Rule2021-17213
Public Assistance Appeals and Arbitrations
Primary source
Metadata and text below are from the Federal Register, a public-domain U.S. government work. Always verify the official published version before relying on it for any legal matter.
Published
August 16, 2021
Effective
January 1, 2022
Issuing agencies
Homeland Security DepartmentFederal Emergency Management Agency
Abstract
This final rule implements the new right of arbitration authorized by the Disaster Recovery Reform Act of 2018 (DRRA) and revises the Federal Emergency Management Agency's regulations regarding first and second Public Assistance appeals.
Full Text
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<title>Federal Register, Volume 86 Issue 155 (Monday, August 16, 2021)</title>
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[Federal Register Volume 86, Number 155 (Monday, August 16, 2021)]
[Rules and Regulations]
[Pages 45660-45685]
From the Federal Register Online via the Government Publishing Office [<a href="http://www.gpo.gov">www.gpo.gov</a>]
[FR Doc No: 2021-17213]
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DEPARTMENT OF HOMELAND SECURITY
Federal Emergency Management Agency
44 CFR Part 206
[Docket ID: FEMA-2019-0012]
RIN 1660-AB00
Public Assistance Appeals and Arbitrations
AGENCY: Federal Emergency Management Agency, DHS.
ACTION: Final rule.
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SUMMARY: This final rule implements the new right of arbitration
authorized by the Disaster Recovery Reform Act of 2018 (DRRA) and
revises the Federal Emergency Management Agency's regulations regarding
first and second Public Assistance appeals.
DATES: This rule is effective on January 1, 2022. Proposed information
collection comments must be submitted on or before September 15, 2021.
ADDRESSES: The docket for this rulemaking is available for inspection
using the Federal eRulemaking Portal: <a href="http://www.regulations.gov">http://www.regulations.gov</a> and
can be viewed by following that website's instructions.
Written comments and recommendations for the proposed information
collection should be sent within 30 days of publication of this notice
to <a href="http://www.reginfo.gov/public/do/PRAMain">www.reginfo.gov/public/do/PRAMain</a>. Find this particular information
collection by selecting ``Currently under 30-day Review--Open for
Public Comments'' or by using the search function.
FOR FURTHER INFORMATION CONTACT: Shabnaum Amjad, Deputy Associate Chief
Counsel, Regulatory Affairs, Office of Chief Counsel, Federal Emergency
Management Agency, 500 C Street SW, Washington, DC 20472. Phone: 202-
212-2398 or email: <a href="/cdn-cgi/l/email-protection#0e5d666f6c606f7b63204f63646f6a4e686b636f206a667d20696178"><span class="__cf_email__" data-cfemail="86d5eee7e4e8e7f3eba8c7ebece7e2c6e0e3ebe7a8e2eef5a8e1e9f0">[email protected]</span></a>.
SUPPLEMENTARY INFORMATION:
I. Proposed Rule
On August 31, 2020, the Federal Emergency Management Agency (FEMA)
published a Notice of Proposed Rulemaking (NPRM) (85 FR 53725)
proposing to revise its current Public Assistance (PA) appeals
regulation at 44 CFR 206.206 to add in the new right to arbitration
under the Disaster Recovery Reform Act of 2018 (DRRA),\1\ in
conjunction with some revisions to the current appeals process. The
DRRA adds arbitration as a permanent alternative to a second appeal
under the PA Program. Additionally, applicants that have had a first
appeal pending with FEMA for more than 180 calendar days may withdraw
such appeal and submit a request for arbitration. In both cases, the
amount in dispute must be greater than $500,000, or greater than
$100,000 for an applicant for assistance in a rural area. The other
major proposed revisions to 44 CFR 206.206 included adding definitions;
adding subparagraphs to clarify what actions FEMA may take and will not
take while an appeal is pending and stating that FEMA may issue
separate guidance as necessary, similar to current 44 CFR 206.209(m);
adding a finality of decision paragraph; requiring electronic
submission for appeals and arbitrations documents; and clarifying
overall time limits for first and second appeals.
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\1\ Disaster Recovery Reform Act of 2018, Public Law 115-254,
132 Stat. 3186 (Oct. 5, 2018), 42 U.S.C. 5189a.
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These proposed rules for arbitration are separate and distinct from
the arbitration provisions located in 44 CFR 206.209. Under Sec.
206.209, applicants may request arbitration to resolve disputed PA
applications under major disaster declarations for Hurricanes Katrina
and Rita, pursuant to the
[[Page 45661]]
authority of the American Recovery and Reinvestment Act of 2009
(ARRA).\2\
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\2\ American Recovery and Reinvestment Act of 2009, Public Law
111-5, 123 Stat. 115 (Feb. 17, 2009), 26 U.S.C. 1 note.
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As amended by Section 1219 of the DRRA, 42 U.S.C. 5189a(d) names
the Civilian Board of Contract Appeals (CBCA) as the entity responsible
for conducting public assistance arbitrations. Therefore, FEMA
recommends that applicants review the CBCA regulations at 48 CFR part
6101, Rules of Procedure of the Civilian Board of Contract Appeals, and
48 CFR part 6106, Rules of Procedure for Arbitration of Public
Assistance Eligibility or Repayment, for additional CBCA rules of
procedure, as both cover FEMA public assistance arbitrations.
II. Discussion of Public Comments and FEMA's Responses
The public comment period of the NPRM closed on October 30, 2020.
FEMA received germane comments from six separate commenters. The first
anonymous commenter [FEMA-2019-0012-0002] was unconditionally
supportive of the NPRM, as they found the DRRA population thresholds
fair. The second commenter, a member of the public [FEMA-2019-0012-
0003], addressed five separate issues regarding the NPRM in their
comment including: Suggesting the use of ``applicant'' to refer to all
entities; suggesting the use of ``appellant'' instead of ``applicant''
and ``subrecipient''; stating that using the date of issuance of the
FEMA determination instead of the date the ``appellant'' views the FEMA
determination does not provide clarity; suggesting that the
``appellant'' now has 150 days to make a complete appeal with the new
30-day deadline to provide additional information; and questioning
whether the NPRM removed the first 60-day requirement to make the
entire deadline 120-days regardless of when each entity appeals so long
as it is within 120 days. The third commenter, also a member of the
public [FEMA-2019-0012-0004], suggested FEMA adjust the amount in
dispute thresholds for hyper-inflation. This commenter also submitted a
duplicative comment which was withdrawn [FEMA-2019-0012-0005]. The
second anonymous commenter submitted an unrelated comment [FEMA-2019-
0012-DRAFT-0006], which was not posted to the Docket. The fourth
commenter, from a State Emergency Management Agency [FEMA-2019-0012-
0006], also asked whether the NPRM's combination of the applicant and
recipient's 60-day submission requirements could equate to additional
submission time for appeals. The fifth commenter, from the same State
Emergency Management Agency [FEMA-2019-0012-0007], asked numerous
questions regarding applicant and recipient proposed appeal submission
timeframes. The sixth commenter, a State Division of Emergency
Management (DEM) [FEMA-2019-0012-0008], generally supports the effort
to amend the regulations. However, the State DEM believes many of the
changes proposed in the NPRM conflict with the Robert T. Stafford
Disaster Relief and Emergency Assistance Act (Stafford Act) \3\ and
expressed concern with FEMA removing its own deadlines while strictly
applying them to applicants and recipients. The State DEM included
attachments of cases--or parts of cases--and a detailed table of their
comments.
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\3\ Disaster Relief Act of 1974, Public Law 93-288, 88 Stat. 143
(May 22, 1974), as amended, 42 U.S.C. 5121 et seq.
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A. Adjustment Amount in Dispute Thresholds
Under Section 1219 of the DRRA, in order to request arbitration a
PA applicant must dispute an amount that exceeds $500,000 (or $100,000
for an applicant in a ``rural area'' with a population of less than
200,000 and outside of an urbanized area).
One member of the public [FEMA-2019-0012-0004] commented that, for
the most part, the proposed changes are well thought out and stand to
reason. However, the commenter suggested that the amount in dispute
threshold allow for future adjustment based upon hyper-inflation.
Including provisions for hyper-inflation, this commenter posited, will
allow FEMA to carry out its crucial work without returning to the
rulemaking process if the dollar fluctuates in the future. A lower
threshold could subsequently overwhelm the arbitration or appeal
process.
Since the amount in dispute thresholds are statutorily set in
Section 1219 of DRRA, it is not within FEMA's discretion to change them
in this rulemaking. While FEMA appreciates the commenter's support,
FEMA did not make any changes to the regulatory text at 206.206 as a
result of the comment.
B. Population Thresholds
The DRRA defines a rural area to mean an area with a population of
less than 200,000 outside an urbanized area. The NPRM proposed to
define the term ``urbanized area'' to mean the area as identified by
the United States Census Bureau (USCB). The USCB defines an ``urbanized
area'' as an area that consists of densely settled territory that
contains 50,000 or more people.\4\ For clarity and to comply with
publication requirements found in 1 CFR chapter I, FEMA has revised the
final rule's definition of ``urbanized area'' as an area that consists
of densely settled territory that contains 50,000 or more people.
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\4\ See ``Qualifying Urban Areas for the 2010 Census,'' 77 FR
18651, Mar. 27, 2012.
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An anonymous commenter [FEMA-2019-0012-0002] supports the different
population thresholds of the NPRM. The anonymous commenter suggested
that the population requirements give all areas a fair chance of
receiving Federal assistance. FEMA appreciates the anonymous
commenter's support but, did not make any changes to the regulatory
text at 206.206 as a result of the comment.
C. ``Applicant/Subrecipient'' Different Entities Versus ``Applicant''
for All Entities
A member of the public [FEMA-2019-0012-0003] commented that FEMA
views the applicant/subrecipient as two different entities: An
``applicant'' is one that has applied for but not yet received funding,
while a ``subrecipient'' has applied for and been awarded funding. This
member of the public [FEMA-2019-0012-0003] also commented that the
definition of ''applicant'' does not include ``subrecipient'' (although
one could argue that all ``subrecipients'' are ``applicants,'' but not
all ``applicants'' are ``subrecipients,'' so the use of ``applicant''
for all entities could still be correct).
The ``applicant,'' as defined at 44 CFR 206.201(a), is a State
agency, local government, or eligible private nonprofit organization
(PNP) submitting an application to the recipient for assistance under
the recipient's grant. The ``recipient,'' as defined at 44 CFR
206.201(m), is the government to which a grant is awarded, and which is
accountable for the use of the funds provided. The ``recipient'' is
typically the State to which a grant is awarded.
In the NPRM, FEMA proposed changing the phrase ``applicant,
subrecipient, or recipient'' to ``applicant or recipient'' since the
definition of ``applicant'' at 44 CFR 206.201(a) already includes the
term ``subrecipient.'' Since an ``applicant'' submits an application to
the ``recipient'' for assistance under the recipient's grant, the
``recipient'' and the ``applicant'' are not interchangeable
[[Page 45662]]
phrases. It follows that the definition of ``applicant'' at 206.201(a)
cannot include a ``recipient,'' so FEMA disagrees with the public
commenter's [FEMA-2019-0012-0003] statement that the use of
``applicant'' for all entities could still be correct.
Therefore, FEMA did not make any changes to the regulatory text at
206.206 as a result of the comment.
D. ``Appellant'' Versus ``Applicant'' and ``Subrecipient''
A member of the public [FEMA-2019-0012-0003] also commented that
there is a difference in ``applicant'' and ``subrecipient'' per 44 CFR
206.201(a). FEMA disagrees with the statement that there is a
difference in ``applicant'' and ``subrecipient'' per 206.201(a). As
indicated above, the definition of ``applicant'' at 206.201(a) includes
``subrecipient,'' but not ``recipient.'' Therefore, FEMA did not make
any changes to the regulatory text at 206.206 as a result of the
comment.
The commenter further stated that the use of ``appellant'' allows
for both ``applicants'' and ``subrecipients'' to be represented in the
terminology. In the past, FEMA used the term ``appellant'' instead of
``applicant or recipient'' for the requirement of specifying the
provisions in Federal law, regulator, or policy in dispute. In the
NPRM, FEMA's reason for changing from ``appellant'' to ``applicant or
recipient'' was for consistency in terminology and no substantive
change was intended. Since FEMA's goal is consistency in terminology,
FEMA will not add ``appellant'' as a defined term to paragraph (a) of
44 CFR 206.206, as it could lead to confusion for the reader as to
whether it refers to an ``applicant'' or a ``recipient.'' Therefore,
FEMA did not make any changes to the regulatory text at 206.206 as a
result of the comment.
E. Other Definitions
The State DEM [FEMA-2019-0012-0008] commented that in 44 CFR
206.206(a), FEMA should define ``Regional Administrator'' because
applicants submit first appeals to the appropriate FEMA Regional office
and then submit second appeals to the Assistant Administrator for the
Recovery Directorate. The State DEM proposed to define ``Regional
Administrators'' as ``the Administrator of the Federal Emergency
Management Agency Regional Office in which the Applicant resides.''
FEMA decided against the commenter's suggested definition of
``Regional Administrator'' since 44 CFR 206.2(a)(21) already provides a
definition for ``Regional Administrator'' with general applicability
throughout part 206. Regional Administrator: An administrator of a
regional office of FEMA, or his/her designated representative. As used
in these regulations, Regional Administrator also means the Disaster
Recovery Manager who has been appointed to exercise the authority of
the Regional Administrator for a particular emergency or major
disaster.
This second sentence in the definition of Regional Administrator at
206.2(a)(21) is contrary to the structure proposed in the NPRM at
206.206, as it says that the Regional Administrator also means the
Disaster Recovery Manager. In the NPRM, the Regional Administrator/
Disaster Recovery Manager is not making the FEMA determination.
Otherwise, the submission of the first appeal to the Regional
Administrator for review would mean that the Regional Administrator
could review their own determination. Therefore, FEMA decided to add
only the first sentence of the ``Regional Administrator'' definition at
206.2(a)(21) to this final rule for consistency and clarity. So, FEMA
added the following definition of ``Regional Administrator'' to the
regulatory text: Regional Administrator means an administrator of a
regional office of FEMA, or his/her designated representative.
Both, ``Administrator'' and ``Regional Administrator'' were added
to Title V of the Homeland Security Act of 2002 by the Post-Katrina
Emergency Management Reform Act of 2006.\5\ Therefore, it makes sense
that they are defined terms under 44 CFR 206.206, as they are
statutorily mandated FEMA positions.
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\5\ Post-Katrina Emergency Management Reform Act of 2006, 109-
295, 120 Stat. 1394 (Oct. 4, 2006), 6 U.S.C. 701 note.
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The State DEM also recommended that FEMA define the term
``Assistant Administrator for the Recovery Directorate.'' FEMA chose
not to provide a definition of ``Assistant Administrator for the
Recovery Directorate'' since future FEMA reorganizations may change
that position title. Additionally, the ``Assistant Administrator for
the Recovery Directorate'' is not a FEMA statutorily mandated position.
Finally, the State DEM [FEMA-2019-0012-0008] suggested that FEMA
define ``final agency determination'' to mean the decision of FEMA as
provided through electronic transmission of a formal determination if
the applicant or recipient does not submit a first appeal within the
time limits. FEMA does not adopt the commenter's definition because the
definition in the NPRM the is a more fulsome definition which covers
all eventualities. In the NPRM, ``final agency determination'' means
the decision of FEMA, if the applicant or recipient does not submit a
first appeal within the time limits provided for in paragraph
(b)(1)(ii)(A) of proposed Sec. 206.206; or the decision of FEMA, if
the applicant or recipient withdraws the pending appeal and does not
file a request for arbitration within 30 calendar days of the
withdrawal of the pending appeal; or the decision of the FEMA Regional
Administrator, if the applicant or recipient does not submit a second
appeal within the time limits provided for in paragraph (b)(2)(ii)(A)
of proposed Sec. 206.206. For this reason, FEMA declines to adopt the
commenter's definition. Therefore, FEMA only added the definition of
``Regional Administrator'' to the regulatory text at 206.206(a) as a
result of the comment.
F. First and Second Appeals' Deadlines
Proposed paragraph 206.206(b)(1)(ii) of the NPRM addressed time
limits for first appeals. Under proposed paragraph (b)(1)(ii)(A), the
applicant may make a first appeal through the recipient within 60
calendar days from the date of the FEMA determination that is the
subject of the appeal. Moreover, the recipient must electronically
forward to the Regional Administrator the applicant's first appeal with
a recommendation within 120 calendar days from the date of the FEMA
determination that is the subject of the appeal. There is no recourse
for the applicant if the recipient misses the deadline to forward the
appeal and recommendation to the Regional Administrator. There is also
no recourse for the applicant in a second appeal where the recipient
does not make the deadline.
Several commenters--including a member of the public [FEMA-2019-
0012-0003], a State agency [FEMA-2019-0012-0007], and State DEM [FEMA-
2019-0012-0008]--sought clarification on when, exactly, the applicant's
initial 60-day deadline is triggered. For instance, is the deadline
triggered on the day the applicant views the determination [FEMA-2019-
0012-0003]? Does the deadline begin once the applicant has physically
received the determination paperwork [FEMA-2019-0012-0008]? As FEMA was
aware of this issue, the NPRM provided clarity by adding an electronic
submission requirement for both first and second appeals. This
requirement will enable FEMA to accurately track the transmittal and
receipt of appeals since they will be
[[Page 45663]]
the same date, while providing the applicant with a clear timeline for
compliance. Specifically the deadline is triggered by FEMA's
transmittal of the determination, not the date the applicant views the
determination.
Nonetheless, a member of the public [FEMA-2019-0012-0003]
questioned whether the NPRM's proposal to change the language ``after
receipt of a notice of the action that is being appealed'' to ``from
the date of the FEMA determination that is the subject of the appeal''
will actually assist FEMA with tracking. In her opinion, using the date
of the issuance of the determination, rather than the date the
``appellant'' views the determination, does not provide clarity. Since
the proposed language of the NPRM relies on the electronic submission
for appeals, it would not matter when the FEMA determination that is
subject of the appeal is viewed. With the switch to electronic
submission, the date of the FEMA determination and the date of receipt
are the same. Therefore, FEMA did not make any changes to the
regulatory text as a result of the comments.
A State DEM [FEMA-2019-0012-0008] commented that it agrees with
electronic submission to ease in tracking and ensuring timely receipt
of appeals. However, the commenter stated, applicants and recipients do
not always receive FEMA's determination on the same day as the date of
the transmission letter. This could potentially reduce the amount of
time for an applicant to appeal. In support of this comment, the State
DEM submitted an emergency (as opposed to major disaster) declaration
determination with what appeared to be a discrepancy between the date
of receipt and the date of determination, as attachments. Upon further
review, FEMA finds the discrepancy between the date of receipt and date
of determination was an administrative error or an anomaly. FEMA is
taking programmatic and technological steps to tie the date of
determination to date of the determination's transmittal, but should a
similar error or discrepancy recur in the future FEMA would use the
date of transmittal as the deadline trigger.
