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Federal Register / Vol. 86, No. 155 / Monday, August 16, 2021 / Rules and Regulations
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 recipients 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 DEMs 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 60day period, the date of FEMAs determination, and the date of the applicant and recipients receipt thereof should be identical with the implementation of electronic transmission. Since electronic transmission addresses the State DEMs 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 206.206b1iiA and b2iiA 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 FEMA20190012
0008 also suggested that the regulatory language in 206.206b3iiiB2 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
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to alter or ignore this deadline.
Consequently, FEMA did not make any changes to the regulatory text at 206.206b3iiiB2 as a result of these comments.
However, FEMA provided clarifying edits to 206.206b3iiiB2 in the final rule, so that an applicant understands that if they choose arbitration pursuant to Section 423d of the Stafford Act, as FEMA has not responded to an applicants 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 206.206b3iiiB2 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 206.206b3iiiB2 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 206.206b3iiiB2 by replacing may with must and by adding the phrase to the recipient, the CBCA, and FEMA after arbitration. So, 206.206b3iiiB2 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 206.206b3iiiB2, then the applicants request for arbitration will be denied for timeliness.
I. Simultaneously Provide Decisions to Applicants & Recipients The State DEM FEMA20190012
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

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proposed in the NPRMs 206.206b1iii; 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 FEMA20190012
0008 commented that in both paragraphs 206.206b1iiC and b2iiC 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 423b 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 rules 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 423d of the Stafford Act, if the agency fails to respond to an applicants 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 206.206b1iiC and b2iiC as a result of the comments.
K. 90-Day Deadline for Technical Information Proposed paragraphs 206.206b1iii and b2iii 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
FEMA201900120008 commented that FEMA does not have the authority
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