[Federal Register Volume 62, Number 226 (Monday, November 24, 1997)]
[Proposed Rules]
[Pages 62540-62542]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 97-30808]


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FEDERAL EMERGENCY MANAGEMENT AGENCY

44 CFR Part 206

RIN 3067-AC67


Disaster Assistance; Public Assistance Program Appeals; Hazard 
Mitigation Grant Program Appeals

AGENCY: Federal Emergency Management Agency (FEMA).

ACTION: Proposed rule.

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SUMMARY: This proposed rule would change the procedure for the review 
and disposition of appeals related to Public Assistance grants and the 
Hazard Mitigation Grant Program (HMGP). The rule would reduce from 
three to one the number of appeals allowed, would reduce delays in 
final resolution of appeals, and would make new provisions for 
reimbursing administrative costs for preparing and processing appeals.

DATES: We invite your comments on this proposed rule, which may be 
submitted on or before January 23, 1998.

ADDRESSES: Please send any comments to the Rules Docket Clerk, Office 
of the General Counsel, Federal Emergency Management Agency, 500 C 
Street SW., room 840, Washington, DC 20472, (facsimile) (202) 646-4536.

FOR FURTHER INFORMATION CONTACT: Regarding HMGP appeals, Robert F. 
Shea, Mitigation Directorate, Federal Emergency Management Agency, 500 
C Street, SW., Washington, DC 20472, (202) 646-3619, (facsimile) (202) 
646-3104; regarding Public Assistance appeals, Melissa M. Howard, 
Response and Recovery Directorate, Federal Emergency Management Agency, 
500 C Street, SW., Washington, DC 20472, (202) 646-3053, facsimile 
(202) 646-3304.

SUPPLEMENTARY INFORMATION: Under section 423 of the Robert T. Stafford 
Disaster Relief and Emergency Assistance Act (Stafford Act), 42 U.S.C. 
5189a, any decision regarding eligibility or amount of assistance may 
be appealed. Currently FEMA allows three appeal levels, respectively, 
to the Regional Director, the Associate Director, and to the Director.
    This proposed rule would reduce from three to one the number of 
appeals allowed to be taken by an applicant. The authority for appeal 
decisions will rest with the Regional Director, who will consult with 
FEMA Headquarters on all potential appeal denials when the amount in 
question is $1,000,000 or more in Federal funds.
    This proposed change would support FEMA policy that the Regional 
Director is responsible for final decisions on all Public Assistance 
and HMGP funding. The Regional Director's appeal determination would be 
the Agency's final position on the matter.
    The intent of this change is to reduce the significant amount of 
time and associated costs incurred by FEMA, grantees, and subgrantees 
to resolve appeal issues. Given the timeframes allowed, the current 
process can take up

[[Page 62541]]

to two years to make a final decision by the Director of the Agency. 
This proposed change would provide applicants with a final resolution 
sooner than previously. All provisions for fair and impartial 
consideration required by the Stafford Act would be maintained.
    The rule would be effective for all appeals made on or after the 
effective date of the rule. Appeals pending from a decision of a 
Regional Director or an Associate Director/ Executive Associate 
Director before the effective date of the rule may be appealed to the 
next higher appeal level in accordance with Sec. Sec. 202.206 and 
206.440 as they existed before the effective date of this rule. The 
decision of the FEMA official at the next higher appeal level would be 
final. For example, if a Regional Director had not +made a decision on 
an appeal pending before the effective date of the rule the appeal 
would be decided in accordance with the new rule, and the decision of 
the Regional Director would be final. If a Regional Director had made a 
decision before the effective date of the rule, the decision could be 
appealed to the Associate Director or Executive Associate Director, 
whose decision would be final. If the appeal had been decided at the 
Associate Director level, the decision could be appealed to the 
Director, whose decision would be final.
    The proposed rule also provides that grantees and subgrantees would 
be responsible for separately tracking and accounting for all costs 
associated with preparing and processing appeals. FEMA would reimburse 
grantees' and subgrantees' administrative costs for preparing and 
processing appeals only when an appeal is decided in favor of the 
applicant. This change is proposed in the interest of responsible use 
of tax dollars, and in the face of an increasing number of appeals that 
have been identified as frivolous or without merit.
    This proposed rule supersedes the proposed Public Assistance appeal 
procedure published on October 24, 1996, 61 FR 55122-55123.

