45660 Federal Register / Vol. 86, No. 155 / Monday, August 16, 2021 / Rules and Regulations 

1 Disaster Recovery Reform Act of 2018, Public 

Law 115–254, 132 Stat. 3186 (Oct. 5, 2018), 42 

U.S.C. 5189a. 

recipient if there is sufficient evidence 

in the medical record of an occurrence 

of TRALI and the pulmonary edema is 

not caused by cardiac dysfunction or 

other causes and occurs within 72 of 

receiving a blood product containing 

plasma, in this case VIGIV. 

(12) Acute renal failure (ARF). ARF is 

the sudden loss of the kidneys’ ability 

to perform their main function of 

eliminating excess fluids and 

electrolytes (salts), as well as waste 

material from the blood. ARF, which is 

also called acute kidney injury, 

develops rapidly over a few hours or a 

few days. ARF can be fatal and requires 

intensive treatment; however, ARF may 

be reversible. ARF may cause 

permanent loss of kidney function, or 

end-stage renal disease necessitating 

dialysis or transplant. A Table 2 injury 

for ARF has occurred if there is 

sufficient evidence in the medical 

record of an occurrence of ARF within 

the identified timeframe and the 

individual received the associated 

countermeasure (VIGIV). 

(13) Drug-induced aseptic meningitis 

(DIAM). (i) DIAM is an inflammation of 

the meninges (linings of the brain) that 

is not caused by a bacteria or virus, but 

is caused by a drug or medication. The 

symptoms of meningitis include severe 

headache, nuchal (neck) rigidity, 

drowsiness, fever, photophobia (light 

sensitivity), painful eye movements, 

nausea, and vomiting. Discontinuation 

of the medication leads to a resolution 

of the symptoms. DIAM is thought to 

occur because of an immunological 

hypersensitivity reaction to a specific 

medication. In the case of 

immunoglobulins, DIAM may be 

precipitated by the immunologically 

active components within the plasma or 

because of the stabilizers used within 

the product. The symptoms of DIAM 

may reoccur with another exposure to 

the offending agent. 

(ii) A Table 2 injury for DIAM has 

occurred in a recipient if there is 

sufficient evidence in the medical 

record of an occurrence of DIAM within 

the identified timeframe and the 

individual received the associated 

countermeasure (VIGIV). DIAM 

occurring in the absence of the use of 

VIGIV, or DIAM occurring with the use 

of VIGIV outside the established 

timeframe of onset, which is any time 

after the first dose and up to 48 hours 

after the last dose of this medication, is 

not a Table 2 injury. 

(14) Hemolysis. Hemolysis is the 

physical breakdown of red blood cells 

(RBCs) either through natural attrition 

or as caused by external factors. The 

RBC’s function is to transport oxygen 

throughout the body in the hemoglobin 

contained within the RBC. Additionally, 

the RBCs contain the majority of the 

body’s potassium stores. With 

hemolysis, the body is unable to 

transport oxygen effectively, and the 

person develops hypoxia. Additionally, 

the rapid breakdown of the cell releases 

large amounts of potassium into the 

blood stream, which can cause 

abnormal heart rhythms and cardiac 

arrest. In severe cases of hemolysis, a 

blood transfusion may be required to 

correct the resulting anemia. A Table 2 

injury for hemolysis has occurred if 

there is sufficient evidence in the 

medical record of an occurrence of 

hemolysis, and the patient received the 

associated countermeasure (VIGIV). 

Hemolysis occurring in the absence of 

the use of VIGIV and outside of the 

timeframe of 12 hours to 14 days after 

receiving VIGIV is not a Table 2 injury. 

Hemolysis occurring from a more likely 

alternative diagnosis, such as infections, 

toxins, poisons, hemodialysis, or 

medications, is not a Table 2 injury. 

This list of conditions that can cause 

hemolysis, not associated with VIGIV, is 

not exhaustive, and all additional 

diagnoses within the medical 

documentation will be evaluated. 