Nonetheless, the State DEM suggested remedy language for both first
and second appeals which would start the clock on the 60-day deadline
on the confirmed receipt of FEMA's determination. Further, the
commenter proposed language to create a rebuttable presumption in favor
of the date of receipt claimed by the applicant or recipient. Because
the NPRM proposed requiring electronic submission for both applicant
and recipient and the NPRM proposed FEMA simultaneously electronically
notify both applicant and recipient, these concerns are unfounded.
Therefore, FEMA did not make any changes to the regulatory text at
206.206(b)(1)(ii) and (b)(2)(ii) as a result of the comments.
G. First and Second Appeals' Deadlines--60/60-Day Versus 120-Day
A member of the public [FEMA-2019-0012-0003] queried: Is the NPRM
to remove the first 60-day requirement for the appellant to appeal, and
make the entire deadline 120 days regardless of when each entity
appeals so long as it is within 120 days? This simplifies the
timeliness requirement for all parties she stated, but the proposed
language is confusing as to whether the 60-day deadline remains for the
applicant. By the NPRM, she continues, the applicant could appeal on
day 120 and the recipient could forward on same that day. In this
scenario, the commenter believed the submission would remain timely.
The commenter stated that this removes some of the intent behind the
timeliness requirements for each party to responsibly review the
appeal.
The applicant's 60-day deadline remains, as the Stafford Act
requires it for appeals. See 423(a) of the Stafford Act. In order to
resolve the confusion identified by the public commenter [FEMA-2019-
0012-0003], FEMA has added regulatory text to both the first and second
appeals paragraphs of the final rule for clarity and consistency.
Specifically, FEMA replaced the second to the last sentence of the
appeals paragraphs of the final rule at 206.206(b)(1)(ii)(A) and
(b)(2)(ii)(A) with the following: ``[i]f the applicant or the recipient
do not meet their respective 60-calendar day and 120-calendar day
deadlines, FEMA will deny the appeal.'' This is consistent with current
FEMA policy. See page 40 of the Public Assistance Program and Policy
Guide,\6\ which says that ``[i]f either the Applicant or Recipient does
not meet the respective 60-day deadlines, FEMA will deny the appeal as
untimely.''
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\6\ Public Assistance Program and Policy Guide Version 4
(<a href="http://fema.gov">fema.gov</a>).
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Also in reference to the 120-day deadline, a State agency [FEMA-
2019-0012-0006] inquired: Does this mean that if the applicant appeals
to the recipient 45 days from the FEMA determination, that the
recipient still has 120 calendar days from the date of the FEMA
determination to transmit the appeal to FEMA? In the above scenario, an
applicant that appeals 45 days after its FEMA determination would then
leave the recipient with 75 days to forward the appeal to FEMA. The
NPRM is in no way extending the 120-day deadline.
A separate comment from the same State agency [FEMA-2019-0012-0007]
correctly stated that the applicant still has a firm 60-day deadline to
submit its appeal to the applicant. The commenter then inquired whether
FEMA will deny any appeal as untimely if the applicant submits its
appeal to the recipient after the 60-day deadline, but FEMA receives
the appeal within 120 days. In this scenario, the commenter is correct
that FEMA would deny this appeal as untimely. Even if the recipient
ultimately submitted the appeal to FEMA within 120 days from the date
of determination, if an applicant submits its appeal to the recipient
outside of the 60 days, it has exceeded the deadline imposed by Section
423 of the Stafford Act. As stated above, FEMA added new regulatory
text in the final rule to both the first and second appeals paragraphs
for clarity and consistency. The new language states that if the
applicant or the recipient do not meet their respective 60-calendar day
and 120-calendar day deadlines, FEMA will deny the appeal.
Finally, the State DEM [FEMA-2019-0012-0008] suggested that the
regulatory language was misleading because it implies that FEMA will
deny all first appeals it does not receive by the recipient's 120-day
deadline and is not clear that applicant's untimeliness will jeopardize
the appeal. As the scenarios above make clear, both an applicant and
recipient's untimeliness will continue to jeopardize either a first or
second appeal based upon their respective 60-calendar day and 120-
calendar day deadlines. For these reasons, FEMA made changes to the
regulatory text regarding first appeals at 206.206(b)(1)(ii)(A) and
regarding second appeals at (b)(2)(ii)(A) as a result of the comments.
H. Denial Based Upon Timeliness
The State DEM [FEMA-2019-0012-0008] objected to FEMA denying either
a first or second appeal based upon timeliness. The State DEM argued
that FEMA lacked the authority to unilaterally deny an appeal based
upon timeliness because this is not specifically permitted by the
Stafford Act. The State DEM stated that it was ``administratively
unfair'' for FEMA to deny second appeals solely based on timeliness
without considering the merits thereof.
[[Page 45664]]
The State DEM specifically proposed language prohibiting FEMA from
denying a second appeal based on untimeliness if a determination on the
merits would be in the applicant or recipient's favor. It offered
language barring FEMA from denying an otherwise timely second appeal
solely on the grounds that the relevant first appeal was untimely. To
bolster its argument, the State DEM attached an exhibit wherein FEMA
rejected a second appeal based on the first appeal being untimely even
though, the State DEM argued, FEMA incorrectly de-obligated funds
initially. Had FEMA examined the issue on the merits the argument
continues, the applicant would have prevailed.
Section 423 of the Stafford Act requires an applicant to submit an
appeal within 60 days. FEMA does not have the unilateral authority to
alter or ignore this requirement. The State DEM's suggestions would
have the effect of removing timeliness as a meaningful consideration
for appeals. Further, FEMA has no ability to extend the deadlines
listed in Section 423, just as it lacks express authority to waive
timelines. FEMA is solely implementing requirements prescribed by law.
In addition, the start of the mandatory 60-day period, the date of
FEMA's determination, and the date of the applicant and recipient's
receipt thereof should be identical with the implementation of
electronic transmission. Since electronic transmission addresses the
State DEM's concerns regarding the start of the appeals period and FEMA
cannot waive, alter, or modify the 60-day appeal deadline in the
Stafford Act, FEMA did not make any changes to the regulatory text at
206.206(b)(1)(ii)(A) and (b)(2)(ii)(A) as a result of these comments.
However, as stated above FEMA added new regulatory text in the final
rule to both the first and second appeals paragraphs for clarity and
consistency. The new language states that if the applicant or the
recipient do not meet their respective 60-calendar day and 120-calendar
day deadlines, FEMA will deny the appeal.
The State DEM [FEMA-2019-0012-0008] also suggested that the
regulatory language in 206.206(b)(3)(iii)(B)(2) of the NPRM be modified
to permit requests for arbitration from untimely appeals. This comment
and proposed language would render timeliness moot, as applicants could
make an untimely appeal and then attempt to arbitrate the rejection on
timeliness. Section 423 of the Stafford Act only permits an applicant
to submit an appeal within 60 days; FEMA does not have the authority to
alter or ignore this deadline. Consequently, FEMA did not make any
changes to the regulatory text at 206.206(b)(3)(iii)(B)(2) as a result
of these comments.
However, FEMA provided clarifying edits to 206.206(b)(3)(iii)(B)(2)
in the final rule, so that an applicant understands that if they choose
arbitration pursuant to Section 423(d) of the Stafford Act, as FEMA has
not responded to an applicant's first appeal within 180 days, then they
must withdraw the pending appeal before they file the request for
arbitration. Basically, the applicant cannot arbitrate and appeal at
the same time. Additionally, FEMA provided clarifying edits to
206.206(b)(3)(iii)(B)(2) to remove the phrase ``and the CBCA.'' FEMA
deleted this phrase, as a pending first appeal would not be pending
before the CBCA, so the applicant would have no reason to notify the
CBCA of the first appeal withdrawal.
So in the final rule, FEMA has split the first sentence of
206.206(b)(3)(iii)(B)(2) into two sentences that say if the first
appeal was timely submitted, and the Regional Administrator has not
rendered a decision within 180 calendar days of receiving the appeal,
an applicant may arbitrate the decision of FEMA. To request
arbitration, the applicant must first electronically submit a
withdrawal of the pending appeal simultaneously to the recipient and
the FEMA Regional Administrator. Plus, FEMA added clarifying language
to the last sentence of 206.206(b)(3)(iii)(B)(2) by replacing ``may''
with ``must'' and by adding the phrase ``to the recipient, the CBCA,
and FEMA'' after arbitration. So, 206.206(b)(3)(iii)(B)(2) in the final
rule says that the applicant must then submit a request for arbitration
to the recipient, the CBCA, and FEMA within 30 calendar days from the
date of the withdrawal of the pending appeal. FEMA wants to clarify
that if an applicant withdraws a first appeal, then the applicant must
submit a request for arbitration within 30 calendar days. If the
applicant does not follow the requirements of 206.206(b)(3)(iii)(B)(2),
then the applicant's request for arbitration will be denied for
timeliness.
I. Simultaneously Provide Decisions to Applicants & Recipients
The State DEM [FEMA-2019-0012-0008] commented that it agrees with
electronic submission to ease in tracking and ensuring timely receipt
of appeals, and suggested FEMA also provide its decisions
electronically to both the applicant and recipient simultaneously. This
is the course of action that FEMA proposed in the NPRM's
206.206(b)(1)(iii); therefore, FEMA did not make any changes to the
regulatory text as a result of this comment.
J. FEMA Exceeds 90-Day Deadline
A State DEM [FEMA-2019-0012-0008] commented that in both paragraphs
206.206(b)(1)(ii)(C) and (b)(2)(ii)(C) of the NPRM, FEMA allows itself
90 days from receipt of the appeal, rather than the date of the appeal
itself, to respond per Section 423(b) of the Stafford Act. The State
DEM further suggests regulatory text changes imposing penalties for any
response beyond the 90-day deadline.
First and foremost, the date an applicant makes an appeal is not
the same date FEMA receives the appeal because it must first pass
through the recipient. In addition, though FEMA endeavors to render all
appeals decisions within 90 days, it is an agile agency with emergent
responsibilities. Nevertheless, FEMA remains stewards of Federal monies
and must perform a thorough review to ensure grants follow the law.
This constant conflict demands an ongoing shift of resources and
priorities. With the final rule's implementation of electronic
transmission, FEMA determinations should be received electronically
when issued. The Regional Administrator will provide electronic notice
of the disposition of the appeal to the applicant and the recipient
thereby avoiding delays inherent in methods such as carrier delivery.
FEMA will know the date received as it will be the same as the
electronic transmission date. Lastly, FEMA notes that, pursuant to
Section 423(d) of the Stafford Act, if the agency fails to respond to
an applicant's first appeal within 180 days, said applicant may choose
to arbitrate the dispute provided they meet all the other arbitration
threshold requirements. Consequently, FEMA did not make any changes to
the regulatory text at 206.206(b)(1)(ii)(C) and (b)(2)(ii)(C) as a
result of the comments.
K. 90-Day Deadline for Technical Information
Proposed paragraphs 206.206(b)(1)(iii) and (b)(2)(iii) provide
that, for highly technical matters, the Regional Administrator may
submit the appeal to an independent scientific or technical person/
group having expertise in the subject matter of the appeal for advice
or recommendation. The period of this review may be in addition to
other allotted time periods.
In lieu of the above, a State DEM [FEMA-2019-0012-0008] commented
that FEMA does not have the authority
[[Page 45665]]
to expand the time it has to render a determination on a first or
second appeal. Moreover, the State DEM argued, the time taken to seek
technical advice should be deducted from FEMA's allotted 90 days, as
FEMA should have already conducted a proper full technical review prior
to making a final agency determination.
FEMA, as the steward of Federal monies, must always pursue the
public's best interest by ensuring that all grants follow the law. For
highly technical matters, the Agency has a responsibility to seek
outside guidance if it lacks the requisite expertise inhouse. This will
allow the Agency to make the correct decision and serve the greater
good of distributing equitable disaster assistance. Moreover, pursuant
to Section 423(d) of the Stafford Act, if FEMA fails to respond to an
applicant's first appeal within 180 days, said applicant may choose to
arbitrate the dispute provided they meet all the other arbitration
threshold requirements. For these reasons, FEMA did not alter the
regulatory text at 206.206(b)(1)(iii) and (b)(2)(iii) as a result of
the comments.
L. 30 Days To Provide Additional Information
In the NPRM, under paragraphs 206.206(b)(1)(ii)(B) and
(b)(2)(ii)(B), FEMA proposed allowing the recipient only 30-calendar
days to provide any additional information to the Regional
Administrator; instead of having the Regional Administrator include the
date by which the information must be provided. Quantifying the period
for additional information better allows FEMA to issue timely
determinations on first and second appeals.
A member of the public [FEMA-2019-0012-0003] commented that the
proposed change allows an appellant to provide additional information
even 30 days after the appeal submittal. This change would not serve
the public's interest of FEMA issuing timely determinations on first
appeal she argued. In this instance, FEMA would be required to delay
its adjudication by 30 days while it waits for the window of
opportunity to submit additional information on a first appeal to pass.
Thus, if this change was implemented, an appellant would have 150 days
to make a complete appeal. While the member of the public [FEMA-2019-
0012-0003] is correct that the new 30-day deadline may add to the
appeals timeline, it could also shorten the timeline of future appeals
by quantifying the deadline. FEMA intends to provide a fair deadline
for additional information. Therefore, FEMA did not make any changes to
the regulatory text at 206.206(b)(1)(ii)(B) and (b)(2)(ii)(B) as a
result of the comment.
M. Untimeliness and Imposition of Penalties Upon FEMA
The State DEM [FEMA-2019-0012-0008] proposed the imposition of
penalties on FEMA when it exceeds the 90-day deadline for requesting
additional information for both first and second appeals. This
commenter also suggested that if FEMA misses its deadline, recipients
and applicants should not be held to their deadlines, and FEMA should
be barred from requesting information to substantiate timeliness. The
State DEM also proposed a requirement for FEMA to provide monthly
status updates concerning each appeal to the applicant and recipient.
As noted above, the Stafford Act does not include any remedies or
corrective actions in the event that FEMA fails to meet the 90-day
deadline to decide appeals. However, FEMA has a public assistance
second appeals tracker available to the public at <a href="https://www.fema.gov/about/openfema/data-sets/fema-public-assistance-second-appeals-tracker">https://www.fema.gov/about/openfema/data-sets/fema-public-assistance-second-appeals-tracker</a>.
With regards to the State DEM's [FEMA-2019-0012-0008] suggestion
that untimeliness on FEMA's part should relieve applicants and
recipients from complying with their own deadlines. Section 423 of the
Stafford Act requires an applicant to submit an appeal within 60 days;
FEMA does not have the authority to alter or ignore this requirement.
FEMA does have a duty to be a responsible steward of public monies and
must therefore conduct a thorough review of all grants to ensure
compliance with the law, even if that review happens to exceed the 90-
day deadline provided for disposition of appeals. Finally, FEMA will
not impose additional responsibilities upon itself, such as status
updates, outside of what is prescribed by law. Consequently, FEMA did
not make any changes to the regulatory text as a result of the comment.
N. Implementation
A State DEM [FEMA-2019-0012-0008] commented that 206.206(b)(1)(v)
and (b)(2)(v) do not have deadlines or timelines for implementing a
successful appeal. The State DEM suggested that FEMA adopt an actual
deadline to avoid delaying project development without explanation to
the applicant or recipient. The State DEM suggested language stating
that if the Regional Administrator grants an appeal, FEMA must begin
implementing the action within 30 days of the determination date, or at
a minimum, provide the applicants and recipient with a status update
indicating when the action would be implemented. In a separate comment,
the agency also suggested requiring the Assistant Administrator for the
Recovery Directorate to perform this action regarding second appeals.
FEMA finds the proposed language to be unnecessary because it
effectively requires FEMA to impose requirements on itself not
otherwise imposed by Congress. FEMA trusts the discretion of its
Regional Administrators \7\ to make appropriate decisions on addressing
successful appeals. Also, providing status updates would unintendedly
affect FEMA's ability to meet timelines for other actions. Therefore,
FEMA did not make any changes to the regulatory text at
206.206(b)(1)(v) and (b)(2)(v) as a result of the comment.
---------------------------------------------------------------------------
\7\ The Assistant Administrator for the Recovery Directorate
will direct the Regional Administrator to take appropriate
implementing action(s) regarding successful second appeals.
---------------------------------------------------------------------------
O. Content of Arbitration Request
A State DEM [FEMA-2019-0012-0008] commented on
206.206(b)(3)(iii)(C), which states that a request for arbitration must
contain a written statement that specifies the amount in dispute, all
documentation supporting the position of the applicant, the disaster
number, and the name and address of the applicant's authorized
representative or counsel. Additional supplemental documentation is
permitted as ordered by the CBCA.
The State DEM believed the language was confusing because ``all
documentation'' implied applicants could not submit supplemental
information within a request for arbitration. The State DEM suggested
removing the word ``all'' and adding language to allow supplemental
documentation as requested by the CBCA. FEMA notes that the CBCA
already has rules on supplemental materials located at 48 CFR 6106.608,
Evidence; timing [Rule 608]. Accordingly, FEMA did not make any changes
to the regulatory text at 206.206(b)(3)(iii)(C) as a result of the
comment.
P. Emergency Versus Major Disaster Declaration Determinations
As mentioned before, the State DEM [FEMA-2019-0012-0008] submitted
an emergency declaration determination as their second and third
attachment to their comment related to timeliness of appeals. In the
third attachment, FEMA cites to 44 CFR 206.206 for the authority to
appeal this emergency declaration determination. During the course of
adjudicating this comment, FEMA
[[Page 45666]]
reviewed how the NPRM discussed emergency versus major disaster
determinations.
In the NPRM, FEMA limited arbitrations to major disaster
declaration determinations at proposed 206.206(b)(3)(i)(A) since the
right of arbitration is housed in paragraph (d) of Section 423 of the
Stafford Act. Section 423 is under Title IV of the Stafford Act, which
is entitled ``Major Disaster Assistance Programs.'' Also, subparagraph
(d)(5)(A) of 423 of the Stafford Act states that the applicant shall
submit to the arbitration process established under the authority
granted under Section 601 of Public Law 111-5. FEMA's corresponding
regulations under 206.209 are entitled ``Arbitration for Public
Assistance determinations related to Hurricanes Katrina and Rita (Major
disaster declarations DR-1603, DR-1604, DR-1605, DR-1606, and DR-
1607).'' Therefore, FEMA limited arbitration in the NPRM to major
disaster declarations.
