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Federal Register / Vol. 86, No. 155 / Monday, August 16, 2021 / Rules and Regulations
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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 FEMAs 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 publics 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 423d of the Stafford Act, if FEMA 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. For these reasons, FEMA did not alter the regulatory text at 206.206b1iii and b2iii as a result of the comments.
L. 30 Days To Provide Additional Information In the NPRM, under paragraphs 206.206b1iiB and b2iiB, 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
201900120003 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 publics 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 FEMA2019
00120003 is correct that the new 30day 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
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at 206.206b1iiB and b2iiB as a result of the comment.
M. Untimeliness and Imposition of Penalties Upon FEMA
The State DEM FEMA20190012
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 90day deadline to decide appeals.
However, FEMA has a public assistance second appeals tracker available to the public at https www.fema.gov/about/
openfema/data-sets/fema-publicassistance-second-appeals-tracker.
With regards to the State DEMs FEMA201900120008 suggestion that untimeliness on FEMAs 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 FEMA20190012
0008 commented that 206.206b1v and b2v 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
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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 FEMAs ability to meet timelines for other actions. Therefore, FEMA did not make any changes to the regulatory text at 206.206b1v and b2v as a result of the comment.
O. Content of Arbitration Request A State DEM FEMA20190012
0008 commented on 206.206b3iiiC, 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 applicants 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 206.206b3iiiC as a result of the comment.
P. Emergency Versus Major Disaster Declaration Determinations As mentioned before, the State DEM
FEMA201900120008 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
7 The Assistant Administrator for the Recovery Directorate will direct the Regional Administrator to take appropriate implementing actions regarding successful second appeals.

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