National Environmental Policy Act

    This proposed rule is categorically excluded from the preparation 
of environmental impact statements and environmental assessments as an 
administrative action in support of normal day-to-day grant activities. 
No environmental impact statement or environmental assessment has been 
prepared.

Executive Order 12866, Regulatory Planning and Review

    This proposed rule is not a significant regulatory action within 
the meaning of Sec. 2(f) of E.O. 12866 of September 30, 1993, 58 FR 
51735, but attempts to adhere to the regulatory principles set forth in 
E.O. 12866. The rule has not been reviewed by the Office of Management 
and Budget under E.O. 12866.

Paperwork Reduction Act

    This proposed rule does not involve any collection of information 
for the purposes of the Paperwork Reduction Act.

Regulatory Flexibility Act

    The Director certifies that this proposed rule will not, if 
promulgated, have a significant economic impact on a substantial number 
of small entities. The rule would reduce the number of appeals that an 
entity might make and is expected to reduce administrative burden and 
compliance requirements associated with appeals. A regulatory 
flexibility analysis has not been prepared.

Executive Order 12612, Federalism

    This proposed rule involves no policies that have federalism 
implications under E.O. 12612, Federalism, dated October 26, 1987.

Executive Order 12778, Civil Justice Reform

    This proposed rule complies with applicable standards of 
Sec. 2(b)(2) of E.O. 12778.

List of Subjects in 44 CFR Part 206

    Administrative practice and procedure, Disaster assistance.

    Accordingly, 44 CFR part 206 is proposed to be amended as follows:
    1. The authority citation for part 206 continues to read as 
follows:

    Authority: The Robert T. Stafford Disaster Relief and Emergency 
Assistance Act, 42 U.S.C. 5121 et seq.; Reorganization Plan No. 3 of 
1978, 43 FR 41943, 3 CFR, 1978 Comp., p. 329; E.O. 12127, 44 FR 
19367, 3 CFR, 1979 Comp., p.376; E.O. 12148, 44 FR 43239, 3 CFR, 
1979 Comp., p. 412; and E.O. 12673, 54 FR 12571, 3 CFR, 1989 Comp., 
p. 214.

    2. Section 206.206 is revised to read as follows:


Sec. 206.206  Appeals.

    An eligible applicant, subgrantee, or grantee may appeal any 
determination previously made related to an application for or the 
provision of Federal assistance according to the following procedures.
    (a) Format and Content. The applicant or subgrantee will make the 
appeal to the Regional Director, in writing, through the grantee. The 
grantee shall review and evaluate all subgrantee appeals before 
submission to the Regional Director. The grantee may make grantee-
related appeals to the Regional Director. The appeal shall contain 
documented justification supporting the appellant's position, 
specifying the monetary figure in dispute and the provisions in Federal 
law, regulation, or policy with which the appellant believes the 
initial action was inconsistent.
    (b) Levels of Appeal. The Regional Director is the deciding 
official on all appeals. The Regional Director will consult with FEMA 
Headquarters during the review of all potential appeal denials when the 
amount in question is $1,000,000 or more in Federal funds.
    (c) Time Limits. (1) Appellants must make appeals within 60 days 
after receipt of a notice of the action that is being appealed.
    (2) The grantee will review and forward appeals from an applicant 
or subgrantee, with a written recommendation, to the Regional Director 
within 60 days of receipt.
    (3) Within 90 days following receipt of an appeal, the Regional 
Director will notify the grantee in writing as to the disposition of 
the appeal or of the need for additional information. A request by the 
Regional Director for additional information will include a date by 
which the information must be provided. Within 90 days following the 
receipt of requested additional information or the expiration of the 
period for providing the information, the Regional Director will notify 
the grantee in writing of the disposition of the appeal. If the 
decision is to grant the appeal, the Regional Director will take 
appropriate implementing action.
    (d) Technical Advice. In appeals involving highly technical issues, 
the Regional Director may, at his or her discretion, submit the appeal 
to an independent scientific or technical person or group having 
expertise in the subject matter of the appeal for advice or 
recommendation. The period for this technical review may be in addition 
to other allotted time periods. Within 90 days of receipt of the 
report, the Regional Director will notify the grantee in writing of the 
disposition of the appeal.
    (e) Administrative costs of appeal. Grantees and subgrantees must 
track and account for all costs associated with preparing and 
processing appeals. FEMA will not reimburse grantees' and subgrantees' 
administrative costs for preparing and processing appeals that are not 
decided in favor of the applicant.
    (f) Transition. (1) This rule is effective for all appeals filed on 
or after [30 days

