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Federal Register / Vol. 86, No. 155 / Monday, August 16, 2021 / Rules and Regulations 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 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. 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 206.206a. 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 206.201a and Recipient has the same meaning as the definition at 206.201m.
The final non-substantive stylistic and grammar changes from the NPRM were made to 206.206c 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 206.206c1 by revising constitute to constitutes.
Since, FEMA split paragraph 206.206c 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.

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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
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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 3f 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 RAs 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
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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.
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 Administrators 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 FEMAs determination in the case of an applicant not receiving the first appeal decision within 180 days or to defend FEMAs first appeal decision.
The final rule will codify regulations for the arbitration process as directed by 42 U.S.C. 5189ad5. 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
As amended by Section 1219 of the DRRA, 42 U.S.C. 5189ad 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
This final rule establishes a 60calendar day deadline for submitting 8 Tribes may choose to apply for PA
independently as a recipient tribal declaration or may submit through their State as a subrecipient.
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 32719. 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: https
www.fema.gov/sites/default/files/2020-07/fema_
DRRA-1219-public-assistance-arbitration-right_factsheet.pdf. 220. Accessed June 8, 2021.
10 48 CFR part 6101, Rules of Procedure of the Civilian Board of Contract Appeals, also covers PA
arbitrations.

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