Yet, there was no corresponding limitation in the appeals section
of the NPRM because applicants may appeal emergency declaration
decisions. As a result of the deliberation surrounding a response to
this comment, FEMA did discover that the NPRM imprecisely stated in the
Executive Orders 12866 and 13563 section that ``[t]his proposed rule
does not apply to emergency disaster declarations.'' Rather, it should
have stated that ``[t]he Regulatory Evaluation does not include a
discussion of emergency disaster declarations; since, arbitration is
only available to dispute the determinations of major disaster
declarations.'' There was no need to analyze the cost for applicants to
appeal determinations of emergency disaster declarations in the NPRM,
since FEMA currently allows for such and the NPRM did not limit appeals
to major disaster declaration determinations. FEMA did not make any
changes to the regulatory text at 206.206 as a result of this comment
but it did update the Regulatory Evaluation as noted above.
III. Summary of Other Changes
The NPRM at 44 CFR 206.206(a) proposed to define the term
``urbanized area'' to mean the area as identified by the United States
Census Bureau (USCB). The USCB defines an ``urbanized area'' as an area
that consists of densely settled territory that contains 50,000 or more
people. For clarity and to comply with publication requirements found
in 1 CFR chapter I, FEMA has revised the final rule's definition of
``urbanized area'' as an area that consists of densely settled
territory that contains 50,000 or more people.
FEMA realized that the NPRM at 206.206 was silent regarding the
recipient-related first and second appeal time limits. Section 423(a)
of the Stafford Act allows appeals within 60 days. Therefore, in the
first appeal time limits portion of the final rule FEMA aligned with
this requirement by adding the following sentence at the end of
206.206(b)(1)(ii)(A): A recipient may make a recipient-related first
appeal within 60 calendar days from the date of the FEMA determination
that is the subject of the appeal and must electronically submit their
first appeal to the Regional Administrator. FEMA also had to make a
corresponding addition to the second appeal time limits portion of the
final rule by adding the following sentence to the end of
206.206(b)(2)(ii)(A): If the Regional Administrator denies a recipient-
related first appeal in whole or in part, the recipient may make a
recipient-related second appeal within 60 calendar days from the date
of the Regional Administrator's first appeal decision and the recipient
must electronically submit their second appeal to the Assistant
Administrator for the Recovery Directorate.
FEMA realized that the NPRM at 206.206(b)(3)(i)(A) does not follow
the language of Section 423(d)(1) of the Stafford Act, which says that
an applicant for assistance may request arbitration to dispute the
eligibility for assistance or repayment of assistance. Rather, the NPRM
at 206.206(b)(3)(i)(A) states that an applicant may request arbitration
if there is a disputed agency determination. Therefore, in the final
rule FEMA is removing the phrase ``disputed agency determination'' from
paragraph 206.206(b)(3)(i)(A) and adding ``dispute of the eligibility
for assistance or of the repayment of assistance'' in its place.
FEMA also realized that the NPRM at 206.206(b) does not follow the
language of Section 423 of the Stafford Act, which says that an
applicant for assistance may request arbitration to dispute the
eligibility for assistance or repayment of assistance. Rather, the NPRM
at 206.206(b) says that an eligible applicant or recipient may appeal
or an eligible applicant may arbitrate any determination previously
made related to an application for or the provision of PA according to
the procedures of this section. Because the regulatory text does not
follow the statutory language, FEMA is removing the phrase ``or an
eligible applicant may arbitrate'' from 206.206(b) and FEMA is adding a
second sentence to 206.206(b) that says: ``An eligible applicant may
request arbitration to dispute the eligibility for assistance or
repayment of assistance.''
FEMA is making these technical changes because FEMA does not have
the discretion to deviate from statutorily imposed restrictions.
Section 423(a) of the Stafford Act allows an applicant to appeal any
decision regarding eligibility for, from, or amount of assistance.
Whereas, Section 423(d)(1) of the Stafford Act allows an applicant to
arbitrate the eligibility for assistance or repayment of assistance.
Since Congress did not use the same language, there is a difference
between what an applicant can arbitrate and what an applicant can
appeal, which FEMA must delineate in its regulations at 44 CFR 206.206.
Since these requirements are statutorily imposed and FEMA has no
discretion FEMA may make these edits as technical changes in the final
rule.
Additional technical changes to the final rule are at 44 CFR
206.206(b)(1)(iv)(B)(1) and (b)(2)(iv)(B)(1) as the Office of
Management and Budget (OMB) revised the cross references from 2 CFR
200.338 to 2 CFR 200.339; as, OMB revised sections of their Guidance
for Grants and Agreements. (See 85 FR 49506, Aug. 13, 2020.)
The final rule also includes corrections of typographical errors
and other non-substantive stylistic changes from the NPRM. FEMA made a
typographical error under the Executive Orders 12866 and 13563 section
Impartiality heading. In the NPRM, the Executive Orders 12866 and 13563
section stated that CBCA found in favor of the applicant fully or
partially in less than 20 percent of the time. The ``20 percent'' was a
typographical error. It should have read ``55 percent'' to align with
the correct data, which was listed on Table 13 of the NPRM. In this
final rule, the data for the Executive Orders 12866 and 13563 section
has been updated with the most recent 10-years of available data at the
time of the analysis. Therefore, FEMA has replaced ``less than 20''
with ``about 13'' in the final rule to make sure that the narrative of
the percentage that the CBCA found in favor of the applicant fully or
partially aligns with Table 13.
The final rule also includes other non-substantive changes from the
NPRM. For instance, FEMA added a footnote to the Executive Orders 12866
and 13563 section under the Cost to Government/FEMA heading that ``FEMA
estimates that we could need up to four expert witnesses. FEMA's expert
witnesses may or may not speak at the hearing. Additionally, FEMA may
hire an expert witness so that FEMA can consult with
[[Page 45667]]
them about the subject matter.'' The footnote adds clarity to the
statement that FEMA assumes that it would use four expert witnesses per
case. This change is for clarification purposes only.
In this final rule, FEMA added onto footnote 11 in the Executive
Orders 12866 and 13563 section under the first bullet point under the
Assumptions heading that ``[i]n the final rule, the data for the
Executive Orders 12866 and 13563 section has been updated with the most
recently available data at the time of the analysis.'' The edits to
footnote 11 clarifies that the Executive Orders 12866 and 13563 section
contains the most recent data at the time of the analysis and that the
figures will be in the most recent dollars. For the NPRM, 2018 dollars
were used based off the Bureau of Labor Statistics (BLS) Consumer Price
Index (CPI) data. In the final rule, 2019 dollars were used based off
the BLS CPI data as it became available. This addition is for
clarification purposes only.
Another non-substantive stylistic change from the NPRM was made to
the definition of ``applicant'' and ``recipient'' in 206.206(a).
Instead of saying that the ``applicant'' or the ``recipient'' ``refers
to,'' the final rule regulatory text says that the ``applicant'' or the
``recipient'' ``has the same meaning as.'' So, the definitions in the
final rule regulatory text are: Applicant has the same meaning as the
definition at Sec. 206.201(a) and Recipient has the same meaning as
the definition at Sec. 206.201(m).
The final non-substantive stylistic and grammar changes from the
NPRM were made to 206.206(c) in the final rule. First, FEMA split the
paragraph into two subparagraphs based on whether the subparagraph
dealt with the finality of a FEMA decision or a CBCA decision. Then,
FEMA corrected a grammar error in the first sentence of 206.206(c)(1)
by revising ``constitute'' to ``constitutes.'' Since, FEMA split
paragraph 206.206(c) from the NPRM into two subparagraphs in the final
rule, FEMA had to include that final decisions are not subject to
further administrative review in both subparagraphs, as it applies to
the finality of both FEMA and CBCA decisions.
IV. Regulatory and Statutory Analyses
A. Executive Order 12866, as Amended, Regulatory Planning and Review
and Executive Order 13563, Improving Regulation and Regulatory Review
Executive Orders 12866 (``Regulatory Planning and Review'') and
13563 (``Improving Regulation and Regulatory Review'') direct agencies
to assess the 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).
Executive Order 13563 emphasizes the importance of quantifying both
costs and benefits, of reducing costs, of harmonizing rules, and of
promoting flexibility.
OMB has designated this rule as a non-significant regulatory
action, under section 3(f) of Executive Order 12866. Accordingly, OMB
has not reviewed it.
Need for Regulatory Action
When FEMA determines that an applicant or recipient is ineligible
for PA funding, or if the applicant or recipient disputes the amount
awarded, FEMA has implemented a process to appeal the decision. First,
the applicant or recipient can appeal to the FEMA Regional
Administrator (RA), who will make a determination on the appeal. If the
applicant or recipient does not submit a second appeal of the RA's
determination, the result of the first appeal is the final agency
determination. If the applicant or recipient is not satisfied with the
result of the first appeal, they can submit a second appeal to the FEMA
Assistant Administrator for the Recovery Directorate. The result of the
second appeal is a final decision of FEMA.
This rule implements provisions for arbitration in lieu of a second
appeal, or in cases where an applicant has had a first appeal pending
with FEMA for more than 180 calendar days. Applicants choosing
arbitration would have their case heard by a panel of judges with the
CBCA. A decision by the majority of the CBCA panel constitutes a final
decision that would be binding on all parties. Final decisions would
not be subject to further administrative review.
Pursuant to 42 U.S.C. 5189a, as amended by Section 1219 of the
DRRA, to request arbitration, an applicant (1) must have a dispute
arising from a disaster declared after January 1, 2016; (2) must be
disputing an amount that exceeds $500,000 (or $100,000 for an applicant
in a ``rural area'' with a population of less than 200,000 and outside
of an urbanized area); and, (3) must have submitted a first appeal and
has either received a denial of the first appeal or has not received a
decision after 180 calendar days.
This final rule will directly affect applicants or recipients
disputing FEMA PA eligibility determinations or disputing the amount
awarded for PA projects. Applicants are required to submit appeals
through their State, or in the case of a Tribal declaration,\8\ their
Tribal government (recipients). The recipient will then forward the
request to the FEMA Regional Administrator, along with a recommendation
for a first appeal.
---------------------------------------------------------------------------
\8\ Tribes may choose to apply for PA independently as a
recipient (tribal declaration) or may submit through their State as
a subrecipient.
---------------------------------------------------------------------------
If an applicant has not received a decision on their first appeal
after 180 days and meets the other two previously-outlined criteria,
they may withdraw the first appeal and request arbitration.
Alternatively, if the applicant does not agree with the Regional
Administrator's decision on the first appeal, they may either submit a
second appeal to the FEMA Assistant Administrator for the Recovery
Directorate or request arbitration. A panel of judges with the CBCA
would hear any arbitration cases. The applicant would send a
representative and possibly expert witnesses to the arbitration
hearing. The recipient would also send a representative to support the
applicant. FEMA representatives and expert witnesses would also attend
the hearing to defend FEMA's determination in the case of an applicant
not receiving the first appeal decision within 180 days or to defend
FEMA's first appeal decision.
The final rule will codify regulations for the arbitration process
as directed by 42 U.S.C. 5189a(d)(5). Applicants are eligible for
arbitration for disputes arising from major disasters declared on or
after January 1, 2016. This process is already available, and eligible
applicants have been notified of this option.\9\
---------------------------------------------------------------------------
\9\ On December 18, 2018, FEMA implemented section 1219 of DRRA
by posting a Fact Sheet on its website. After CBCA published their
March 5, 2019 proposed rule, see 84 FR 7861, FEMA updated the:
Section 1219 Public Assistance Appeals and Arbitration Fact Sheet
(3-27-19). After CBCA finalized their rule on June 21, 2019, see 84
FR 29085, FEMA again updated the Fact Sheet. The current Fact Sheet
can be found at: <a href="https://www.fema.gov/sites/default/files/2020-07/fema_DRRA-1219-public-assistance-arbitration-right_fact-sheet.pdf">https://www.fema.gov/sites/default/files/2020-07/fema_DRRA-1219-public-assistance-arbitration-right_fact-sheet.pdf</a>.
(2-20). Accessed June 8, 2021.
---------------------------------------------------------------------------
As amended by Section 1219 of the DRRA, 42 U.S.C. 5189a(d) names
the CBCA as the entity responsible for conducting these arbitrations.
The CBCA has promulgated regulations at 48 CFR part 6106 establishing
its arbitration procedures for such purpose.\10\
---------------------------------------------------------------------------
\10\ 48 CFR part 6101, Rules of Procedure of the Civilian Board
of Contract Appeals, also covers PA arbitrations.
---------------------------------------------------------------------------
This final rule establishes a 60-calendar day deadline for
submitting
[[Page 45668]]
requests for arbitration (Sec. 206.206(b)(3)(iii)(B)) so that
submission time limits for second appeals and arbitrations are the
same. FEMA believes that there should be consistency between the time
to request arbitration and the time to submit second appeals for
administrative ease and to reduce potential confusion amongst
applicants.
Affected Population
The final rule will affect disputes from PA applicants arising from
major disaster declarations. Specifically, applicants that (1)
submitted a first appeal and received a negative decision, or, (2) have
a first appeal pending for more than 180 days and wish to withdraw the
appeal in favor of arbitration. Applicants may only request arbitration
for disputes in excess of $500,000, or $100,000 in rural areas, and for
disputes that arise from major disasters declared on or after January
1, 2016.
Summary of Regulatory Changes
FEMA is revising its PA appeals regulation at 44 CFR 206.206 to add
in the new right to arbitration under DRRA, in conjunction with some
revisions to the appeals process. DRRA added arbitration as a permanent
alternative to a second appeal under the PA Program, or for applicants
that have had a first appeal pending with FEMA for more than 180
calendar days that may withdraw such appeal and submit a request for
arbitration, provided the dispute is in excess of $500,000, or $100,000
in rural areas, and for disputes that arise from major disasters
declared on or after January 1, 2016. The other major revisions to 44
CFR 206.206 include adding definitions; adding subparagraphs to clarify
what actions FEMA may take and will not take while an appeal is pending
and state that FEMA may issue separate guidance as necessary, similar
to current 44 CFR 206.209(m); adding a finality of decision paragraph;
requiring electronic submission for appeals and arbitrations documents;
and clarifying overall time limits for first and second appeals.
In the final rule, a non-substantive stylistic change from the NPRM
was made to the definition of ``applicant'' and ``recipient'' in Sec.
206.206(a). Instead of saying that the ``applicant'' or the
``recipient'' ``refers to,'' the final rule regulatory text says that
the ``applicant'' or the ``recipient'' ``has the same meaning as.'' So,
the definitions in the final rule regulatory text are: Applicant has
the same meaning as the definition at Sec. 206.201(a) and Recipient
has the same meaning as the definition at Sec. 206.201(m).
In this final rule, FEMA is adding a definition of Regional
Administrator and making changes to the regulatory text regarding first
appeals and second appeals at Sec. 206.206(b)(1)(ii)(A) and
(b)(2)(ii)(A) as a result of the 60-day appeals deadline comments.
Additionally, in this final rule, FEMA is making technical
revisions at Sec. Sec. 206.206(b) and 206.206(b)(3)(i)(A) to align the
regulatory text with the dispute of the eligibility for assistance or
repayment of assistance language of Section 423(d)(1) of the Stafford
Act.
FEMA realized that the NPRM at Sec. 206.206 was silent regarding
the recipient-related first and second appeal time limits. Section
423(a) of the Stafford Act allows appeals within 60 days. Therefore, in
the first appeal time limits portion of the final rule FEMA aligned
with this requirement by adding the following sentence at the end of
Sec. 206.206(b)(1)(ii)(A): A recipient may make a recipient-related
first appeal within 60 calendar days from the date of the FEMA
determination that is the subject of the appeal and must electronically
submit their first appeal to the Regional Administrator. FEMA also had
to make a corresponding addition to the second appeal time limits
portion of the final rule by adding the following sentence to the end
of Sec. 206.206(b)(2)(ii)(A): If the Regional Administrator denies a
recipient-related first appeal in whole or in part, the recipient may
make a recipient-related second appeal within 60 calendar days from the
date of the Regional Administrator's first appeal decision and the
recipient must electronically submit their second appeal to the
Assistant Administrator for the Recovery Directorate. This regulatory
change is not expected to have a significant economic impact.
FEMA provided clarifying edits to Sec. 206.206(b)(3)(iii)(B)(2) in
the final rule, so that an applicant understands that if they choose
arbitration pursuant to Section 423(d) of the Stafford Act, as FEMA has
not responded to an applicant's first appeal within 180 days, then they
must withdraw the pending appeal before they file the request for
arbitration. Basically, the applicant cannot arbitrate and appeal at
the same time. Plus, FEMA provided clarifying edits to Sec.
206.206(b)(3)(iii)(B)(2) to remove the phrase ``and the CBCA.'' FEMA
deleted this phrase, as a pending first appeal would not be pending
before the CBCA, so the applicant would have no reason to notify the
CBCA of the first appeal withdrawal.
For clarity and to comply with publication requirements found in 1
CFR chapter I, FEMA has revised the final rule's definition of
``urbanized area'' as an area that consists of densely settled
territory that contains 50,000 or more people.
Additional technical changes to the final rule are at 44 CFR
206.206(b)(1)(iv)(B)(1) and (b)(2)(iv)(B)(1) as the Office of
Management and Budget (OMB) revised the cross references from 2 CFR
200.338 to 2 CFR 200.339; as, OMB revised sections of their Guidance
for Grants and Agreements. (See 85 FR 49506, Aug. 13, 2020.)
So in the final rule, FEMA has split the first sentence of Sec.
206.206(b)(3)(iii)(B)(2) into two sentences that say if the first
appeal was timely submitted, and the Regional Administrator has not
rendered a decision within 180 calendar days of receiving the appeal,
an applicant may arbitrate the decision of FEMA. To request
arbitration, the applicant must first electronically submit a
withdrawal of the pending appeal simultaneously to the recipient and
the FEMA Regional Administrator. This regulatory change will not have
an economic impact.
FEMA also added clarifying language to the last sentence of Sec.
206.206(b)(3)(iii)(B)(2) by replacing ``may'' with ``must'' and by
adding the phrase ``to the recipient, the CBCA, and FEMA'' after
arbitration. So, Sec. 206.206(b)(3)(iii)(B)(2) in the final rule says
that the applicant must then submit a request for arbitration to the
recipient, the CBCA, and FEMA within 30 calendar days from the date of
the withdrawal of the pending appeal. FEMA wants to clarify that if an
applicant withdraws a first appeal, then the applicant must submit a
request for arbitration within 30 calendar days. If the applicant does
not follow the requirements of Sec. 206.206(b)(3)(iii)(B)(2), then the
applicant's request for arbitration will be denied for timeliness. This
regulatory change will not have an economic impact.