[FR Doc. 2021–17216 Filed 8–13–21; 8:45 am] 

BILLING CODE 4165–15–P 

DEPARTMENT OF HOMELAND 

SECURITY 

Federal Emergency Management 

Agency 

44 CFR Part 206 

[Docket ID: FEMA–2019–0012] 

RIN 1660–AB00 

Public Assistance Appeals and 

Arbitrations 

AGENCY: Federal Emergency 

Management Agency, DHS. 

ACTION: Final rule. 

SUMMARY: This final rule implements 

the new right of arbitration authorized 

by the Disaster Recovery Reform Act of 

2018 (DRRA) and revises the Federal 

Emergency Management Agency’s 

regulations regarding first and second 

Public Assistance appeals. 

DATES: This rule is effective on January 

1, 2022. Proposed information 

collection comments must be submitted 

on or before September 15, 2021. 

ADDRESSES: The docket for this 

rulemaking is available for inspection 

using the Federal eRulemaking Portal: 

http://www.regulations.gov and can be 

viewed by following that website’s 

instructions. 

Written comments and 

recommendations for the proposed 

information collection should be sent 

within 30 days of publication of this 

notice to www.reginfo.gov/public/do/ 

PRAMain. Find this particular 

information collection by selecting 

‘‘Currently under 30-day Review—Open 

for Public Comments’’ or by using the 

search function. 

FOR FURTHER INFORMATION CONTACT: 

Shabnaum Amjad, Deputy Associate 

Chief Counsel, Regulatory Affairs, Office 

of Chief Counsel, Federal Emergency 

Management Agency, 500 C Street SW, 

Washington, DC 20472. Phone: 202– 

212–2398 or email: Shabnaum.Amjad@

fema.dhs.gov. 

SUPPLEMENTARY INFORMATION: 

I. Proposed Rule 

On August 31, 2020, the Federal 

Emergency Management Agency 

(FEMA) published a Notice of Proposed 

Rulemaking (NPRM) (85 FR 53725) 

proposing to revise its current Public 

Assistance (PA) appeals regulation at 44 

CFR 206.206 to add in the new right to 

arbitration under the Disaster Recovery 

Reform Act of 2018 (DRRA),1 in 

conjunction with some revisions to the 

current appeals process. The DRRA 

adds arbitration as a permanent 

alternative to a second appeal under the 

PA Program. Additionally, applicants 

that have had a first appeal pending 

with FEMA for more than 180 calendar 

days may withdraw such appeal and 

submit a request for arbitration. In both 

cases, the amount in dispute must be 

greater than $500,000, or greater than 

$100,000 for an applicant for assistance 

in a rural area. The other major 

proposed revisions to 44 CFR 206.206 

included adding definitions; adding 

subparagraphs to clarify what actions 

FEMA may take and will not take while 

an appeal is pending and stating that 

FEMA may issue separate guidance as 

necessary, similar to current 44 CFR 

206.209(m); adding a finality of decision 

paragraph; requiring electronic 

submission for appeals and arbitrations 

documents; and clarifying overall time 

limits for first and second appeals. 

These proposed rules for arbitration 

are separate and distinct from the 

arbitration provisions located in 44 CFR 

206.209. Under § 206.209, applicants 

may request arbitration to resolve 

disputed PA applications under major 

disaster declarations for Hurricanes 

Katrina and Rita, pursuant to the 


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2American Recovery and Reinvestment Act of 

2009, Public Law 111–5, 123 Stat. 115 (Feb. 17, 

2009), 26 U.S.C. 1 note. 

3 Disaster Relief Act of 1974, Public Law 93–288, 

88 Stat. 143 (May 22, 1974), as amended, 42 U.S.C. 

5121 et seq. 

