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Federal Register / Vol. 86, No. 155 / Monday, August 16, 2021 / Rules and Regulations the same date, while providing the applicant with a clear timeline for compliance. Specifically the deadline is triggered by FEMAs transmittal of the determination, not the date the applicant views the determination.
Nonetheless, a member of the public FEMA201900120003 questioned whether the NPRMs 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 FEMA20190012
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 FEMAs 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 determinations 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 FEMAs 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
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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 206.206b1ii and b2ii as a result of the comments.
G. First and Second Appeals Deadlines60/60-Day Versus 120-Day A member of the public FEMA
201900120003 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 applicants 60-day deadline remains, as the Stafford Act requires it for appeals. See 423a of the Stafford Act. In order to resolve the confusion identified by the public commenter FEMA201900120003, 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 206.206b1iiA and b2iiA
with the following: if the applicant or the recipient do not meet their respective 60-calendar day and 120calendar 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 if either the Applicant or Recipient does not meet the respective 60-day deadlines, FEMA will deny the appeal as untimely.
Also in reference to the 120-day deadline, a State agency FEMA2019
00120006 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, 6 Public Assistance Program and Policy Guide Version 4 fema.gov.

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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 FEMA201900120007
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 120calendar day deadlines, FEMA will deny the appeal.
Finally, the State DEM FEMA2019
00120008 suggested that the regulatory language was misleading because it implies that FEMA will deny all first appeals it does not receive by the recipients 120-day deadline and is not clear that applicants untimeliness will jeopardize the appeal. As the scenarios above make clear, both an applicant and recipients untimeliness will continue to jeopardize either a first or second appeal based upon their respective 60-calendar day and 120calendar day deadlines. For these reasons, FEMA made changes to the regulatory text regarding first appeals at 206.206b1iiA and regarding second appeals at b2iiA as a result of the comments.
H. Denial Based Upon Timeliness The State DEM FEMA20190012
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.

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