The final non-substantive stylistic and grammar changes from the
NPRM were made to Sec. 206.206(c) in the final rule. First, FEMA split
the paragraph into two subparagraphs based on whether it dealt with the
finality of a FEMA decision or a CBCA decision. Then, FEMA corrected a
grammar error in the first sentence of Sec. 206.206(c)(1) by revising
``constitute'' to ``constitutes.'' Since, FEMA split paragraph
206.206(c) from the NPRM into two subparagraphs in the final rule, FEMA
had to include that final decisions are not subject to further
[[Page 45669]]
administrative review in both subparagraphs, as it applies to the
finality of both FEMA and CBCA decisions.
Assumptions
This analysis used the following assumptions:
<bullet> All monetary values are presented in 2019 dollars. FEMA
used the Bureau of Labor Statistics (BLS) Consumer Price Index for All
Urban Consumers (CPI-U): U.S. city average, all items, by month, Annual
Average as published December 2019.\11\
---------------------------------------------------------------------------
\11\ Historical Consumer Price Index for All Urban Consumers
(CPI-U): U.S. city average, all items, by month. Bureau of Labor
Statistics: Consumer Price Index 2019. Accessed October 23, 2020.
<a href="https://www.bls.gov/cpi/tables/supplemental-files/archive-2019.zip">https://www.bls.gov/cpi/tables/supplemental-files/archive-2019.zip</a>.
In the final rule, the data for the Executive Orders 12866 and 13563
section has been updated with the most recently available data at
the time of the analysis.
---------------------------------------------------------------------------
<bullet> This analysis does not include a discussion of emergency
disaster declarations; since, arbitration is only available to dispute
the determinations of major disaster declarations.\12\
---------------------------------------------------------------------------
\12\ The NPRM incorrectly stated in the Executive Orders 12866
and 13563 section that ``[t]his proposed rule does not apply to
emergency disaster declarations.'' The NPRM should have stated that
here was no need to the cost for applicants to appeal determinations
of emergency disaster declarations because FEMA currently allows for
such and the NPRM did not limit appeals to major disaster
declaration determinations.
---------------------------------------------------------------------------
<bullet> FEMA assumed the length of time for an arbitration case is
based on the hearing location.
<bullet> FEMA used 2019 wage rates for all parties involved in
arbitration cases.
Baseline
Following guidance in OMB Circular A-4, FEMA assessed the impacts
of this final rule against a pre-statutory baseline. The pre-statutory
baseline is an assessment of what the world would look like if the
relevant statute(s) had not been adopted. In this instance, FEMA has
been accepting arbitration cases since the implementation of DRRA, and
retroactive to January 1, 2016. Since the statute has already been
implemented and because this rule is not making additional substantive
changes, the rule has no cost or benefits related to the new right of
arbitration under a no-action baseline. The costs, benefits, and
transfers of this rule are measured against the pre-statutory baseline.
The benefit of this rule is making information publicly available in
the CFR for transparency and to prevent any confusion on the most up-
to-date arbitration process.
Currently, FEMA has no permanent regulations for arbitrations
outside of Hurricanes Katrina and Rita. Since the passage of the DRRA,
certain PA applicants under declarations since January 1, 2016 may
request arbitration pursuant to 42 U.S.C. 5189a(d). On June 21, 2019,
CBCA published a final rule (see 84 FR 29085) and FEMA has published a
corresponding fact sheet. Between January 1, 2016 and November 9, 2020,
FEMA received 20 requests for arbitration.\13\ Three of these cases are
still in progress, so FEMA does not have available data on the outcome
of these cases. Of the 17 closed cases, FEMA prevailed in 10 cases, the
applicant prevailed in 4 cases, and the applicant withdrew from the
arbitration process prior to a decision in 3 cases. These figures will
change as FEMA continues to receive arbitration requests.
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\13\ The number of arbitration requests was provided by FEMA's
Office of Chief Counsel Disaster Disputes Branch as of November 9,
2020.
---------------------------------------------------------------------------
While arbitration is available for disaster declarations
retroactive to January 1, 2016, the process did not become available to
applicants until FEMA published guidance in December 2018, and FEMA did
not begin receiving arbitration requests until March 7, 2019. This
means that FEMA only has 19 months of historical data, and therefore,
FEMA relied on older arbitration regulations as a proxy for the
expected number of arbitration cases arising out of this final rule.
FEMA previously had regulations permitting arbitrations arising
from disaster declarations for Superstorm Sandy. No applicants
requested arbitration pursuant to these regulations. The authority for
these arbitrations has sunset and FEMA has since removed the
regulations. FEMA has regulations, at 44 CFR 206.209, permitting
arbitrations arising from disaster declarations for Hurricanes Katrina
and Rita. This regulation is only available for PA applicants under
Hurricane Katrina and Rita disaster declarations. The number of
arbitrations submitted under this authority and the process relied on
to conduct these arbitrations provide insight to project the number of
arbitration cases in this final rule. While the Katrina/Rita
arbitration regulations have some key differences from this final
regulation, such as time frames and allowing applicants to request
arbitration in lieu of first appeals, it is the best historical data
that FEMA has available to estimate the number of expected arbitration
cases for this final rule.
FEMA recognized that the regulations at 44 CFR 206.209 have a 30-
day time limit for submitting arbitration requests; whereas, this final
rule has a 60 calendar-day time limit for arbitrations. FEMA was not
able to estimate the impact these additional 30 days may have on the
number of arbitrations submitted.
Number of Potential Arbitration Cases
In addition to reviewing the limited historical data available on
the 20 arbitration cases, FEMA also examined the number of arbitrations
submitted from the Hurricane Katrina and Rita disasters pursuant to 44
CFR 206.209, in lieu of filing a first appeal, from 2010 through 2019
to derive an estimate of the number of arbitration cases that
applicants might submit per year pursuant to 42 U.S.C. 5189a(d).
Pursuant to 42 U.S.C. 5189(d)(5)(A), arbitrations authorized by the
DRRA must follow the process established in 44 CFR 206.209 for Katrina
and Rita arbitrations, so FEMA relied on the annual average percentage
of cases submitted under this regulation as a basis for estimating the
number of cases that would arise for this final rule. This analysis was
conducted using data from 2010 through 2019.\14\ Applicants could
arbitrate in lieu of a first appeal only if the amount of the project
was greater than $500,000.\15\ During this period, applicants submitted
a total of 73 arbitrations and a total 225 first appeals.\16\ From this
available data, applicants chose arbitration in lieu of a first appeal
32 percent of the time ((73 / 225) x 100 = approximately 32 percent).
---------------------------------------------------------------------------
\14\ The proposed rule stated that ``The authority to arbitrate
in lieu of a filing a first appeal for Hurricanes Katrina and Rita
became available in February 2009 and 2017 is the latest calendar
year where complete data was available at the time of this
analysis.'' Review under the Executive Orders 12866 and 13563
section in the proposed rule was conducted with data available at
the time. FEMA typically uses 10 years of historical data for their
analysis. However, 10 years of historical data was not available at
the time of the analysis of the proposed rule. For this final rule,
FEMA was able to use 10 years of historical data, 2010 through 2019.
Hurricane Katrina and Rita occurred in 2005. FEMA notes that as time
passes, fewer applicants are submitting requests for public
assistance each year, as over 15 years has passed since the Katrina/
Rita declarations.
\15\ Please note that arbitration cases for Hurricanes Katrina
and Rita are not bound by a threshold for rural areas as is this
rule. FEMA does not know if this limitation will result in more or
less cases submitted.
\16\ Data on appeals and arbitrations is provided by FEMA's
Office of Chief Counsel Disaster Disputes Branch. Not all these
first appeals would have been eligible for arbitration. To be
eligible for arbitration, the amount in dispute would have had to
have been greater than $500,000. FEMA does not have amount in
dispute data available for these cases, so the arbitration
percentage may be overstated.
---------------------------------------------------------------------------
Pursuant to 42 U.S.C. 5189(d)(5)(B), arbitration is authorized by
the DRRA in lieu of a second appeal where the dispute is more $500,000,
or $100,000 for rural areas. For second appeals
[[Page 45670]]
estimates, FEMA looked at all PA appeals from 2010 through 2019, rather
than just the appeals resulting from Hurricanes Katrina and Rita since
a second appeal was available to all applicants. FEMA found that there
were 874 second appeals submitted.\17\ Of that total, FEMA had data on
the amount in dispute for 751 appeals. FEMA applied the urban/rural and
minimum project amount requirements to these appeals and found that 353
or 47 percent would have been eligible for arbitration under this final
rule ((353 / 751) x 100 = approximately 47 percent).\18\
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\17\ During the period of 2010-2019, 874 second level appeals
were submitted. FEMA has amount in dispute data for 751 cases. FEMA
does not have the amount in dispute data on the 123 cases because
FEMA did not maintain electronic records for appeals prior to 2015.
Prior to 2015, this data was manually entered into a database with
many fields left blank.
\18\ Out of 751 cases, 258 had an amount in dispute greater than
$500,000 and would be eligible regardless of the urban/rural
classification. 288 cases were for amounts between $100,000 and
$500,000, of which 95 were classified as rural. 353 (= 258 + 95)
cases out of 751, or 47 percent would have met the eligibility
requirements for arbitration in lieu of a second appeal.
---------------------------------------------------------------------------
FEMA used the number of second appeals by year, then applied the
percent eligible for arbitration under the final rule of 47 percent,
then applied the percent choosing arbitration in lieu of a first appeal
of 32 percent to calculate the expected number of arbitration cases
from 2010 to 2019 as shown in Table 1.
Table 1--Total and Annual Average Estimated Arbitration Cases per Year
----------------------------------------------------------------------------------------------------------------
Percent eligible Expected number
CY Number of second under final rule Percent choosing of arbitration
appeals (%) arbitration (%) cases
----------------------------------------------------------------------------------------------------------------
2010................................ 93 47 32 14
2011................................ 107 47 32 16
2012................................ 92 47 32 14
2013................................ 102 47 32 15
2014................................ 82 47 32 12
2015................................ 43 47 32 6
2016................................ 83 47 32 12
2017................................ 76 47 32 11
2018................................ 110 47 32 17
2019................................ 86 47 32 13
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Total........................... 874 ................. ................. 130
---------------------------------------------------------------------------
Average..................... 87 ................. ................. 13
----------------------------------------------------------------------------------------------------------------
Based on historical data from 2010 through 2019 and case data from
44 CFR 206.209, FEMA estimates that there would be an average of 13
arbitration cases in lieu of a second appeal per year under the final
rule.
Arbitration has been available under 42 U.S.C. 5189a(d)(5) since
January 1, 2016. So far, 20 cases were submitted, with three submitted
for a first appeal lasting more than 180 days. Based on this limited
data, FEMA estimates that 15 percent of arbitration cases would result
from a withdrawal of a first appeal.\19\ Applying the 15 percent
arbitration rate to the annual average number of expected arbitration
cases would result in two additional arbitration case per year (15
percent x 13 cases = 1.95, rounded to two cases). Therefore, FEMA
estimates an average of 15 arbitration cases per year (13 + 2 = 15
arbitrations per year).
---------------------------------------------------------------------------
\19\ Calculation: (3 cases where a first appeal lasted more than
180 days / 20 arbitration cases) x 100 = 15 percent.
---------------------------------------------------------------------------
In this final rule, FEMA is removing the phrase ``or an eligible
applicant may arbitrate'' from ``206.206(b) and FEMA added a second
sentence to 206.206(b) that says: ``[a]n eligible applicant may request
arbitration to dispute the eligibility for assistance or repayment of
assistance'' so that it follows the Stafford Act. This change in this
final rule will not impact the number of arbitration cases per year
since applicants can still request to arbitrate the case. However, the
results of the arbitration may be impacted by the change in language.
FEMA further discusses this point in our transfers and uncertainty
analysis sections.
Costs
Based on experience from the arbitrations conducted for Hurricanes
Katrina and Rita, costs from this final rule would arise mainly from
travel expenses; opportunity costs of time for the applicant and
applicant's representatives, recipient's representatives, and FEMA's
representatives; and contract costs for applicants and FEMA to retain
legal counsel and experts. Cost estimates are based on the expected
number of arbitration cases per year. Since FEMA does not reimburse for
applicant arbitration expenses, FEMA does not have data on the expenses
incurred by applicants who have arbitrated from Hurricanes Katrina and
Rita to serve as a proxy for this final rule. Other provisions of the
final rule, such as timeframe requirements, electronic filing
requirements, technical advice and clarifications would not have
associated costs. FEMA does not expect the electronic filing
requirement to have associated costs since nearly all applicants have
access to internet and email, and most submit arbitration requests
through their attorneys. The final timeframe requirements would align
the submission deadlines for arbitration and appeals and would not
place additional burdens on the applicants. FEMA currently provides
technical advice as needed, so this would not be a new practice under
this final rule.
The arbitration process is highly customizable for the applicant.
The applicant may choose to use an attorney, or several attorneys to
represent them during the arbitration process. The applicant may also
choose not to hire legal representation at all. Additionally, the
applicant may use any number of expert witnesses or none. Because of
the variability in the way arbitrations are conducted, FEMA is
presenting what it considers a typical case upon which to base its cost
estimates. This ``typical case'' is based on recent experience with the
20 arbitration cases already filed. Generally, the applicant will use
one or two attorneys and at least one expert witness. However, the
arbitration
[[Page 45671]]
process is extremely flexible, and an applicant can use whatever
resources it thinks would be most appropriate for its case. For
example, in one case, the applicant hired several non-local attorneys
for representation. In another case, the arbitration was conducted via
written reports only, and no hearing was conducted.
Costs to the CBCA are not discussed in this analysis. CBCA
promulgated their own regulations regarding their procedures for FEMA
arbitration cases. Under DRRA, CBCA will be responsible for covering
the costs of conducting arbitration hearings. All other parties
including the applicant, the recipient, and FEMA would be responsible
for covering their own expenses. The final rule does not mandate any
costs for the applicant or recipient. The arbitration process would be
entirely voluntary on the part of the applicant. Applicants would
choose to request arbitration if they determine that the cost of
arbitration is justified by the potential benefits.
This analysis estimates a range of potential costs based on the
applicant's or recipient's use of attorneys for representation. The
final rule would not require attorneys to represent any party for
arbitration. However, FEMA would be represented by attorneys at any
arbitration hearing.
The costs to the applicant, recipient, and FEMA would be due to
travel and opportunity cost of time and contract costs for legal
counsel and experts. To estimate the opportunity cost of time, FEMA
assumed that each case would take each party 46.5 hours (rounded to 47
hours) to prepare for the hearing, attend the hearing, and for post
hearing work.\20\ Hearings have historically lasted two working days,
or 16 hours.\21\ Additional time would be required for travel as is
discussed later in this analysis. FEMA also assumes that each party
would make use of expert witnesses in support of their case.
Additionally, FEMA generally pays for a court reporter.
---------------------------------------------------------------------------
\20\ Based on information provided by FEMA Office of Chief
Counsel Disaster Disputes Branch.
\21\ Based on information provided by FEMA Office of Chief
Counsel Disaster Disputes Branch.
---------------------------------------------------------------------------
Regulations at 44 CFR 206.209 have a 30-day time limit for
submitting arbitration requests; whereas, this final rule has a 60
calendar-day time limit for arbitrations. Since the 60 calendar-day
appeals deadline is current FEMA policy there will be no additional
costs for the regulatory text changes at Sec. 206.206(b)(1)(ii)(A) and
(b)(2)(ii)(A) since it has already been accounted for.
Opportunity Cost of Time and Wages
A typical arbitration request requires the work of several people,
including lawyers to represent the applicants, a court reporter to take
a transcript of the hearing, and State, local, Tribal, or PNP managers
who are responsible for compiling and submitting the original PA
request. Applicants will also typically supply expert witnesses when
making their case to the CBCA panel. FEMA used wage rates for General
and Operations Managers to represent State, Tribal, local, and PNP
managers. Many PA projects involve repair or replacement of buildings
and infrastructure, so FEMA assumes that Engineers would be the most
likely occupation used as expert witnesses.
FEMA used hourly wage rates from the Bureau of Labor Statistics
Occupational Employment Statistics for the following occupations:
$69.86 for Lawyers (SOC 23-1011), $31.25 for Court Reporters and
Simultaneous Captioners (SOC 23-2093), $48.45 for Engineers (SOC 17-
2000), and $59.15 for General and Operations Managers (SOC 11-
1021).\22\ To account for the benefits paid by employers, FEMA used a
wage multiplier of 1.46,\23\ resulting in fully-loaded hourly wages of
$102.00 for Lawyers, $45.63 for Court Reporters and Simultaneous
Captioners, $70.74 for Engineers, and $86.36 for General and Operations
Managers.
---------------------------------------------------------------------------
\22\ U.S. Bureau of Labor Statistics. National Occupational
Employment and Wage Estimates United States. May 2019. Accessed
August 18, 2020. <a href="https://www.bls.gov/oes/2019/may/oes_nat.htm">https://www.bls.gov/oes/2019/may/oes_nat.htm</a>.
\23\ Bureau of Labor Statistics, Employer Costs for Employee
Compensation, Table 1. ``Employer costs per hour worked for employee
compensation and costs as a percent of total compensation: Civilian
workers, by major occupational and industry group, March 2019.''
Available at <a href="http://www.bls.gov/news.release/archives/ecec_06182020.pdf">http://www.bls.gov/news.release/archives/ecec_06182020.pdf</a>. Accessed August 18, 2020. The wage multiplier is
calculated by dividing total compensation for all workers of $37.73
by wages and salaries for all workers of $25.91 per hour yielding a
benefits multiplier of approximately 1.46.
---------------------------------------------------------------------------
FEMA used the 2019 hourly wage tables for the Washington-Baltimore-
Arlington, DC-MD-VA-WV-PA \24\ locality rate for FEMA employees
participating in arbitration cases. Based on current FEMA practice,
FEMA assumes that GS-13 employees would perform both legal and other
services for an arbitration case and the work would be reviewed by a
manager at the GS-15 level. The hourly GS-13 Step 5 salary was $53.85,
and the hourly GS-15 step 5 salary was $74.86. In order to account for
the benefits paid by employers, FEMA used a 1.46 multiplier to
calculate loaded wage rates of $78.62 for a GS-13 Federal employee and
$109.30 for a GS-15 Federal employee.
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\24\ U.S. Office of Personnel Management. 2019 General Schedule
(GS) Locality Pay Tables. August 19, 2020. <a href="https://www.opm.gov/policy-data-oversight/pay-leave/salaries-wages/salary-tables/pdf/2019/DCB_h.pdf">https://www.opm.gov/policy-data-oversight/pay-leave/salaries-wages/salary-tables/pdf/2019/DCB_h.pdf</a>.