4See ‘‘Qualifying Urban Areas for the 2010 

Census,’’ 77 FR 18651, Mar. 27, 2012. 

authority of the American Recovery and 

Reinvestment Act of 2009 (ARRA).2

As amended by Section 1219 of the 

DRRA, 42 U.S.C. 5189a(d) names the 

Civilian Board of Contract Appeals 

(CBCA) as the entity responsible for 

conducting public assistance 

arbitrations. Therefore, FEMA 

recommends that applicants review the 

CBCA regulations at 48 CFR part 6101, 

Rules of Procedure of the Civilian Board 

of Contract Appeals, and 48 CFR part 

6106, Rules of Procedure for Arbitration 

of Public Assistance Eligibility or 

Repayment, for additional CBCA rules 

of procedure, as both cover FEMA 

public assistance arbitrations. 

II. Discussion of Public Comments and 

FEMA’s Responses 

The public comment period of the 

NPRM closed on October 30, 2020. 

FEMA received germane comments 

from six separate commenters. The first 

anonymous commenter [FEMA–2019– 

0012–0002] was unconditionally 

supportive of the NPRM, as they found 

the DRRA population thresholds fair. 

The second commenter, a member of the 

public [FEMA–2019–0012–0003], 

addressed five separate issues regarding 

the NPRM in their comment including: 

Suggesting the use of ‘‘applicant’’ to 

refer to all entities; suggesting the use of 

‘‘appellant’’ instead of ‘‘applicant’’ and 

‘‘subrecipient’’; stating that using the 

date of issuance of the FEMA 

determination instead of the date the 

‘‘appellant’’ views the FEMA 

determination does not provide clarity; 

suggesting that the ‘‘appellant’’ now has 

150 days to make a complete appeal 

with the new 30-day deadline to 

provide additional information; and 

questioning whether the NPRM 

removed the first 60-day requirement to 

make the entire deadline 120-days 

regardless of when each entity appeals 

so long as it is within 120 days. The 

third commenter, also a member of the 

public [FEMA–2019–0012–0004], 

suggested FEMA adjust the amount in 

dispute thresholds for hyper-inflation. 

This commenter also submitted a 

duplicative comment which was 

withdrawn [FEMA–2019–0012–0005]. 

The second anonymous commenter 

submitted an unrelated comment 

[FEMA–2019–0012–DRAFT–0006], 

which was not posted to the Docket. 

The fourth commenter, from a State 

Emergency Management Agency 

[FEMA–2019–0012–0006], also asked 

whether the NPRM’s combination of the 

applicant and recipient’s 60-day 

submission requirements could equate 

to additional submission time for 

appeals. The fifth commenter, from the 

same State Emergency Management 

Agency [FEMA–2019–0012–0007], 

asked numerous questions regarding 

applicant and recipient proposed appeal 

submission timeframes. The sixth 

commenter, a State Division of 

Emergency Management (DEM) [FEMA– 

2019–0012–0008], generally supports 

the effort to amend the regulations. 

However, the State DEM believes many 

of the changes proposed in the NPRM 

conflict with the Robert T. Stafford 

Disaster Relief and Emergency 

Assistance Act (Stafford Act) 3 and 

expressed concern with FEMA 

removing its own deadlines while 

strictly applying them to applicants and 

recipients. The State DEM included 

attachments of cases—or parts of 

cases—and a detailed table of their 

comments. 

A. Adjustment Amount in Dispute 

Thresholds 

Under Section 1219 of the DRRA, in 

order to request arbitration a PA 

applicant must dispute 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). 

One member of the public [FEMA– 

2019–0012–0004] commented that, for 

the most part, the proposed changes are 

well thought out and stand to reason. 

However, the commenter suggested that 

the amount in dispute threshold allow 

for future adjustment based upon hyperinflation. Including provisions for 

hyper-inflation, this commenter posited, 

will allow FEMA to carry out its crucial 

work without returning to the 

rulemaking process if the dollar 

fluctuates in the future. A lower 

threshold could subsequently 

overwhelm the arbitration or appeal 

process. 