[[Page 62542]]

after date of publication of final rule in the Federal Register].
    (2) Appeals pending from a decision of a Regional Director or an 
Associate Director/Executive Associate Director before [the effective 
date of the final rule] may be appealed to the next higher appeal level 
in accordance with 44 CFR 206.206 as it existed before [the effective 
date of the final rule]. The decision of the FEMA official at the next 
higher appeal level shall be final.
    3. Section 206.440 is revised to read as follows:


Sec. 206.440  Appeals.

    An eligible applicant, subgrantee, or grantee may appeal any 
determination previously made related to an application for or the 
provision of Federal assistance according to the following procedures.
    (a) Format and Content. The applicant or subgrantee will make the 
appeal to the Regional Director, in writing, through the grantee. The 
grantee shall review and evaluate all subgrantee appeals before 
submission to the Regional Director. The grantee may make grantee-
related appeals to the Regional Director. The appeal shall contain 
documented justification supporting the appellant's position, 
specifying the monetary figure in dispute and the provisions in Federal 
law, regulation, or policy with which the appellant believes the 
initial action was inconsistent.
    (b) Levels of Appeal. The Regional Director is the deciding 
official on all appeals. The Regional Director will consult with FEMA 
Headquarters during the review of all potential appeal denials when the 
amount in question is $1,000,000 or more in Federal funds.
    (c) Time Limits. (1) Appellants must make appeals within 60 days 
after receipt of a notice of the action that is being appealed.
    (2) The grantee will review and forward appeals from an applicant 
or subgrantee, with a written recommendation, to the Regional Director 
within 60 days of receipt.
    (3) Within 90 days following receipt of an appeal, the Regional 
Director will notify the grantee in writing as to the disposition of 
the appeal or of the need for additional information. A request by the 
Regional Director for additional information will include a date by 
which the information must be provided. Within 90 days following the 
receipt of requested additional information or the expiration of the 
period for providing the information, the Regional Director will notify 
the grantee in writing of the disposition of the appeal. If the 
decision is to grant the appeal, the Regional Director will take 
appropriate implementing action.
    (d) Technical Advice. In appeals involving highly technical issues, 
the Regional Director may, at his or her discretion, submit the appeal 
to an independent scientific or technical person or group having 
expertise in the subject matter of the appeal for advice or 
recommendation. The period for this technical review may be in addition 
to other allotted time periods. Within 90 days of receipt of the 
report, the Regional Director will notify the grantee in writing of the 
disposition of the appeal.
    (e) Administrative costs of appeal. Grantees and subgrantees must 
track and account for all costs associated with preparing and 
processing appeals. FEMA will not reimburse grantees' and subgrantees' 
administrative costs for preparing and processing appeals that are not 
decided in favor of the applicant.
    (f) Transition. (1) This rule is effective for all appeals filed on 
or after [30 days after date of publication of final rule in the 
Federal Register].
    (2) Appeals pending from a decision of a Regional Director or an 
Associate Director/Executive Associate Director before [the effective 
date of the final rule] may be appealed to the next higher appeal level 
in accordance with 44 CFR 206.440 as it existed before [the effective 
date of the final rule]. The decision of the FEMA official at the next 
higher appeal level shall be final.

    Dated: November 17, 1997.
James L. Witt,
Director.
[FR Doc. 97-30808 Filed 11-21-97; 8:45 am]
BILLING CODE 6718-02-P