---------------------------------------------------------------------------
Travel
Arbitration cases are heard by a panel of judges of the CBCA, which
is based in Washington, DC. The arbitration process is very
customizable, so applicants can choose to have the hearings locally,
where a CBCA judge would travel to their location, and FEMA would also
send its representatives. Alternatively, cases could be heard at the
CBCA, and the applicant would travel to Washington, DC, along with any
lawyers and expert witnesses. Finally, the applicant could choose to
have the CBCA review documents, and nobody would be required to travel.
Because PA applicants are located throughout the U.S. and can be
travelling from any location within the U.S., FEMA used average
nationwide travel costs to estimate the travel costs for this rule.
The U.S. General Service Administration (GSA) provides guidance on
travel policy, hotel rates, and meals and incidentals for Federal
employees. FEMA used GSA data on hotel prices and per diem rates to
estimate travel expense costs of attending a hearing in person.\25\
Because data on travel expenses for non-Federal employees is not
available, FEMA used the Federal lodging and per diem rates for
applicants traveling to Washington, DC to attend hearings. According to
GSA, in 2019, the average price of a hotel room in Washington, DC was
$216 per night \26\ and outside of the Washington, DC metro area was
$94 per night.\27\ The per diem rate for meals and incidentals on the
first and last travel days \28\ is $57 and $76 for other travel
[[Page 45672]]
day(s) in Washington, DC. Similarly, the per diem rates for meals and
incidentals on the first and last day is $41 and $55 for the other days
outside of Washington, DC.\29\
---------------------------------------------------------------------------
\25\ U.S. General Services Administration. ``FY 2019 Per Diem
Rates for District of Columbia.'' Accessed on August 19, 2020.
Standard CONUS rate used for lodging and MI&E. <a href="https://www.gsa.gov/travel/plan-book/per-diem-rates/per-diem-rates-lookup/?action=perdiems_report&state=DC&fiscal_year=2019&zip=&city=">https://www.gsa.gov/travel/plan-book/per-diem-rates/per-diem-rates-lookup/?action=perdiems_report&state=DC&fiscal_year=2019&zip=&city=</a>. Per
diem rates are calendar year instead of fiscal year.
\26\ FEMA took the average of the 12 month per diem lodging
rates provided by GSA for Washington, DC from October 2018 to
September 2019, available at <a href="https://www.gsa.gov/travel/plan-book/per-diem-rates/per-diem-rates-lookup/?action=perdiems_report&state=DC&fiscal_year=2019&zip=&city=">https://www.gsa.gov/travel/plan-book/per-diem-rates/per-diem-rates-lookup/?action=perdiems_report&state=DC&fiscal_year=2019&zip=&city=</a>.
\27\ U.S. General Service Administration. ``FY 2019 Per Diem
Rates--Effective October 1, 2018.'' Accessed on May 24, 2021.
Standard CONUS rate used for lodging and MI&E. <a href="https://www.gsa.gov/cdnstatic/FY2019_PerDiemRatesMasterFile_0.xls">https://www.gsa.gov/cdnstatic/FY2019_PerDiemRatesMasterFile_0.xls</a>. Per diem rates are
calendar year instead of fiscal year.
\28\ U.S. General Services Administration. ``M&IE Breakdown.''
Accessed on May 24, 2021. <a href="https://www.gsa.gov/travel/plan-book/per-diem-rates/mie-breakdown">https://www.gsa.gov/travel/plan-book/per-diem-rates/mie-breakdown</a>. Per GSA, first and last travel days meals
and incidentals expenses (M&IE) for the first and last calendar day
of travel is calculated at 75 percent of the total M&IE.
\29\ U.S. General Service Administration. ``FY 2019 Per Diem
Rates--Effective October 1, 2018.'' Accessed on May 24, 2021.
Standard CONUS rate used for lodging and MI&E. <a href="https://www.gsa.gov/cdnstatic/FY2019_PerDiemRatesMasterFile_0.xls">https://www.gsa.gov/cdnstatic/FY2019_PerDiemRatesMasterFile_0.xls</a>. Per diem rates are
calendar year instead of fiscal year.
---------------------------------------------------------------------------
The U.S. Department of Transportation (DOT) provides information on
the price of domestic airfare.\30\ According to the Bureau of
Transportation Statistics, the annual unadjusted cost of an average
domestic flight within the United States, the average airfare was $355
roundtrip in 2019.\31\ The total travel costs for applicants attending
hearings in Washington, DC that typically last 3 nights and 4 days
would be $1,269 per person ($355 average airfare + ($216 hotel in
Washington, DC x 3 nights) + ($76 meals and incidentals x 2 days of
stay) + ($57 meals and incidentals x 2 travel days)) = $1,269).
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\30\ Bureau of Transportation Statistics. ``Annual Fares 1995-
2019 4Q 2019'' (.xlsx) March 23, 2020. U.S. Department of
Transportation. <a href="https://www.bts.gov/sites/bts.dot.gov/files/Annual%20Fares%201995-2020%201Q2020.xlsx">https://www.bts.gov/sites/bts.dot.gov/files/Annual%20Fares%201995-2020%201Q2020.xlsx</a>.
\31\ Unadjusted 2019 dollars. Excludes airline tickets under
$50.
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Expert Witnesses
FEMA assumes that each party would make use of expert witnesses to
support their case. The expert witnesses would be required to travel to
the hearing at the expense of the party that hired them. Based on
historical experience, preparing for the hearing is estimated to take
20 hours, the duration of the hearing is estimated to be 16 hours and
the travel time is estimated at 11 hours for a total of 47 hours for a
hearing in Washington, DC. Therefore, the opportunity costs of time for
one expert witness to attend a hearing would be $3,325 ($70.74
engineers wages x 47 hours). Thus, the total cost for one expert
witness' travel and opportunity cost of time is $4,594 ($1,269 +
$3,325). Table 2 shows the detailed costs per expert witness to attend
a hearing in Washington, DC. To provide a range of estimates since
cases vary, a hearing at the applicant's location for an expert witness
would cost $2,547 ($70.74 engineers wages x 36 hours \32\). This total
assumes the expert witness is local and therefore incurs no travel
costs.
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\32\ FEMA deducts the 11 hours of travel time from the total of
47 hours used for a hearing in Washington, DC to come up with the
total time for a hearing at the applicant's location assuming the
expert witness is also local. Therefore, 36 hours is derived from
the 20 hours estimated for preparing for the hearing and 16 hours
for the duration of the hearing.
Table 2--Estimated Cost per Expert Witness, Washington, DC Hearing
[2019$]
--------------------------------------------------------------------------------------------------------------------------------------------------------
Opportunity costs of
Round trip flight Three nights of lodging Meals and incidentals Total travel expenses time for a hearing in Total expert witness
at $219 per night Washington, DC cost
(A) (B) (C) (D) = (A + B + C) (E) (D + E)
--------------------------------------------------------------------------------------------------------------------------------------------------------
$355 $648 $266 $1,269 $3,325 $4,594
--------------------------------------------------------------------------------------------------------------------------------------------------------
Cost for the Applicant
The typical total cost for the applicant includes travel expenses
(round trip flight, three nights of lodging, and meals and incidentals)
and opportunity costs of time for the applicant, the applicant's
representatives, and the expert witnesses. The total travel expenses
for the applicant and the representative would be $2,538 ($1,269 x 2
personnel = $2,538), if the hearing is held in Washington, DC. As
previously discussed in this analysis, costs include 47 hours for
hearing preparation, attending the hearing, and post hearing work, plus
11 hours of travel time for applicants and the applicant's
representative. FEMA notes that an applicant can choose not to bring a
representative or an applicant's representative could be one attorney
or in some cases more than one attorney. To provide a range of costs,
FEMA analyzes the typical case where one attorney or no attorneys are
present. If the applicant's representative is an attorney, the
opportunity costs of time would be $10,925 (($102.00 per hour wages for
a lawyer x 58 hours) + ($86.36 per hour wages for a general and
operations manager x 58 hours) = $10,925). If the applicant does not
use an attorney as their representative, the opportunity costs of time
would be $10,018 (2 general and operations managers at $86.36 each x 58
hours = $10,018). Table 3 shows the range of total costs to the
applicant which include the opportunity costs of time and the travel
costs.
Table 3--Range of Applicant Costs--Washington, DC Hearing
[2019$]
----------------------------------------------------------------------------------------------------------------
Opportunity cost
of time Travel Total
----------------------------------------------------------------------------------------------------------------
1 Attorney and 1 Non-Attorney.......................... $10,925 $2,538 $13,463
2 Non-Attorneys........................................ 10,018 2,538 12,556
----------------------------------------------------------------------------------------------------------------
The total cost to the applicant if they were to travel to
Washington, DC for a hearing with a representative and two expert
witnesses, ranges from $21,744 ((2 expert witnesses at a cost of $4,594
each) + $12,556 applicant cost) if the representatives are 2 non-
attorneys to $22,651 ((2 expert witnesses at $4,594 each) + $13,463
applicant and attorney cost) if the representatives are 1 attorney and
1 non-attorney.
[[Page 45673]]
For a local hearing, the costs to the applicant would include 47
hours of opportunity costs of time for the applicant and representative
(assuming the representative is local), and 36 hours of opportunity
costs of time to attend the hearing for two expert witnesses (assuming
the expert witnesses are local) and would range from $13,211 ((2
general and operations managers at $86.36 each x 47 hours) + (2 expert
witnesses at $70.74 each x 36 hours) = $13,211) to $13,946 (($86.36 for
a general and operations manager x 47 hours) + ($102.00 for an attorney
x 47 hours) + (2 expert witnesses at $70.74 each x 36 hours) = $13,946)
depending on who the recipient uses as a representative. Table 4 shows
the range of total costs for an applicant for hearings held at the
applicant's location.
Table 4--Applicant Costs--Local Hearing
[2019$]
----------------------------------------------------------------------------------------------------------------
Opportunity cost
Expert witnesses of time Total
----------------------------------------------------------------------------------------------------------------
1 Attorney and 1 Non-Attorney.......................... $5,093 $8,853 $13,946
2 Non-Attorneys........................................ 5,093 8,118 13,211
----------------------------------------------------------------------------------------------------------------
Cost for the Recipient
The recipient would not present information in the arbitration case
but would send one or more representatives in a supporting role for the
applicant. The cost per arbitration case for the recipient is the
opportunity costs of time for the representatives totaling $10,018 (2
general and operations managers at $86.36 each x 58 hours = $10,018)
and travel expenses $2,538 (2 representatives x $1,269) of those
attending the hearing in Washington, DC. As shown in table 5, the total
cost to the recipient would be $12,556 if the hearing was held in
Washington, DC.
Table 5--Estimated Recipient Costs, Washington, DC Hearing
[2019$]
----------------------------------------------------------------------------------------------------------------
Opportunity cost
of time Travel Total
----------------------------------------------------------------------------------------------------------------
General and Operations Managers..................... $10,018 $2,538 $12,556
----------------------------------------------------------------------------------------------------------------
For a local hearing, two representatives would spend 47 hours on
the case and the cost to the recipient would be $8,118 (2 general and
operations managers at $86.36 each x 47 hours = $8,118).
Cost to Government/FEMA
FEMA would require two attorneys for a typical arbitration case, a
GS-13 step 5 attorney and a GS-15 step 5 supervisory attorney, to
review and to prepare a response to the request for arbitration. Based
on historical experience, the two attorneys' total time from
preparation to post hearing is 47 hours.\33\ The opportunity costs of
time of the attorneys, including preparation and review of a case, is
$8,832 (($78.62 GS-13 Step 5 attorney x 47 hours) + ($109.30 GS 15 Step
5 Supervisory Attorney x 47) hours = $8,832).
---------------------------------------------------------------------------
\33\ Based on information provided by FEMA Office of Chief
Counsel Disaster Disputes Branch.
---------------------------------------------------------------------------
Based on historical experience, FEMA would also require four non-
attorneys (e.g., GS-13 Step 5 program analysts) to support the
arbitration case only for the duration of the hearing. The opportunity
costs of time associated with the program analysts would be $5,032 (4
GS-13 Step 5 program analysts at $78.62 each x 16 hours = $5,032).
Thus, the total opportunity costs of time for all six FEMA personnel
would be $13,864. FEMA would also call their own expert witnesses to
attend the hearing. Based on historical experience, FEMA assumes that
it would use four expert witnesses per case \34\ for a total of $10,188
($2,547 cost per expert witness x 4 expert witnesses = $10,188). The
expert witnesses provide testimony on a range of subjects, for example
soil degradation or building construction.
---------------------------------------------------------------------------
\34\ FEMA estimates that we could need up to four expert
witnesses. FEMA's expert witnesses may or may not speak at the
hearing. Additionally, FEMA may hire an expert witness so that FEMA
can consult with them about the subject matter.
---------------------------------------------------------------------------
Arbitration hearings do not require transcription services.
However, FEMA has historically hired a court reporter for hearings and
provided the transcript to the CBCA for their records. FEMA will
continue to pay for a court reporter for the duration of a hearing
under the final rule, but will not provide a transcript to the CBCA.
The opportunity costs of time for the court reporter services for a
transcript would be $730 per arbitration case ($45.63 per hour wages
for Court Reporters and Simultaneous Captioners x 16 hours of
arbitration time = $730).
The estimated total cost to FEMA, including staff time, expert
witnesses, and transcript services, would be $24,782 per case. Table 6
presents the cost of each component by opportunity cost of time and
other costs.
Table 6--Estimated FEMA Costs--Washington, DC Hearing
[2019$]
----------------------------------------------------------------------------------------------------------------
Cost for FEMA employees (2
Cost for four expert Cost of court reporter attorneys and 4 program Total per-case cost to
witnesses analysts) FEMA
----------------------------------------------------------------------------------------------------------------
$10,188 $730 $13,864 $24,782
----------------------------------------------------------------------------------------------------------------
[[Page 45674]]
For a hearing at the applicant's location, FEMA representatives
would need to travel to the location of the hearing. Costs for a local
hearing would be higher for FEMA due to paying for travel time as well
as actual travel costs. Travel costs are estimated using the figures
previously mentioned and would be $1,269 per person for a total of
$2,538, if 2 attorneys travel to the applicant's location.
Additionally, FEMA estimates that the time would increase to 58 hours
due to 11 hours of travel time for the attorneys totaling (2 attorneys
at $109.30 each x 58 hours) $12,679 plus $5,032 for non-travelling
program analysts resulting in a total cost of $17,711. The total
estimated costs to FEMA for a local hearing are presented in Table 7.
Table 7--Estimated FEMA Costs--Local
[2019$]
----------------------------------------------------------------------------------------------------------------
Opportunity costs of
Cost for four expert Cost of court time for FEMA Travel costs (2 Total per-case cost
witnesses reporter employees attorneys) to FEMA
----------------------------------------------------------------------------------------------------------------
$10,188 $730 $ 17,711 $2,538 $31,167
----------------------------------------------------------------------------------------------------------------
In addition to these costs, FEMA's PA Program hired an Arbitration
Coordinator at the GS-13 Step 5 level with an annual salary of
$116,353. With the 1.46 multiplier for a fully loaded wage rate, the
additional cost to FEMA is $169,875 per year. Therefore, the annual
total costs to FEMA range from $194,657 ($169,875 + $24,782) if the
hearing is held in Washington, DC to $201,042 ($169,875 + $31,167) if
the hearing is held at the applicant's location.
Total Costs
The total cost per case vary based on who the applicant uses as a
representative, and whether the hearing is held in Washington, DC or
local to the applicant. Government and FEMA costs would be higher for a
hearing held local to the applicant, and likewise, applicant and
recipient costs would be higher if the hearing was held in Washington,
DC. FEMA estimates that the total costs per case to range between
$52,496 and $59,989. Table 8 presents the range of estimated costs per
arbitration case.
Table 8--Total Cost Per Case
[2019$]
----------------------------------------------------------------------------------------------------------------
FEMA Applicant Recipient Total
----------------------------------------------------------------------------------------------------------------
Low................................. $31,167 $13,211 $8,118 $52,496
High................................ 24,782 22,651 12,556 59,989
----------------------------------------------------------------------------------------------------------------
As established earlier in this analysis, FEMA estimates an average
of 15 arbitration cases per year. Therefore, FEMA estimates the total
annual costs to range between $957,315 ((15 cases x $31,167 per case) +
$169,875 to hire a new FEMA employee + (15 cases x $13,211 per case for
applicant) + (15 cases x $8,118 per case for the recipient) = $957,315)
(low) and $1,069,710 ((15 cases x $24,782 per case) + $169,875 for a
new FEMA employee + (15 cases x $22,651 per case for the applicant) +
(15 cases x $12,556 for the recipient) = $1,069,710) (high). Table 9
shows the estimated total costs per year of this final rule. The low-
cost estimate assumes that all hearings would be held at the
applicant's location, while the high estimate assumes hearings would be
held in Washington, DC.
Table 9--Total Cost Per Year for 15 Cases
[2019$]
----------------------------------------------------------------------------------------------------------------
FEMA Applicant Recipient Total
----------------------------------------------------------------------------------------------------------------
Low................................. $637,380 $198,165 $121,770 $957,315
High................................ $541,605 $339,765 $188,340 $1,069,710
----------------------------------------------------------------------------------------------------------------
Tables 10 and 11 show the total 10-year costs and 10-year costs
annualized at 3 percent and 7 percent.
Table 10--10-Year Cost Totals Using 3 Percent and 7 Percent Discount Rates
[Low estimate, 2019$]
--------------------------------------------------------------------------------------------------------------------------------------------------------
Annual costs Annual costs
Year FEMA costs Applicant costs Recipient costs Total costs discounted at discounted at
3% \1\ 7% \1\
--------------------------------------------------------------------------------------------------------------------------------------------------------
1........................................... $637,380 $198,165 $121,770 $957,315 $929,432 $894,687
2........................................... 637,380 198,165 121,770 957,315 902,361 836,156
3........................................... 637,380 198,165 121,770 957,315 876,079 781,454
4........................................... 637,380 198,165 121,770 957,315 850,562 730,331
5........................................... 637,380 198,165 121,770 957,315 825,788 682,552
[[Page 45675]]
6........................................... 637,380 198,165 121,770 957,315 801,736 637,899
7........................................... 637,380 198,165 121,770 957,315 778,385 596,168
8........................................... 637,380 198,165 121,770 957,315 755,713 557,166
9........................................... 637,380 198,165 121,770 957,315 733,702 520,716
10.......................................... 637,380 198,165 121,770 957,315 712,332 486,650
-----------------------------------------------------------------------------------------------------------
Total................................... 6,373,800 1,981,650 1,217,700 9,573,150 8,166,090 6,723,779
--------------------------------------------------------------------------------------------------------------------------------------------------------
Annualized.................................. ................ ................ ................ ................ 957,315 957,315
--------------------------------------------------------------------------------------------------------------------------------------------------------
\1\ The annualized amounts for 7 percent and 3 percent are equal in this table because the amounts for each year are identical and the first year is
discounted.
