant
• Simultaneously Forward FEMAs Response to
• Grantee
• Arbitration Administrator
• Applicant
• Written Submission to Include
• Memorandum in Support FEMAs Response
• A Copy of the Project Worksheet
• All Supporting Documentation
• Name and Address of Authorized Representative or
  Counsel

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Arbitration Panels Responsibilities

• Provide a Docket Number for Each Request for
  Arbitration it Receives
• Arbitration Administrator Selects 3 Members for
  the Arbitration Panel
• Contacts All Parties to set up a Preliminary
  Conference by Telephone
• Set the Date and Location for the Hearing if a
  Hearing Has Been Requested
• Render Final Determination Based on Relevant
  Written Materials and Oral Presentations, if any.

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Preliminary Conference

• Held Within 10 Days After Panel Receives FEMAs
  Response to the Request for Arbitration
• Teleconference with All Parties
• Purpose
• Address Future Conduct of the Case
• Clarification of Disputed Issues
• Possible Arbitrator Disqualification
• Schedule of Hearings and Hearing Location if
  Requested
• Applicant and/or FEMA Must Request Hearing Prior
  to Preliminary Conference
• Other Administrative Matters

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Hearing

• Name of Presenter if Hearing is Requested
• Hearing Held Within 60 Calendar Days After
  Preliminary Conference
• Oral Presentation
• In Person
• Or by Telephone
• All Parties Must be Able to Simultaneously Hear
  All Other Participants
• The Parties May Not Engage in Discovery or
  Provide Additional Paper Submissions at the
  Hearing
• Panel May Request Additional Written Materials
  from Either Party
• And Parties May Make Request to Submit Additional
  Written Materials Following the Hearing.
  Discretion to Grant Request Rests with the Panel.

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Review by the Arbitration Panel

• Will Consider All Relevant Written Materials
• Will Consider Oral Presentations
• Panel May Seek Independent Expert Advice
• Engineers
• Architects
• Subject Matter Experts

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Finality of Decision

• Majority of the Panel Will Constitute a Final
  Decision
• Final Decision is Binding for All Parties
• No Further Administrative Review
• Not Subject to Judicial Review
• Except as Permitted by 9 U.S.C. 10

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Definitions

• Appeal Two-level Procedure under 44 CFR
  206.206 to Resolve an Agency Determination with
  an Agency Decision
• Application A Project Worksheet Before it is
  Approved
• ARRA American Recovery Reinvestment Act of
  2009
• CBCA US Civilian Board of Contract Appeals
• Decision Outcome of an Appeal or Arbitration
  Request
• Determination Non Appealed FEMA Action in
  Dispute
• Docket Number Tracking Number Provided by the
  CBCA

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Definitions, cont

• Final Rule Regulations Based on Section 601 of
  the ARRA
• Hearing Oral Presentation Requested by the
  Applicant or FEMA
• Panel The Arbitration Panel from the CBCA
• Preliminary Conference Panel Initiated
  Teleconference With All Parties
• Project Project Worksheet
• May Include More Than One Site
• May Include More than One Project Worksheet
• Time Limit Number of Days to File an Appeal,
  Arbitration Request or Issue a Decision

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Questions ?
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