Since the amount in dispute 

thresholds are statutorily set in Section 

1219 of DRRA, it is not within FEMA’s 

discretion to change them in this 

rulemaking. While FEMA appreciates 

the commenter’s support, FEMA did not 

make any changes to the regulatory text 

at 206.206 as a result of the comment. 

B. Population Thresholds 

The DRRA defines a rural area to 

mean an area with a population of less 

than 200,000 outside an urbanized area. 

The NPRM proposed to define the term 

‘‘urbanized area’’ to mean the area as 

identified by the United States Census 

Bureau (USCB). The USCB defines an 

‘‘urbanized area’’ as an area that consists 

of densely settled territory that contains 

50,000 or more people.4 For clarity and 

to comply with publication 

requirements found in 1 CFR chapter I, 

FEMA has revised the final rule’s 

definition of ‘‘urbanized area’’ as an area 

that consists of densely settled territory 

that contains 50,000 or more people. 

An anonymous commenter [FEMA– 

2019–0012–0002] supports the different 

population thresholds of the NPRM. The 

anonymous commenter suggested that 

the population requirements give all 

areas a fair chance of receiving Federal 

assistance. FEMA appreciates the 

anonymous commenter’s support but, 

did not make any changes to the 

regulatory text at 206.206 as a result of 

the comment. 

C. ‘‘Applicant/Subrecipient’’ Different 

Entities Versus ‘‘Applicant’’ for All 

Entities 

A member of the public [FEMA– 

2019–0012–0003] commented that 

FEMA views the applicant/subrecipient 

as two different entities: An ‘‘applicant’’ 

is one that has applied for but not yet 

received funding, while a 

‘‘subrecipient’’ has applied for and been 

awarded funding. This member of the 

public [FEMA–2019–0012–0003] also 

commented that the definition of 

’’applicant’’ does not include 

‘‘subrecipient’’ (although one could 

argue that all ‘‘subrecipients’’ are 

‘‘applicants,’’ but not all ‘‘applicants’’ 

are ‘‘subrecipients,’’ so the use of 

‘‘applicant’’ for all entities could still be 

correct). 

The ‘‘applicant,’’ as defined at 44 CFR 

206.201(a), is a State agency, local 

government, or eligible private 

nonprofit organization (PNP) submitting 

an application to the recipient for 

assistance under the recipient’s grant. 

The ‘‘recipient,’’ as defined at 44 CFR 

206.201(m), is the government to which 

a grant is awarded, and which is 

accountable for the use of the funds 

provided. The ‘‘recipient’’ is typically 

the State to which a grant is awarded. 

In the NPRM, FEMA proposed 

changing the phrase ‘‘applicant, 

subrecipient, or recipient’’ to ‘‘applicant 

or recipient’’ since the definition of 

‘‘applicant’’ at 44 CFR 206.201(a) 

already includes the term 

‘‘subrecipient.’’ Since an ‘‘applicant’’ 

submits an application to the 

‘‘recipient’’ for assistance under the 

recipient’s grant, the ‘‘recipient’’ and the 

‘‘applicant’’ are not interchangeable 


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5Post-Katrina Emergency Management Reform 

Act of 2006, 109–295, 120 Stat. 1394 (Oct. 4, 2006), 

6 U.S.C. 701 note. 

phrases. It follows that the definition of 

‘‘applicant’’ at 206.201(a) cannot 

include a ‘‘recipient,’’ so FEMA 

disagrees with the public commenter’s 

[FEMA–2019–0012–0003] statement 

that the use of ‘‘applicant’’ for all 

entities could still be correct. 

Therefore, FEMA did not make any 

changes to the regulatory text at 206.206 

as a result of the comment. 

D. ‘‘Appellant’’ Versus ‘‘Applicant’’ and 

‘‘Subrecipient’’ 

A member of the public [FEMA– 

2019–0012–0003] also commented that 

there is a difference in ‘‘applicant’’ and 

‘‘subrecipient’’ per 44 CFR 206.201(a). 