Table 11--10-Year Cost Totals Using 3 Percent and 7 Percent Discount Rates
[High estimate, 2019$]
--------------------------------------------------------------------------------------------------------------------------------------------------------
Annual costs Annual costs
Year FEMA costs Applicant costs Recipient costs Total costs discounted at discounted at
3% \1\ 7% \1\
--------------------------------------------------------------------------------------------------------------------------------------------------------
1........................................... $541,605 $339,765 $188,340 $1,069,710 $1,038,553 $999,729
2........................................... 541,605 339,765 188,340 1,069,710 1,008,304 934,326
3........................................... 541,605 339,765 188,340 1,069,710 978,936 873,202
4........................................... 541,605 339,765 188,340 1,069,710 950,423 816,077
5........................................... 541,605 339,765 188,340 1,069,710 922,741 762,688
6........................................... 541,605 339,765 188,340 1,069,710 895,865 712,793
7........................................... 541,605 339,765 188,340 1,069,710 869,772 666,162
8........................................... 541,605 339,765 188,340 1,069,710 844,439 622,581
9........................................... 541,605 339,765 188,340 1,069,710 819,844 581,851
10.......................................... 541,605 339,765 188,340 1,069,710 795,965 543,786
-----------------------------------------------------------------------------------------------------------
Total................................... 5,416,050 3,397,650 1,883,400 10,697,100 9,124,842 7,513,195
--------------------------------------------------------------------------------------------------------------------------------------------------------
Annualized.................................. ................ ................ ................ ................ 1,069,710 1,069,710
--------------------------------------------------------------------------------------------------------------------------------------------------------
\1\ The annualized amounts for 7 percent and 3 percent are equal in this table because the amounts for each year are identical and the first year is
discounted.
FEMA continues to believe that there will not be any implementation
or familiarization costs. FEMA currently has an arbitration process
that is very similar to the final rule for cases arising from
Hurricanes Katrina and Rita. Additionally, FEMA has already notified
eligible applicants, dating back to January 1, 2016 of their
eligibility for arbitration under DRRA Section 1219.
Further, applicants will not have familiarization costs because the
process for requesting arbitration will consist of an email request and
will use materials previously submitted in the application for PA
funding.
Benefits
The benefits of this final rule are qualitative in nature and apply
mostly to the applicant. FEMA believes that this final rule will
further its mission of supporting State, Tribal, and local governments,
as well as eligible PNPs by offering them an alternative procedure for
disputing PA eligibility and funding decisions. Applicants retain the
option to submit a second appeal. The final rule offers an alternative
that the applicant might see as more impartial because the arbitration
cases would be heard by CBCA judges, as opposed to second appeals that
would continue to be conducted entirely within FEMA. Additionally,
applicants have the opportunity to present their case in person and
call expert witnesses to support their claims. These two options allow
applicants to choose a course of action that is most appropriate to
their circumstances.
Customization
Applicants may select arbitration, if they consider this process
more customizable. The arbitration process provides applicants with the
opportunity to appear in person before an impartial panel and present
evidence as to why they are disputing a FEMA determination. Applicants
can also retain expert witnesses to provide support to their position.
Expert witnesses provide testimony within their technical specialty to
assist the arbitration panel in understanding the underlying work for
which FEMA ultimately decides eligibility.
Additionally, applicants have the opportunity to respond in real
time to evidence presented by FEMA, allowing them more control over the
dispute than they might have under a second appeal. Applicants may opt
to hire an expert witness in arbitration to help present the disputed
information in a manner more favorable to the applicant. The ability to
hire expert witnesses may provide applicants with additional utility
and may be an incentive to select arbitration.
The final rule also allows applicants to present the same technical
documentation in both the appeals and arbitration procedures. An
applicant who submits a first appeal but elects withdrawal in favor of
arbitration may opt to reuse the information in the request for
arbitration that was previously submitted in the first appeal.
[[Page 45676]]
Applicants may gain utility from the convenience of reusing documents.
Impartiality
It is not possible to quantify an applicant's increased utility due
to perceived impartiality. The purpose of arbitration is to create a
process to resolve the issues in a manner satisfactory to all parties.
Based on past cases, FEMA has granted or partially granted about 23
percent of the second appeals submitted by applicants.\35\ CBCA has
found in favor or partially in favor for the applicant about 13 percent
of Katrina/Rita arbitrations.\36\
---------------------------------------------------------------------------
\35\ Based on information provided by FEMA Office of Chief
Counsel Disaster Disputes Branch.
\36\ Based on information provided by FEMA Office of Chief
Counsel Disaster Disputes Branch.
---------------------------------------------------------------------------
The applicant may nevertheless perceive they have a better
opportunity to gain additional Federal funding through arbitration.
Applicants may select arbitration to have cases reviewed by a third
party, rather than an appeal process that is conducted entirely by
FEMA. Applicants may perceive this to be a more impartial system, if
the forum encourages both parties to solicit discussion rather than
``paper'' based appeals. Applicants may expect that impartiality would
best achieve the objective of an equitable resolution.
Tables 12 and 13 analyze the historical outcomes from second
appeals and arbitration from 44 CFR 206.209. Because of the
unpredictable nature and unique circumstances of every disaster, these
figures may not be representative of future outcomes, as the outcomes
are based on the arbitration policies for Hurricanes Rita and Katrina
and the unique circumstances of each case.
Table 12--Second Appeals Outcomes
[2010-2019]
------------------------------------------------------------------------
Second appeal outcome Number of cases Percent
------------------------------------------------------------------------
Granted........................... 138 15.8
Denied............................ 594 68.0
Partially Granted................. 78 8.9
Active............................ 37 4.2
Other \1\......................... 27 3.1
-------------------------------------
Total......................... 874 100.0
------------------------------------------------------------------------
\1\ The category of Other includes appeal decision not available,
remand, rescind, arbitration, and withdrawn.
Table 13--Arbitration Outcomes Under 44 CFR 206.209
[2010-2019]
------------------------------------------------------------------------
Arbitration outcome Number of cases Percent
------------------------------------------------------------------------
Matters Resolved Without CBCA 24 33.3
Decision.........................
In Favor of FEMA.................. 22 30.6
In Favor of Applicant............. 6 8.3
Partial in Favor of Applicant..... 3 4.2
Withdrawn......................... 12 16.7
Other \2\......................... 5 6.9
-------------------------------------
Total......................... 72 100
------------------------------------------------------------------------
\2\ The category of Other includes other decision, dismissed, and
ongoing cases.
Transfers
FEMA is unable to quantify transfers because of the
unpredictability of the results of this final rule. Transfers would
arise from the possibility that FEMA may award a different amount of
grant funding under the arbitration process than it would under current
regulations that only allow for a second appeal. However, it would be
speculative for FEMA to make an estimate as to the potential changes in
grant disbursement that would result from this final rule.
Impacts
Table 14 summarizes the costs, benefits, and transfer impacts of
this final rule.
Table 14--OMB Circular A-4 Accounting Table
----------------------------------------------------------------------------------------------------------------
Estimates Units
-----------------------------------------------------------------------------------
Category Discount rate
Low estimate High estimate Dollar year (%) Period covered
----------------------------------------------------------------------------------------------------------------
Benefits:
Annualized Monetized.... $0 $0 2019 7 10 Years.
-----------------------------------------------------------------------------------
0 0 2019 3 10 Years.
-----------------------------------------------------------------------------------
Annualized Quantified... 0 0
--------------------------------
[[Page 45677]]
0 0
-----------------------------------------------------------------------------------
Qualitative............. <bullet> Additional option for review of PA projects and decisions.
<bullet> Greater perception of impartiality in the arbitration process.
<bullet> Ability to customize arbitration process.
----------------------------------------------------------------------------------------------------------------
Costs:
Annualized Monetized.... 957,315 1,069,710 2019 7 10 Years.
--------------------------------
957,315 1,069,710 2019 3 10 Years.
-----------------------------------------------------------------------------------
Annualized Quantified... 0 0
--------------------------------
0 0
-----------------------------------------------------------------------------------
Qualitative............. <bullet> Longer time frame to resolve disputes under arbitration option.
-----------------------------------------------------------------------------------
Transfers................... Possible changes to PA grant disbursements.
----------------------------------------------------------------------------------------------------------------
Effects:
Small Entities.......... FEMA expects 11 arbitration cases per year from small entities with an estimated
cost of between $13,211 and $22,651 per small entity.
-----------------------------------------------------------------------------------
Wages................... None.
-----------------------------------------------------------------------------------
Growth.................. None.
----------------------------------------------------------------------------------------------------------------
Uncertainty Analysis
The estimates of the costs of the final rule are subject to
uncertainty due to the uniqueness of each arbitration case. The cost
estimates can vary widely depending on complexity and other factors. As
a result, the cost estimate could be overstated or understated.
There are several sources of uncertainty in this analysis: The
number of eligible applicants, the final deadlines for filing, and the
potential number of arbitration cases. Major disasters do not occur on
a regular time interval. The severity of the disaster would affect the
number of applicants that decide to apply for funding in the PA
Program. The number of eligible applicants can vary year-to-year.
Historical data used in this analysis was based on the arbitration
process for Hurricanes Katrina and Rita, which is different in a couple
of key respects from this final arbitration process. While the cost
shares for Katrina and Rita were 100 percent, cost shares for future
disaster declarations may be as high as 25 percent for applicants.\37\
Because Katrina/Rita applicants were not required to pay for any
portion of their project cost, they had an incentive to apply for more
costly projects and pursue arbitration when denied. Future disasters
with a cost share may lead applicants to be more conservative in
applying for PA projects, which may result in fewer arbitration
requests than was indicated in the primary estimate.
---------------------------------------------------------------------------
\37\ ``The Federal share of assistance is not less than 75
percent of the eligible cost. The recipient determines how the non-
Federal share (up to 25 percent) is split with the subrecipients
(i.e., eligible applicants).'' Program Overview: Public Assistance.
FEMA. <a href="https://www.fema.gov/assistance/public/program-overview">https://www.fema.gov/assistance/public/program-overview</a>. Last
accessed on: May 25, 2021.
---------------------------------------------------------------------------
Additionally, the timeframe for submitting arbitration requests
under 44 CFR 206.209 was 30 days. However, FEMA is implementing a 60-
day submission deadline for arbitration submissions under DRRA
requirements to align with the 60-day submission timeframe for second
appeals. This additional time may affect the number of arbitration
cases submitted in the future, but FEMA cannot reliably predict these
impacts at this time.
Alternatives
FEMA identified several alternative regulatory approaches to the
requirements in this final rule. The alternatives included: (1) Not
issuing a mandatory regulation; (2) an alternate definition of rural;
and (3) not requiring electronic submission.
FEMA did not consider the first alternative option of not issuing a
mandatory regulation. The DRRA mandates FEMA to promulgate a rule
allowing the option of arbitration in lieu of a second appeal and
specifies the CBCA as the arbitration administrator. As such, FEMA must
pursue a regulatory action.
FEMA considered using an alternate definition of rural, such as
OMB's nonmetropolitan area definition. OMB's nonmetropolitan area is
defined as areas outside the boundaries of metropolitan areas.\38\
---------------------------------------------------------------------------
\38\ 2010 Standards for Delineating Metropolitan and
Micropolitan Statistical Areas; Notice. Office of Management and
Budget. See 75 FR 37246, June 28, 2010. <a href="https://www.govinfo.gov/content/pkg/FR-2010-06-28/pdf/2010-15605.pdf">https://www.govinfo.gov/content/pkg/FR-2010-06-28/pdf/2010-15605.pdf</a>. Last accessed: May 25,
2021.
---------------------------------------------------------------------------
Nonmetropolitan areas are outside the boundaries of metropolitan
areas and are further subdivided into two types:
1. Micropolitan (micro) areas, which are nonmetro labor-market
areas centered on urban clusters of 10,000-49,999 persons and defined
with the same criteria used to define metro areas.
2. All remaining counties, often labeled ``noncore'' counties
because they are not part of ``core-based'' metro or micro areas.
OMB defines metropolitan areas to include:
1. Central counties with one or more urbanized areas; urbanized
areas are densely-settled urban entities with 50,000 or more people.
2. Outlying counties that are economically tied to the core
counties as measured by labor-force commuting. Outlying counties are
included if 25
[[Page 45678]]
percent of workers living in the county commute to the central
counties, or if 25 percent of the employment in the county consists of
workers coming out from the central counties--the so-called ``reverse''
commuting pattern.
FEMA did not recommend using OMB's definition because it combines
rural area populations into Metropolitan counties. The OMB definition
would also result in some rural areas, such as the Grand Canyon, being
considered a metropolitan county. This alternative would not result in
reducing the impact on small entities, while accomplishing the stated
objective of the rule.
FEMA considered not requiring applicants to submit a request for
arbitration electronically. Current practices allow FEMA to accept hard
copy submissions (through U.S. Mail or other means) for first and
second appeals. In addition, FEMA currently accepts electronic
submissions for requests for arbitration under 44 CFR 206.209. FEMA
chose to require electronic submissions as it would provide FEMA with
enhanced ability to track and establish deadlines in the arbitration
process. CBCA's rule requires applicants to use an electronic method to
submit their documentation and request for arbitration to CBCA. Thus,
requiring electronic submission will not pose an undue burden on most
applicants.
B. Regulatory Flexibility Act
The Regulatory Flexibility Act of 1980 (5 U.S.C. 601 et seq.) and
Executive Order 13272 (67 FR 53461, Aug. 16, 2002) require agency
review of proposed and final rules to assess their impact on small
entities. An agency must prepare a Final Regulatory Flexibility
Analysis (FRFA) unless it determines and certifies that a rule, if
promulgated, will not have a significant economic impact on a
substantial number of small entities. This final rule will not have a
significant economic impact on a substantial number of small entities.
In accordance with the Regulatory Flexibility Act, a FRFA must contain
the following statements, including descriptions of the reason(s) for
the rulemaking, its objective(s), the affected small entities, any
additional burden for book or record keeping and other compliance
requirements; any Federal rules that duplicate, overlap, or conflict
with the rulemaking, and significant alternatives considered. The
following sections address these subjects individually in the context
of this final rule.
1. Statement of a need for, and objectives of the rule.
PA helps State and local governments respond to and recover from
the challenges faced during major disasters and emergencies. To support
State and local governments facing those challenges, Congress passed
DRRA.
Under the PA Program, as authorized by the Stafford Act, FEMA
awards grants to eligible applicants to assist them in responding to
and recovering from Presidentially-declared emergencies and major
disasters. The recipient, as defined at 44 CFR 206.201(m), is the
government to which a grant is awarded, and which is accountable for
the use of the funds provided. Generally, the State for which the
emergency or major disaster is declared is the recipient. The recipient
can also be an Indian Tribal government. The applicant, as defined at
44 CFR 206.201(a), is a State agency, local government, or eligible PNP
submitting an application to the recipient for assistance under the
State's grant.
The PA Program provides Federal funds for debris removal, emergency
protective measures, repair and replacement of roads and bridges,
utilities, water treatment facilities, public buildings, and other
infrastructure. When the President declares an emergency or major
disaster declaration authorizing disbursement of funds through the PA
Program, that presidential declaration automatically authorizes FEMA to
accept applications from eligible applicants under the PA Program. To
apply for a grant under the PA Program, the eligible applicant must
submit a Request for PA to FEMA through the recipient. Upon award, the
recipient notifies the applicant of the award, and the applicant
becomes a subrecipient.
Applicants currently have a right to arbitration to dispute FEMA
eligibility determinations associated with Hurricanes Katrina and Rita;
see 44 CFR 206.209. The DRRA amended the Stafford Act and FEMA
promulgated a regulation providing all applicants the right to request
arbitration for disputes under all disaster declarations after January
1, 2016 that are above certain dollar amount thresholds. This final
rule implements the Section 1219 requirements of DRRA and will grant
applicants an additional method of recourse.
2. Statement of the significant issues raised by the public comments in
response to the Initial Regulatory Flexibility Analysis (IRFA), a
statement of the assessment of the agency of such issues, and a
statement of any changes made to the proposed rule as a result of such
comments.
FEMA did not receive any comments on the IRFA for this rule, and
therefore did not make any changes to this FRFA from the proposed rule
due to public comments.
3. The response of the agency to any comments filed by the Chief
Counsel for Advocacy of the Small Business Administration (SBA) in
response to the proposed rule, and a detailed statement of any change
made to the final rule as a result of the comments.
FEMA did not receive any comments on the proposed rule from the
Chief Counsel for Advocacy of the SBA.
4. A description of and an estimate of the number of small entities to
which the rule will apply or an explanation of why no such estimate is
available.
``Small entity'' is defined in 5 U.S.C. 601. The term ``small
entity'' can have the same meaning as the terms ``small business,''
``small organization,'' and ``small governmental jurisdiction.''
Section 601(3) defines a ``small business'' as having the same meaning
as ``small business concern'' under Section 3 of the SBA. This includes
any small business concern that is independently owned and operated and
is not dominant in its field of operation. Section 601(4) defines a
``small organization'' as any not-for-profit enterprise which is
independently owned and operated and is not dominant in their field of
operation. Section 601(5) defines ``small governmental jurisdiction''
as governments of cities, counties, towns, townships, villages, school
districts, or special districts, with a population of less than 50,000.
The SBA also stipulates in its size standards of how large an
entity may be and still be classified as a ``small entity.'' These
small business size standards are matched to industries described in
the North American Industry Classification System to determine if an
entity is considered small.
This final rule does not place any additional requirements on small
entities. It does, however, offer them an alternative means to dispute
FEMA's determination for PA eligibility. If the entity chooses to
dispute a PA determination, and they select
[[Page 45679]]
arbitration rather than a second appeal, they would be responsible for
their share of the cost of the arbitration process.
All small entities would have to meet the final requirements to be
eligible for arbitration. FEMA identified 3,478 applicants for FEMA's
PA Program \39\ that would be eligible for arbitration under the final
requirements for the time frame from 2010 through 2019. FEMA used
Slovin's formula \40\ and a 90 percent confidence interval to determine
the sample size. FEMA sampled 97 of these applicants and found that 74
(76 percent) met the definition of a small entity based on the
population size of local governments (less than 50,000 population),\41\
or PNPs based on size standards set by the SBA.\42\ The remaining 23
entities were not found to be considered small entities. Eligible small
entities included 67 small government agencies and seven PNP
organizations. Based on information presented in the Executive Orders
12866 and 13563 section, FEMA estimates 15 arbitration cases per year.
If 76 percent of these are small entities, FEMA estimates 11
arbitration requests per year from small entities with an average cost
of between $13,211 and $22,651 per case. Eleven small entities do not
represent a substantial number of small entities impacted by this final
rule and the costs imposed to these small entities are not significant.
