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Federal Register / Vol. 86, No. 155 / Monday, August 16, 2021 / Rules and Regulations
lotter on DSK11XQN23PROD with RULES1

authority of the American Recovery and Reinvestment Act of 2009 ARRA.2
As amended by Section 1219 of the DRRA, 42 U.S.C. 5189ad 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 FEMAs 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 FEMA2019
00120002 was unconditionally supportive of the NPRM, as they found the DRRA population thresholds fair.
The second commenter, a member of the public FEMA201900120003, 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 FEMA201900120004, suggested FEMA adjust the amount in dispute thresholds for hyper-inflation.
This commenter also submitted a duplicative comment which was withdrawn FEMA201900120005.
The second anonymous commenter submitted an unrelated comment FEMA20190012DRAFT0006, which was not posted to the Docket.
The fourth commenter, from a State Emergency Management Agency FEMA201900120006, also asked whether the NPRMs combination of the applicant and recipients 60-day 2 American Recovery and Reinvestment Act of 2009, Public Law 1115, 123 Stat. 115 Feb. 17, 2009, 26 U.S.C. 1 note.

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submission requirements could equate to additional submission time for appeals. The fifth commenter, from the same State Emergency Management Agency FEMA201900120007, asked numerous questions regarding applicant and recipient proposed appeal submission timeframes. The sixth commenter, a State Division of Emergency Management DEM FEMA
201900120008, 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 casesor parts of casesand a detailed table of their comments.
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
201900120004 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 hyperinflation. 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 FEMAs discretion to change them in this rulemaking. While FEMA appreciates the commenters 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 3 Disaster Relief Act of 1974, Public Law 93288, 88 Stat. 143 May 22, 1974, as amended, 42 U.S.C.
5121 et seq.

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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 rules definition of urbanized area as an area that consists of densely settled territory that contains 50,000 or more people.
An anonymous commenter FEMA
201900120002 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 commenters 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
201900120003 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 FEMA201900120003 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
206.201a, is a State agency, local government, or eligible private nonprofit organization PNP submitting an application to the recipient for assistance under the recipients grant.
The recipient, as defined at 44 CFR
206.201m, 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 206.201a already includes the term subrecipient. Since an applicant submits an application to the recipient for assistance under the recipients grant, the recipient and the applicant are not interchangeable 4 See Qualifying Urban Areas for the 2010
Census, 77 FR 18651, Mar. 27, 2012.

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