FEMA disagrees with the statement that 

there is a difference in ‘‘applicant’’ and 

‘‘subrecipient’’ per 206.201(a). As 

indicated above, the definition of 

‘‘applicant’’ at 206.201(a) includes 

‘‘subrecipient,’’ but not ‘‘recipient.’’ 

Therefore, FEMA did not make any 

changes to the regulatory text at 206.206 

as a result of the comment. 

The commenter further stated that the 

use of ‘‘appellant’’ allows for both 

‘‘applicants’’ and ‘‘subrecipients’’ to be 

represented in the terminology. In the 

past, FEMA used the term ‘‘appellant’’ 

instead of ‘‘applicant or recipient’’ for 

the requirement of specifying the 

provisions in Federal law, regulator, or 

policy in dispute. In the NPRM, FEMA’s 

reason for changing from ‘‘appellant’’ to 

‘‘applicant or recipient’’ was for 

consistency in terminology and no 

substantive change was intended. Since 

FEMA’s goal is consistency in 

terminology, FEMA will not add 

‘‘appellant’’ as a defined term to 

paragraph (a) of 44 CFR 206.206, as it 

could lead to confusion for the reader as 

to whether it refers to an ‘‘applicant’’ or 

a ‘‘recipient.’’ Therefore, FEMA did not 

make any changes to the regulatory text 

at 206.206 as a result of the comment. 

E. Other Definitions 

The State DEM [FEMA–2019–0012– 

0008] commented that in 44 CFR 

206.206(a), FEMA should define 

‘‘Regional Administrator’’ because 

applicants submit first appeals to the 

appropriate FEMA Regional office and 

then submit second appeals to the 

Assistant Administrator for the 

Recovery Directorate. The State DEM 

proposed to define ‘‘Regional 

Administrators’’ as ‘‘the Administrator 

of the Federal Emergency Management 

Agency Regional Office in which the 

Applicant resides.’’ 

FEMA decided against the 

commenter’s suggested definition of 

‘‘Regional Administrator’’ since 44 CFR 

206.2(a)(21) already provides a 

definition for ‘‘Regional Administrator’’ 

with general applicability throughout 

part 206. Regional Administrator: An 

administrator of a regional office of 

FEMA, or his/her designated 

representative. As used in these 

regulations, Regional Administrator also 

means the Disaster Recovery Manager 

who has been appointed to exercise the 

authority of the Regional Administrator 

for a particular emergency or major 

disaster. 

This second sentence in the definition 

of Regional Administrator at 

206.2(a)(21) is contrary to the structure 

proposed in the NPRM at 206.206, as it 

says that the Regional Administrator 

also means the Disaster Recovery 

Manager. In the NPRM, the Regional 

Administrator/Disaster Recovery 

Manager is not making the FEMA 

determination. Otherwise, the 

submission of the first appeal to the 

Regional Administrator for review 

would mean that the Regional 

Administrator could review their own 

determination. Therefore, FEMA 

decided to add only the first sentence of 

the ‘‘Regional Administrator’’ definition 

at 206.2(a)(21) to this final rule for 

consistency and clarity. So, FEMA 

added the following definition of 

‘‘Regional Administrator’’ to the 

regulatory text: Regional Administrator 

means an administrator of a regional 

office of FEMA, or his/her designated 

representative. 

Both, ‘‘Administrator’’ and ‘‘Regional 

Administrator’’ were added to Title V of 

the Homeland Security Act of 2002 by 

the Post-Katrina Emergency 

Management Reform Act of 2006.5

Therefore, it makes sense that they are 

defined terms under 44 CFR 206.206, as 

they are statutorily mandated FEMA 

positions. 