---------------------------------------------------------------------------
\39\ FEMA reported 3,778 applicants in the NPRM to this rule.
The number of applicants has since been adjusted to account for more
recent data and new timeframe for analysis. The NPRM contained data
from 2009-2017 due to the limited data available at that time. This
final rule contains data from 2010-2019.
\40\ Slovin's formula is n = N/(1 + N*e-2). 3,478/(1 + 3,478 x
0.1-2) = 97 (rounded).
\41\ Information on population sizes was obtained using the U.S.
Census Bureau's City and Town Population Totals 2010-2018. Available
at <a href="https://www.census.gov/data/tables/time-series/demo/popest/2010s-total-cities-and-towns.html">https://www.census.gov/data/tables/time-series/demo/popest/2010s-total-cities-and-towns.html</a>.
\42\ Small Business Administration. ``Table of Size Standards''
(.xlxs). Available at <a href="https://www.sba.gov/document/support-table-size-standards">https://www.sba.gov/document/support-table-size-standards</a>. Revenue and employment information for individual
PNP's was obtained from PNP websites.
---------------------------------------------------------------------------
5. Description of the projected reporting, recordkeeping, and other
compliance requirements of the rule, including an estimate of the
classes of small entities which will be subject to the requirement and
the types of professional skills necessary for preparation of the
report or record.
Arbitration--As an alternative to the appeal process, applicants
may request arbitration of the disputed determination. To be eligible
for Section 423 arbitration, a PA applicant's request must meet all
three of the following conditions: (1) The amount in dispute arises
from a disaster declared after January 1, 2016; (2) the disputed amount
exceeds $500,000 (or $100,000 if the applicant is in a ``rural area,''
defined as having a population of less than 200,000 living outside an
urbanized area); and (3) the applicant submitted a first appeal with
FEMA pursuant to the requirements established in 44 CFR 206.206.
The applicant must submit a Request for Arbitration to the
recipient, CBCA, and FEMA. The Request for Arbitration must contain a
written statement, which specifies the amount in dispute, all
documentation supporting the position of the applicant, the disaster
number, and the name and address of the applicant's authorized
representative or counsel. FEMA estimates that it will take an
applicant 2 hours to complete the Request for Arbitration (these 2
hours are accounted for in the economic analysis through the 47 hours
of hearing preparation time for applicants) with a wage rate of $86.36
for a general and operations manager. FEMA estimates the opportunity
cost of time for completing the request will be $172.72 per applicant.
With an estimated 11 cases per year, FEMA estimates the total burden
for completing the request is $1,900 per year. The person completing
the request would need to be familiar with PA regulations and policies.
6. Description of the steps the agency has taken to minimize the
significant economic impact on small entities consistent with the
stated objectives of applicable statutes, including a statement of the
factual, policy, and legal reasons for selecting the alternative
adopted in the final rule and why each of the other significant
alternatives to the rule considered by the agency which affect the
impact on small entities was rejected.
The alternatives included: (1) Using another definition for
``rural'' and (2) not requiring electronic submission.
FEMA considered using OMB's nonmetropolitan area definition as an
alternate definition of the term ``rural.'' OMB's nonmetropolitan area
is defined as areas outside the boundaries of metropolitan areas and
are further subdivided into two types:
1. Micropolitan (micro) areas, which are nonmetro labor-market
areas centered on urban clusters of 10,000-49,999 persons and defined
with the same criteria used to define metro areas.
2. All remaining counties, often labeled ``noncore'' counties
because they are not part of ``core-based'' metro or micro areas.
OMB defines metropolitan areas to include:
1. Central counties with one or more urbanized areas; urbanized
areas are densely-settled urban entities with 50,000 or more people.
2. Outlying counties that are economically tied to the core
counties as measured by labor-force commuting. Outlying counties are
included if 25 percent of workers living in the county commute to the
central counties, or if 25 percent of the employment in the county
consists of workers coming out from the central counties--the so-called
``reverse'' commuting pattern.
FEMA did not recommend using the OMB's definition as it combines
rural area populations into Metropolitan counties. The OMB definition
would also result in some rural areas, such as the Grand Canyon, being
considered a metropolitan county. This alternative would not result in
reducing the impact on small entities while accomplishing the stated
objective of the rule.
FEMA considered not requiring electronic submission. Current
practices allow FEMA to accept physical mail for appeals. In addition,
FEMA currently accepts electronic submissions for requests for
arbitration under 44 CFR 206.209. As CBCA provided an electronic
address for applicants to submit their request for arbitration and
documentation, applicants must use electronic method if they choose the
arbitration process. Thus, electronic submission will not pose an
additional undue burden on applicants that are considered small
entities.
Conclusion
This rule codifies legislative requirements included in the DRRA,
which adds arbitration as a permanent alternative to a second appeal
under the PA Program. Additionally, applicants that have had a first
appeal pending with FEMA for more than 180 calendar days may withdraw
such appeal and submit a request for arbitration. On December 18, 2018,
FEMA implemented section 1219 of DRRA by posting a Fact Sheet on its
website. On June 21, 2019, CBCA published a final rule (see 84 FR
29085) and FEMA has published a corresponding fact sheet. PA
arbitration has been available for disasters declared after January 1,
2016. FEMA certifies that this regulation will not have a significant
economic impact on a substantial number of small entities.
C. Unfunded Mandates Reform Act
The Unfunded Mandates Reform Act of 1995, 2 U.S.C. 658, 1501-1504,
1531-1536, 1571 (the Act), pertains to any final rulemaking which
implements any
[[Page 45680]]
rule that includes a Federal mandate that may result in the expenditure
by State, local, and Tribal governments, in the aggregate, or by the
private sector, of $100 million (adjusted annually for inflation) or
more in any one year. If the rulemaking includes a Federal mandate, the
Act requires an agency to prepare an assessment of the anticipated
costs and benefits of the Federal mandate. The Act also pertains to any
regulatory requirements that might significantly or uniquely affect
small governments. Before establishing any such requirements, an agency
must develop a plan allowing for input from the affected governments
regarding the requirements. Exemptions from the Act are found at 2
U.S.C. 1503, they include any regulation or final regulation that
``provides for emergency assistance or relief at the request of any
State, local, or tribal government or any official of a State, local,
or tribal government.'' Thus, FEMA finds this rule to be exempt from
the Act.
Additionally, FEMA has determined that this rule would not result
in the expenditure by State, local, and Tribal governments, in the
aggregate, nor by the private sector, of $100 million or more (adjusted
annually for inflation) in any one year because of a Federal mandate,
and it would not significantly or uniquely affect small governments.
Therefore, no actions are deemed necessary under the provisions of the
Unfunded Mandates Reform Act of 1995.
D. Paperwork Reduction Act of 1995
As required by the Paperwork Reduction Act of 1995 (PRA), Public
Law 104-13, 109 Stat. 163, (May 22, 1995) (44 U.S.C. 3501 et seq.), an
agency may not conduct or sponsor, and a person is not required to
respond to, a collection of information unless the collection of
information displays a valid control number.
This proposed information collection previously published in the
Federal Register on August 31, 2020 at 85 FR 53725 as part of the NPRM.
Since the proposed information collection published on August 31, 2020,
FEMA completed an emergency revision of information collection 1660-
0017. In the emergency information collection for 1660-0017 FEMA added
the FEMA Template 104-FY-21-100 Equitable COVID-19 Response and
Recovery: Vaccine Administration Information which resulted in 51,016
new Total No. of Responses with an .5 Average Burden per response of
(in hours) which resulted in 25,508 Total Annual Burden (in hours)
totaling $1,445,028 in additional Total Annual Respondent Cost. Also,
FEMA is correcting the wage rate used to calculate the Estimated Total
Annual Respondent Cost in the NPRM, which resulted in a decrease of the
Estimated Total Annual Respondent Cost from $29,601,921 to $27,845,344.
FEMA incorrectly used the wage rate for the whole industry, instead of
the State government industry wage rate. \43\ Additionally, the NPRM
incorrectly listed the proposed decrease to the Estimated Total Annual
Cost to the Federal Government as $29,976, an error of $2,498. Rather,
the NPRM should have listed a proposed decrease of $27,478 in
arbitration travel costs; as, we do not have to include them per the
PRA exceptions for civil & administrative actions. See 44 U.S.C.
3518(c). Additionally, the Staff Salaries changed as the wage rate
multiplier changed from 1.6 to 1.45. Finally, the NPRM incorrectly
listed the Estimated Total Annual Costs to the Federal Government, as
$1,890,650, when the NPRM should have listed it as $1,930,187, due to
the previously mentioned changes. No comments were received regarding
the proposed information collection. The purpose of this section is to
notify the public that FEMA will submit the information collection
abstracted below to OMB for review and clearance. This final rule
serves as the 30-day comment period pursuant to 5 CFR 1320.12. FEMA
invites the public to comment on this collection of information.
---------------------------------------------------------------------------
\43\ Bureau of Labor Statistics, Occupational Employment and
Wage Statistics. <a href="https://www.bls.gov/oes/">https://www.bls.gov/oes/</a>. Last accessed: June 10,
2021.
---------------------------------------------------------------------------
Collection of Information
Title: PA Program.
Type of information collection: Revision of a currently approved
collection.
OMB Number: 1660-0017.
Form Forms: FEMA Form 009-0-49 Request for Public Assistance; FEMA
Form 009-0-91 Project Worksheet (PW); FEMA Form 009-0-91A Project
Worksheet (PW)--Damage Description and Scope of Work; FEMA Form 009-0-
91B Project Worksheet (PW)--Cost Estimate Continuation Sheet; FEMA Form
009-0-91C Project Worksheet (PW)--Maps and Sketches Sheet; FEMA Form
009-0-91D Project Worksheet (PW)--Photo Sheet; FEMA Form 009-0-120
Special Considerations Questions; FEMA Form 009-0-121 PNP Facility
Questionnaire; FEMA Form 009-0-123 Force Account Labor Summary Record;
FEMA Form 009-0-124 Materials Summary Record; FEMA Form 009-0-125
Rented Equipment Summary Record; FEMA Form 009-0-126 Contract Work
Summary Record; FEMA Form 009-0-127 Force Account Equipment Summary
Record; FEMA Form 009-0-128 Applicant's Benefits Calculation Worksheet;
FEMA Form 009-0-111, Quarterly Progress Report; FEMA Form 009-0-141,
FAC-TRAX System, FEMA Template 104-FY-21-100 Equitable COVID-19
Response and Recovery: Vaccine Administration Information.
Abstract: The information collected is utilized by FEMA to make
determinations for PA grants based on the information supplied by the
respondents.
Affected Public: State, local, or Tribal Government.
Estimated Number of Respondents: 1,068.
Estimated Number of Responses: 449,084.
Estimated Total Annual Burden Hours: 491,533.
The final regulation would provide applicants an additional choice
in FEMA's appeals and arbitration processes: Applicants must choose
either submitting a second appeal or submitting a request for
arbitration. Or, an applicant may select arbitration if the Regional
Administrator has received a first appeal but has not rendered a
decision within 180 calendar days of receipt. There is no change to the
number of responses due to the final rule, as applicants can only
choose one option. The final rule's implementation would not impact the
total number of responses or burden hours.
FEMA estimated it will take approximately 2 hours to prepare an
electronic appeal or arbitration. This estimate is based on the
assumption that most of the information necessary for preparing the
appeal or arbitration request is found in the existing Project
Worksheet.
Recipients will also provide a recommendation per each applicant
request for an appeal or arbitration. The total number of
recommendations would not change because of the final rule. FEMA
estimates it will take approximately 1 hour to prepare a
recommendation.
Currently, the estimated time to complete a request and submit a
letter of recommendation for an appeal is three hours. FEMA also
estimates the time to complete a request and submit an electronic
recommendation for arbitration would also be three hours. The applicant
could re-use the same information from the request for an appeal or
arbitration and the recipient would review similar information in
providing its recommendation. The final
[[Page 45681]]
rule would not impact the estimate of the burden hours.
Table 15 provides estimates of annualized cost to respondents for
the hour burdens for the collection of information.
Table 15--Estimated Annualized Burden Hours and Costs
--------------------------------------------------------------------------------------------------------------------------------------------------------
Number of Avg. burden Total Total
Number of responses Total per annual Avg. hourly annual
Type of respondent Form name/form No. respondents per number of response burden (in wage rate respondent
respondent responses (in hours) hours) cost
--------------------------------------------------------------------------------------------------------------------------------------------------------
State, Local or Tribal Government. FEMA Form 009-0-49, 56 129 7,224 0.25 1,806 $56.65 $102,310
Request for PA.
State, Local or Tribal Government. FEMA Form 009-0-91, 56 840 47,040 1.5 70,560 56.65 3,997,224
Project Worksheet (PW)
and a Request for Time
Extension.
State, Local or Tribal Government. FEMA Form 009-0-91A 56 784 43,904 1.5 65,856 56.65 3,730,742
Project Work Sheet (PW)
Damage Description and
Scope of Work.
State, Local or Tribal Government. FEMA Form 009-0-91B, 56 784 43,904 1.3333 58,537 56.65 3,316,121
Project Worksheet (PW)
Cost Estimate
Continuation Sheet and
Request for additional
funding for Cost
Overruns.
State, Local or Tribal Government. FEMA Form 009-0-91C 56 728 40,768 1.5 61,152 56.65 3,464,261
Project Worksheet (PW)
Maps and Sketches Sheet.
State Local or Tribal Government.. FEMA Form 009-0-91D 56 728 40,768 1.5 61,152 56.65 3,464,261
Project Worksheet (PW)
Photo Sheet.
State, Local or Tribal Government. FEMA Form 009-0-120, 56 840 47,040 0.5 23,520 56.65 1,332,408
Special Considerations
Questions/.
State, Local or Tribal Government. FEMA Form 009-0-128, 56 784 43,904 0.5 21,952 56.65 1,243,581
Applicant's Benefits
Calculation Worksheet/.
State, Local or Tribal Government. FEMA Form 009-0-121, PNP 56 94 5,264 0.5 2,632 56.65 149,103
Facility Questionnaire.
State, Local or Tribal Government. FEMA Form 009-0-123, 56 94 5,264 0.5 2,632 56.65 149,103
Force Account Labor
Summary Record.
State, Local or Tribal Government. FEMA Form 009-0-124, 56 94 5,264 0.25 1,316 56.65 74,551
Materials Summary Record/
.
State, Local or Tribal Government. FEMA Form 009-0-125, 56 94 5,264 0.5 2,632 56.65 149,103
Rented Equipment Summary
Record.
State, Local or Tribal Government. FEMA Form 009-0-126, 56 94 5,264 0.5 2,632 56.65 149,103
Contract Work Summary
Record/.
State, Local or Tribal Government. FEMA Form 009-0-127, 56 94 5,264 0.25 1,316 56.65 74,551
Force Account Equipment
Summary Record/.
State, Local or Tribal Government. State Administrative Plan 56 1 56 8 448 56.65 25,379
and State Plan
Amendments/No Form.
State, Local or Tribal Government. FEMA Form 009-0-111, 56 4 224 100 22,400 56.65 1,268,960
Quarterly Progress
Report.
State, Local or Tribal Government. Request for Appeals or 56 9 504 3 1,512 56.65 85,655
Arbitrations &
Recommendation/No Forms.
State, Local or Tribal Government. Request for Arbitration & 4 5 20 3 60 56.65 3,399
Recommendation resulting
from Hurricanes Katrina
or Rita/No Form.
State, Local or Tribal Government. FEMA Form 009-0-141, FAC- 56 913 51,128 1.25 63,910 56.65 3,620,502
TRAX System.
State, Local or Tribal Government. FEMA Template 104-FY-21- 56 911 51,016 0.5 25,508 56.65 1,445,028
100 Equitable COVID-19
Response and Recovery.
------------------------------------------------------------------------------------------
Total......................... ......................... 1,068 ........... 449,084 ........... 491,533 ........... 27,845,344
--------------------------------------------------------------------------------------------------------------------------------------------------------
Note: The ``Avg. Hourly Wage Rate'' for each respondent includes a 1.62 multiplier to reflect a fully-loaded wage rate.
Estimated Total Annual Respondent Cost: $27,845,344.
Estimated Respondents' Operation and Maintenance Costs: N/A.
Estimated Respondents' Capital and Start-Up Costs: N/A.
Estimated Total Annual Costs to the Federal Government: $1,930,187.
E. Privacy Act
Under the Privacy Act of 1974, 5 U.S.C. 552a, an agency must
determine whether implementation of a final regulation will result in a
system of records. A ``record'' is any item, collection, or grouping of
information about an individual that is maintained by an agency,
including, but not limited to, his/her education, financial
transactions, medical history, and criminal or employment history and
that contains his/her name, or the identifying number, symbol, or other
identifying particular assigned to the individual, such as a finger or
voice print or a photograph. See 5 U.S.C. 552a(a)(4). A ``system of
records'' is a group of records under the control of an agency from
which information is retrieved by the name of the individual or by some
identifying number, symbol, or other identifying particular assigned to
the individual. An agency cannot disclose any record which is contained
in a system of records except by following specific procedures.
In accordance with DHS policy, FEMA has completed a Privacy
Threshold Analysis (PTA) for this final rule. DHS has determined that
this final rule does not affect the 1660-0017 OMB Control Number's
current compliance with the E-Government Act of 2002 or the Privacy Act
of 1974, as amended. As a result, DHS has concluded that the 1660-0017
OMB Control Number is covered by the DHS/FEMA/PIA-013 Grants Management
Programs Privacy Impact Assessment (PIA). Additionally, DHS has decided
that the 1660-0017 OMB Control Number is covered by the DHS/FEMA--009
Hazard Mitigation,
[[Page 45682]]
Disaster Public Assistance, and Disaster Loan Programs System of
Records, 79 FR 16015, Mar. 24, 2014 System of Records Notice (SORN).
F. National Environmental Policy Act of 1969 (NEPA)
Section 102 of the National Environmental Policy Act of 1969
(NEPA), 83 Stat. 852 (Jan. 1, 1970) (42 U.S.C. 4321 et seq.) requires
Federal agencies to consider the impacts of their proposed actions on
the quality of the human environment. Each agency can develop
categorical exclusions (catexes) to cover actions that have been
demonstrated to not typically trigger significant impacts to the human
environment individually or cumulatively. If an action does not qualify
for a catex and has the potential to significantly affect the
environment, agencies develop environmental assessments (EAs) to
evaluate those actions. The Council on Environmental Quality's
procedures for implementing NEPA, 40 CFR parts 1500 through 1508,
require Federal agencies to prepare Environmental Impact Statements
(EISs) for major Federal actions significantly affecting the quality of
the human environment. At the end of the EA process, the agency will
determine whether to make a Finding of No Significant Impact or whether
to initiate the EIS process.