The State DEM also recommended 

that FEMA define the term ‘‘Assistant 

Administrator for the Recovery 

Directorate.’’ FEMA chose not to 

provide a definition of ‘‘Assistant 

Administrator for the Recovery 

Directorate’’ since future FEMA 

reorganizations may change that 

position title. Additionally, the 

‘‘Assistant Administrator for the 

Recovery Directorate’’ is not a FEMA 

statutorily mandated position. 

Finally, the State DEM [FEMA–2019– 

0012–0008] suggested that FEMA define 

‘‘final agency determination’’ to mean 

the decision of FEMA as provided 

through electronic transmission of a 

formal determination if the applicant or 

recipient does not submit a first appeal 

within the time limits. FEMA does not 

adopt the commenter’s definition 

because the definition in the NPRM the 

is a more fulsome definition which 

covers all eventualities. In the NPRM, 

‘‘final agency determination’’ means the 

decision of FEMA, if the applicant or 

recipient does not submit a first appeal 

within the time limits provided for in 

paragraph (b)(1)(ii)(A) of proposed 

§ 206.206; or the decision of FEMA, if 

the applicant or recipient withdraws the 

pending appeal and does not file a 

request for arbitration within 30 

calendar days of the withdrawal of the 

pending appeal; or the decision of the 

FEMA Regional Administrator, if the 

applicant or recipient does not submit a 

second appeal within the time limits 

provided for in paragraph (b)(2)(ii)(A) of 

proposed § 206.206. For this reason, 

FEMA declines to adopt the 

commenter’s definition. Therefore, 

FEMA only added the definition of 

‘‘Regional Administrator’’ to the 

regulatory text at 206.206(a) as a result 

of the comment. 

F. First and Second Appeals’ Deadlines 

Proposed paragraph 206.206(b)(1)(ii) 

of the NPRM addressed time limits for 

first appeals. Under proposed paragraph 

(b)(1)(ii)(A), the applicant may make a 

first appeal through the recipient within 

60 calendar days from the date of the 

FEMA determination that is the subject 

of the appeal. Moreover, the recipient 

must electronically forward to the 

Regional Administrator the applicant’s 

first appeal with a recommendation 

within 120 calendar days from the date 

of the FEMA determination that is the 

subject of the appeal. There is no 

recourse for the applicant if the 

recipient misses the deadline to forward 

the appeal and recommendation to the 

Regional Administrator. There is also no 

recourse for the applicant in a second 

appeal where the recipient does not 

make the deadline. 

Several commenters—including a 

member of the public [FEMA–2019– 

0012–0003], a State agency [FEMA– 

2019–0012–0007], and State DEM 

[FEMA–2019–0012–0008]—sought 

clarification on when, exactly, the 

applicant’s initial 60-day deadline is 

triggered. For instance, is the deadline 

triggered on the day the applicant views 

the determination [FEMA–2019–0012– 

0003]? Does the deadline begin once the 

applicant has physically received the 

determination paperwork [FEMA–2019– 

0012–0008]? As FEMA was aware of 

this issue, the NPRM provided clarity by 

adding an electronic submission 

requirement for both first and second 

appeals. This requirement will enable 

FEMA to accurately track the transmittal 

and receipt of appeals since they will be 


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6Public Assistance Program and Policy Guide 

Version 4 (fema.gov). 

the same date, while providing the 

applicant with a clear timeline for 

compliance. Specifically the deadline is 

triggered by FEMA’s transmittal of the 

determination, not the date the 

applicant views the determination. 

Nonetheless, a member of the public 

[FEMA–2019–0012–0003] questioned 

whether the NPRM’s 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 [FEMA–2019–0012– 

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 FEMA’s 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 determination’s 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 FEMA’s 

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 

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 206.206(b)(1)(ii) and (b)(2)(ii) as a 

result of the comments. 

G. First and Second Appeals’ 

Deadlines—60/60-Day Versus 120-Day 

A member of the public [FEMA– 

2019–0012–0003] 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 applicant’s 60-day deadline 

remains, as the Stafford Act requires it 

for appeals. See 423(a) of the Stafford 

Act. In order to resolve the confusion 

identified by the public commenter 

[FEMA–2019–0012–0003], 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 

206.206(b)(1)(ii)(A) and (b)(2)(ii)(A) 

with the following: ‘‘[i]f the applicant or 

the recipient do not meet their 

respective 60-calendar day and 120- 

calendar 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 ‘‘[i]f 

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 [FEMA–2019– 

0012–0006] 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, 

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 [FEMA–2019–0012–0007] 

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 120- 

calendar day deadlines, FEMA will 

deny the appeal. 

Finally, the State DEM [FEMA–2019– 

0012–0008] suggested that the 

regulatory language was misleading 

because it implies that FEMA will deny 

all first appeals it does not receive by 

the recipient’s 120-day deadline and is 

not clear that applicant’s untimeliness 

will jeopardize the appeal. As the 

scenarios above make clear, both an 

applicant and recipient’s untimeliness 

will continue to jeopardize either a first 

or second appeal based upon their 

respective 60-calendar day and 120- 

calendar day deadlines. For these 

reasons, FEMA made changes to the 

regulatory text regarding first appeals at 

206.206(b)(1)(ii)(A) and regarding 

second appeals at (b)(2)(ii)(A) as a result 

of the comments. 

H. Denial Based Upon Timeliness 

The State DEM [FEMA–2019–0012– 

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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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 

recipient’s 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 

DEM’s 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 60- 

day period, the date of FEMA’s 

determination, and the date of the 

applicant and recipient’s receipt thereof 

should be identical with the 

implementation of electronic 

transmission. Since electronic 

transmission addresses the State DEM’s 

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 206.206(b)(1)(ii)(A) and 

(b)(2)(ii)(A) 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 [FEMA–2019–0012– 

0008] also suggested that the regulatory 

language in 206.206(b)(3)(iii)(B)(2) 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 

to alter or ignore this deadline. 

Consequently, FEMA did not make any 

changes to the regulatory text at 

206.206(b)(3)(iii)(B)(2) as a result of 

these comments. 

However, FEMA provided clarifying 

edits to 206.206(b)(3)(iii)(B)(2) in the 

final rule, so that an applicant 

understands that if they choose 

arbitration pursuant to Section 423(d) of 

the Stafford Act, as FEMA has not 

responded to an applicant’s 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 206.206(b)(3)(iii)(B)(2) 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 

206.206(b)(3)(iii)(B)(2) 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 206.206(b)(3)(iii)(B)(2) by replacing 

‘‘may’’ with ‘‘must’’ and by adding the 

phrase ‘‘to the recipient, the CBCA, and 

FEMA’’ after arbitration. So, 

206.206(b)(3)(iii)(B)(2) 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 206.206(b)(3)(iii)(B)(2), 

then the applicant’s request for 

arbitration will be denied for timeliness. 

I. Simultaneously Provide Decisions to 

Applicants & Recipients 

The State DEM [FEMA–2019–0012– 

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 

proposed in the NPRM’s 

206.206(b)(1)(iii); 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 [FEMA–2019–0012– 

0008] commented that in both 

paragraphs 206.206(b)(1)(ii)(C) and 

(b)(2)(ii)(C) 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 423(b) 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 rule’s 

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 423(d) of the Stafford Act, if 

the agency fails to respond to an 

applicant’s 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 206.206(b)(1)(ii)(C) and 

(b)(2)(ii)(C) as a result of the comments. 

K. 90-Day Deadline for Technical 

Information 

Proposed paragraphs 206.206(b)(1)(iii) 

and (b)(2)(iii) 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 

[FEMA–2019–0012–0008] commented 

that FEMA does not have the authority 


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7The Assistant Administrator for the Recovery 

Directorate will direct the Regional Administrator 

to take appropriate implementing action(s) 

regarding successful second appeals. 