Rulemaking is a major Federal action subject to NEPA. The list of
catexes at DHS Instruction Manual 023-01-001-01 (Revision 01),
``Implementation of the National Environmental Policy Act (NEPA),''
Appendix A, includes a catex for the promulgation of certain types of
rules, including rules that implement, without substantive change,
statutory or regulatory requirements and rules that interpret or amend
an existing regulation without changing its environmental effect.
(Catex A3(b) and (d)).
The purpose of this rule is to finalize the proposed regulations to
implement the new right of arbitration authorized by the DRRA, and to
revise FEMA's regulations regarding first and second PA appeals.
Additionally, in response to a public comment, FEMA is adding a
definition of Regional Administrator. Plus, FEMA made changes to the
regulatory text regarding first appeals and second appeals at
206.206(b)(1)(ii)(A) and (b)(2)(ii)(A) as a result of the 60-day
appeals deadline comments. Finally, FEMA is making two technical
revisions at 206.206(b) and 206.206(b)(3)(i)(A) to align the regulatory
text with the dispute of the eligibility for assistance or repayment of
assistance language of Section 423(d)(1) of the Stafford Act. These
changes are to implement statutory requirements and to amend existing
regulation without changing its environmental effect, consistent with
Catex A3(b) and (d), as defined in DHS Instruction Manual 023-01-001-01
(Rev. 01), Appendix A. No extraordinary circumstances exist that will
trigger the need to develop an EA or EIS. See DHS Instruction Manual
023-01-001-01 V(B)(2).
G. Executive Order 13175, Consultation and Coordination With Indian
Tribal Governments
Executive Order 13175, ``Consultation and Coordination With Indian
Tribal Governments,'' 65 FR 67249, Nov. 9, 2000, applies to agency
regulations that have Tribal implications, that is, regulations that
have substantial direct effects on one or more Indian tribes, on the
relationship between the Federal Government and Indian Tribes, or on
the distribution of power and responsibilities between the Federal
Government and Indian Tribes. Under this Executive Order, to the extent
practicable and permitted by law, no agency will promulgate any
regulation that has Tribal implications, that imposes substantial
direct compliance costs on Indian Tribal governments, and that is not
required by statute, unless funds necessary to pay the direct costs
incurred by the Indian Tribal government or the Tribe in complying with
the regulation are provided by the Federal Government, or the agency
consults with Tribal officials.
The purpose of this rule is to finalize the proposed regulations to
implement the new right of arbitration authorized by the DRRA, and to
revise FEMA's regulations regarding first and second PA appeals.
Additionally, in response to a public comment, FEMA is adding a
definition of Regional Administrator. Plus, FEMA made changes to the
regulatory text regarding first appeals and second appeals at
206.206(b)(1)(ii)(A) and (b)(2)(ii)(A) as a result of the 60-day
appeals deadline comments. Finally, FEMA is making two technical
revisions at 206.206(b) and 206.206(b)(3)(i)(A) to align the regulatory
text with the dispute of the eligibility for assistance or repayment of
assistance language of Section 423(d)(1) of the Stafford Act.
Under the final rule, Indian Tribal Governments have the same
opportunity to participate in arbitrations as other eligible
applicants; however, given the participation criteria required under 42
U.S.C. 5189a(d) and its voluntary nature, FEMA anticipates a very small
number, if any Indian Tribal Governments, will participate in the new
permanent right of arbitration. FEMA also anticipates a very small
number of Indian Tribal Governments will be affected by the other major
revisions to 44 CFR 206.206. As a result, FEMA does not expect this
final rule to have a substantial direct effect on one or more Indian
Tribal Governments or impose direct compliance costs on Indian Tribal
Governments. Additionally, since FEMA anticipates a very small number,
if any Indian Tribal Governments will participate in the arbitration
portion of the final rule nor will be affected by the rest of the
finalized revisions to 44 CFR 206.206, FEMA does not expect the
regulations to have substantial direct effects on the relationship
between the Federal Government and Indian Tribal Governments or on the
distribution of power and responsibilities between the Federal
Government and Indian Tribal Governments.
H. Executive Order 13132, Federalism
A rule has implications for federalism under Executive Order 13132
``Federalism'' (64 FR 43255, Aug. 10, 1999), if it has a substantial
direct effect on the States, on the relationship between the national
government and the States, or on the distribution of power and
responsibilities among the various levels of government. FEMA has
analyzed this final rule under Executive Order 13132 and determined
that it does not have implications for federalism.
I. Executive Order 12630, Taking of Private Property
This rule will not effect a taking of private property or otherwise
have taking implications under Executive Order 12630, ``Governmental
Actions and Interference With Constitutionally Protected Property
Rights'' (53 FR 8859, Mar. 18, 1988).
J. Executive Order 12898, Environmental Justice
Executive Order 12898 ``Federal Actions To Address Environmental
Justice in Minority Populations and Low-Income Populations'' (59 FR
7629, Feb. 16, 1994), as amended by Executive Order 12948 (60 FR 6381,
Feb. 1, 1995) mandates that Federal agencies identify and address, as
appropriate, disproportionately high and adverse human health or
environmental effects of their programs, policies, and activities on
minority and low-income populations. It requires each Federal agency to
conduct its programs, policies, and activities that substantially
affect human health or the environment in a manner that ensures that
those programs, policies, and activities do not
[[Page 45683]]
have the effect of excluding persons from participation in, denying
persons the benefit of, or subjecting persons to discrimination because
of their race, color, or national origin or income level. The purpose
of this rule is to finalize the proposed regulations to implement the
new right of arbitration authorized by the DRRA, and to revise FEMA's
regulations regarding first and second PA appeals. Additionally, in
response to a public comment, FEMA is adding a definition of Regional
Administrator. Plus, FEMA made changes to the regulatory text regarding
first appeals and second appeals at 206.206(b)(1)(ii)(A) and
(b)(2)(ii)(A) as a result of the 60-day appeals deadline comments.
Finally, FEMA is making two technical revisions at 206.206(b) and
206.206(b)(3)(i)(A) to align the regulatory text with the dispute of
the eligibility for assistance or repayment of assistance language of
Section 423(d)(1) of the Stafford Act. There are no adverse effects and
no disproportionate effects on minority or low-income populations.
K. Executive Order 12988, Civil Justice Reform
This final rule meets applicable standards in Sections 3(a) and
3(b)(2) of Executive Order 12988, ``Civil Justice Reform'' (61 FR 4729,
Feb. 7, 1996), to minimize litigation, eliminate ambiguity, and reduce
burden.
L. Executive Order 13045, Protection of Children From Environmental
Health Risks and Safety Risks
This final rule will not create environmental health risks or
safety risks for children under Executive Order 13045, ``Protection of
Children From Environmental Health Risks and Safety Risks'' (62 FR
19885, Apr. 23, 1997).
M. Congressional Review of Agency Rulemaking
Under the Congressional Review of Agency Rulemaking Act (CRA), 5
U.S.C. 801-808, before a rule can take effect, the Federal agency
promulgating the rule must submit to Congress and to the Government
Accountability Office (GAO) a copy of the rule; a concise general
statement relating to the rule, including whether it is a major rule;
the proposed effective date of the rule; a copy of any cost-benefit
analysis; descriptions of the agency's actions under the Regulatory
Flexibility Act and the Unfunded Mandates Reform Act; and any other
information or statements required by relevant executive orders.
FEMA has submitted this final rule to the Congress and to GAO
pursuant to the CRA. OMB has determined that this rule is not a ``major
rule'' within the meaning of the CRA.
List of Subjects in 44 CFR Part 206
Administrative practice and procedure, Coastal zone, Community
facilities, Disaster assistance, Fire prevention, Grant programs--
housing and community development, Housing, Insurance,
Intergovernmental relations, Loan programs--housing and community
development, Natural resources, Penalties, Reporting and recordkeeping
requirements.
For the reasons stated in the preamble, the Federal Emergency
Management Agency amends 44 CFR part 206 as follows:
PART 206--FEDERAL DISASTER ASSISTANCE
0
1. The authority citation for part 206 continues to read as follows:
Authority: Robert T. Stafford Disaster Relief and Emergency
Assistance Act, 42 U.S.C. 5121 through 5207; Homeland Security Act
of 2002, 6 U.S.C. 101 et seq.; Department of Homeland Security
Delegation 9001.1.
0
2. Revise Sec. 206.206 to read as follows:
Sec. 206.206 Appeals and arbitrations.
(a) Definitions. The following definitions apply to this section:
Administrator means the Administrator of the Federal Emergency
Management Agency.
Amount in dispute means the difference between the amount of
financial assistance sought for a Public Assistance project and the
amount of financial assistance for which FEMA has determined such
Public Assistance project is eligible.
Applicant has the same meaning as the definition at Sec.
206.201(a).
Final agency determination means: (1) The decision of FEMA, if the
applicant or recipient does not submit a first appeal within the time
limits provided for in paragraph (b)(1)(ii)(A) of this section; or
(2) The decision of FEMA, if the applicant or recipient withdraws
the pending appeal and does not file a request for arbitration within
30 calendar days of the withdrawal of the pending appeal; or
(3) The decision of the FEMA Regional Administrator, if the
applicant or recipient does not submit a second appeal within the time
limits provided for in paragraph (b)(2)(ii)(A) of this section.
Recipient has the same meaning as the definition at Sec.
206.201(m).
Regional Administrator means an administrator of a regional office
of FEMA, or his/her designated representative.
Rural area means an area with a population of less than 200,000
outside an urbanized area.
Urbanized area means an area that consists of densely settled
territory that contains 50,000 or more people.
(b) Appeals and Arbitrations. An eligible applicant or recipient
may appeal any determination previously made related to an application
for or the provision of Public Assistance according to the procedures
of this section. An eligible applicant may request arbitration to
dispute the eligibility for assistance or repayment of assistance.
(1) First Appeal. The applicant must make a first appeal in writing
and submit it electronically through the recipient to the Regional
Administrator. The recipient must include a written recommendation on
the applicant's appeal with the electronic submission of the
applicant's first appeal to the Regional Administrator. The recipient
may make recipient-related appeals to the Regional Administrator.
(i) Content. A first appeal must:
(A) Contain all documented justification supporting the applicant
or recipient's position;
(B) Specify the amount in dispute, as applicable; and
(C) Specify the provisions in Federal law, regulation, or policy
with which the applicant or recipient believes the FEMA determination
was inconsistent.
(ii) Time Limits. (A) The applicant may make a first appeal through
the recipient within 60 calendar days from the date of the FEMA
determination that is the subject of the appeal and the recipient must
electronically forward to the Regional Administrator the applicant's
first appeal with a recommendation within 120 calendar days from the
date of the FEMA determination that is the subject of the appeal. If
the applicant or the recipient do not meet their respective 60-calendar
day and 120-calendar day deadlines, FEMA will deny the appeal. A
recipient may make a recipient-related first appeal within 60 calendar
days from the date of the FEMA determination that is the subject of the
appeal and must electronically submit their first appeal to the
Regional Administrator.
(B) Within 90 calendar days following receipt of a first appeal, if
there is a need for additional information, the Regional Administrator
will provide electronic notice to the recipient and applicant. If there
is no need for additional information, then FEMA will not provide
notification. The Regional Administrator will generally allow the
[[Page 45684]]
recipient 30 calendar days to provide any additional information.
(C) The Regional Administrator will provide electronic notice of
the disposition of the appeal to the applicant and recipient within 90
calendar days of receipt of the appeal or within 90 calendar days
following the receipt of additional information or following expiration
of the period for providing the information.
(iii) Technical Advice. In appeals involving highly technical
issues, the Regional Administrator may, at his or her discretion,
submit the appeal to an independent scientific or technical person or
group having expertise in the subject matter of the appeal for advice
or recommendation. The period for this technical review may be in
addition to other allotted time periods. Within 90 calendar days of
receipt of the report, the Regional Administrator will provide
electronic notice of the disposition of the appeal to the recipient and
applicant.
(iv) Effect of an Appeal. (A) FEMA will take no action to implement
any determination pending an appeal decision from the Regional
Administrator, subject to the exceptions in paragraph (b)(1)(iv)(B) of
this section.
(B) Notwithstanding paragraph (b)(1)(iv)(A) of this section, FEMA
may:
(1) Suspend funding (see 2 CFR 200.339);
(2) Defer or disallow other claims questioned for reasons also
disputed in the pending appeal; or
(3) Take other action to recover, withhold, or offset funds if
specifically authorized by statute or regulation.
(v) Implementation. If the Regional Administrator grants an appeal,
the Regional Administrator will take appropriate implementing
action(s).
(vi) Guidance. FEMA may issue separate guidance as necessary to
supplement paragraph (b)(1) of this section.
(2) Second Appeal. If the Regional Administrator denies a first
appeal in whole or in part, the applicant may make a second appeal in
writing and submit it electronically through the recipient to the
Assistant Administrator for the Recovery Directorate. The recipient
must include a written recommendation on the applicant's appeal with
the electronic submission of the applicant's second appeal to the
Assistant Administrator for the Recovery Directorate. The recipient may
make recipient-related second appeals to the Assistant Administrator
for the Recovery Directorate.
(i) Content. A second appeal must:
(A) Contain all documented justification supporting the applicant
or recipient's position;
(B) Specify the amount in dispute, as applicable; and
(C) Specify the provisions in Federal law, regulation, or policy
with which the applicant or recipient believes the FEMA determination
was inconsistent.
(ii) Time Limits. (A) If the Regional Administrator denies a first
appeal in whole or in part, the applicant may make a second appeal
through the recipient within 60 calendar days from the date of the
Regional Administrator's first appeal decision and the recipient must
electronically forward to the Assistant Administrator for the Recovery
Directorate the applicant's second appeal with a recommendation within
120 calendar days from the date of the Regional Administrator's first
appeal decision. If the applicant or the recipient do not meet their
respective 60-calendar day and 120-calendar day deadlines, FEMA will
deny the appeal. If the Regional Administrator denies a recipient-
related first appeal in whole or in part, the recipient may make a
recipient-related second appeal within 60 calendar days from the date
of the Regional Administrator's first appeal decision and the recipient
must electronically submit their second appeal to the Assistant
Administrator for the Recovery Directorate.
(B) Within 90 calendar days following receipt of a second appeal,
if there is a need for additional information, the Assistant
Administrator for the Recovery Directorate will provide electronic
notice to the recipient and applicant. If there is no need for
additional information, then FEMA will not provide notification. The
Assistant Administrator for the Recovery Directorate will generally
allow the recipient 30 calendar days to provide any additional
information.
(C) The Assistant Administrator for the Recovery Directorate will
provide electronic notice of the disposition of the appeal to the
recipient and applicant within 90 calendar days of receipt of the
appeal or within 90 calendar days following the receipt of additional
information or following expiration of the period for providing the
information.
(iii) Technical Advice. In appeals involving highly technical
issues, the Assistant Administrator for the Recovery Directorate may,
at his or her discretion, submit the appeal to an independent
scientific or technical person or group having expertise in the subject
matter of the appeal for advice or recommendation. The period for this
technical review may be in addition to other allotted time periods.
Within 90 calendar days of receipt of the report, the Assistant
Administrator for the Recovery Directorate will provide electronic
notice of the disposition of the appeal to the recipient and applicant.
(iv) Effect of an Appeal. (A) FEMA will take no action to implement
any determination pending an appeal decision from the Assistant
Administrator for the Recovery Directorate, subject to the exceptions
in paragraph (b)(2)(iv)(B) of this section.
(B) Notwithstanding paragraph (b)(2)(iv)(A) of this section, FEMA
may:
(1) Suspend funding (see 2 CFR 200.339);
(2) Defer or disallow other claims questioned for reasons also
disputed in the pending appeal; or
(3) Take other action to recover, withhold, or offset funds if
specifically authorized by statute or regulation.
(v) Implementation. If the Assistant Administrator for the Recovery
Directorate grants an appeal, the Assistant Administrator for the
Recovery Directorate will direct the Regional Administrator to take
appropriate implementing action(s).
(vi) Guidance. FEMA may issue separate guidance as necessary to
supplement paragraph (b)(2) of this section.
(3) Arbitration. (i) Applicability. An applicant may request
arbitration from the Civilian Board of Contract Appeals (CBCA) if:
(A) There is a dispute of the eligibility for assistance or of the
repayment of assistance arising from a major disaster declared on or
after January 1, 2016; and
(B) The amount in dispute is greater than $500,000, or greater than
$100,000 for an applicant for assistance in a rural area; and
(C) The Regional Administrator has denied a first appeal decision
or received a first appeal but not rendered a decision within 180
calendar days of receipt.
(ii) Limitations. A request for arbitration is in lieu of a second
appeal.
(iii) Request for Arbitration. (A) An applicant may initiate
arbitration by submitting an electronic request simultaneously to the
recipient, the CBCA, and FEMA. See 48 CFR part 6106.
(B) Time Limits. (1) An applicant must submit a request for
arbitration within 60 calendar days from the date of the Regional
Administrator's first appeal decision; or
(2) If the first appeal was timely submitted, and the Regional
Administrator has not rendered a decision within 180 calendar days of
[[Page 45685]]
receiving the appeal, an applicant may arbitrate the decision of FEMA.
To request arbitration, the applicant must first electronically submit
a withdrawal of the pending appeal simultaneously to the recipient and
the FEMA Regional Administrator. The applicant must then submit a
request for arbitration to the recipient, the CBCA, and FEMA within 30
calendar days from the date of the withdrawal of the pending appeal.
(C) Content of request. The request for arbitration must contain a
written statement that specifies the amount in dispute, all
documentation supporting the position of the applicant, the disaster
number, and the name and address of the applicant's authorized
representative or counsel.
(iv) Expenses. Expenses for each party will be paid by the party
who incurred the expense.
(v) Guidance. FEMA may issue separate guidance as necessary to
supplement paragraph (b)(3) of this section.
(c) Finality of decision. (1) A FEMA final agency determination or
a decision of the Assistant Administrator for the Recovery Directorate
on a second appeal constitutes a final decision of FEMA. Final
decisions are not subject to further administrative review.
(2) In the alternative, a decision of the majority of the CBCA
panel constitutes a final decision, binding on all parties. See 48 CFR
6106.613. Final decisions are not subject to further administrative
review.
Deanne B. Criswell,
Administrator, Federal Emergency Management Agency.
[FR Doc. 2021-17213 Filed 8-13-21; 8:45 am]
BILLING CODE 9111-19-P
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</html>Indexed from Federal Register on August 16, 2021.
This is legal information, not legal advice. Laws vary by jurisdiction and change frequently. Always verify current law with official sources and consult a licensed attorney in your jurisdiction for advice on your specific situation.