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 

FEMA’s 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 

public’s 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 423(d) of the Stafford Act, if 

FEMA fails to respond to an applicant’s 

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 206.206(b)(1)(iii) and 

(b)(2)(iii) as a result of the comments. 

L. 30 Days To Provide Additional 

Information 

In the NPRM, under paragraphs 

206.206(b)(1)(ii)(B) and (b)(2)(ii)(B), 

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– 

2019–0012–0003] 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 public’s 

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 [FEMA–2019– 

0012–0003] is correct that the new 30- 

day 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 

at 206.206(b)(1)(ii)(B) and (b)(2)(ii)(B) as 

a result of the comment. 

M. Untimeliness and Imposition of 

Penalties Upon FEMA 

The State DEM [FEMA–2019–0012– 

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 90- 

day 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 DEM’s 

[FEMA–2019–0012–0008] suggestion 

that untimeliness on FEMA’s 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 [FEMA–2019–0012– 

0008] commented that 206.206(b)(1)(v) 

and (b)(2)(v) 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 

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 FEMA’s ability to meet timelines 

for other actions. Therefore, FEMA did 

not make any changes to the regulatory 

text at 206.206(b)(1)(v) and (b)(2)(v) as a 

result of the comment. 

O. Content of Arbitration Request 

A State DEM [FEMA–2019–0012– 

0008] commented on 

206.206(b)(3)(iii)(C), 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 applicant’s 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 

206.206(b)(3)(iii)(C) as a result of the 

comment. 

P. Emergency Versus Major Disaster 

Declaration Determinations 

As mentioned before, the State DEM 

[FEMA–2019–0012–0008] 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 


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reviewed how the NPRM discussed 

emergency versus major disaster 

determinations. 

In the NPRM, FEMA limited 

arbitrations to major disaster declaration 

determinations at proposed 

206.206(b)(3)(i)(A) since the right of 

arbitration is housed in paragraph (d) of 

Section 423 of the Stafford Act. Section 

423 is under Title IV of the Stafford Act, 

which is entitled ‘‘Major Disaster 

Assistance Programs.’’ Also, 

subparagraph (d)(5)(A) of 423 of the 

Stafford Act states that the applicant 

shall submit to the arbitration process 

established under the authority granted 

under Section 601 of Public Law 111– 

5. FEMA’s corresponding regulations 

under 206.209 are entitled ‘‘Arbitration 

for Public Assistance determinations 

related to Hurricanes Katrina and Rita 

(Major disaster declarations DR–1603, 

DR–1604, DR–1605, DR–1606, and DR– 

1607).’’ Therefore, FEMA limited 

arbitration in the NPRM to major 

disaster declarations. 

Yet, there was no corresponding 

limitation in the appeals section of the 

NPRM because applicants may appeal 

emergency declaration decisions. As a 

result of the deliberation surrounding a 

response to this comment, FEMA did 

discover that the NPRM imprecisely 

stated in the Executive Orders 12866 

and 13563 section that ‘‘[t]his proposed 

rule does not apply to emergency 

disaster declarations.’’ Rather, it should 

have stated that ‘‘[t]he Regulatory 

Evaluation does not include a 

discussion of emergency disaster 

declarations; since, arbitration is only 

available to dispute the determinations 

of major disaster declarations.’’ There 

was no need to analyze the cost for 

applicants to appeal determinations of 

emergency disaster declarations in the 

NPRM, since FEMA currently allows for 

such and the NPRM did not limit 

appeals to major disaster declaration 

determinations. FEMA did not make 

any changes to the regulatory text at 

206.206 as a result of this comment but 

it did update the Regulatory Evaluation 

as noted above. 

III. Summary of Other Changes 

The NPRM at 44 CFR 206.206(a) 

proposed to define the term ‘‘urbanized 

area’’ to mean the area as identified by 

the United States Census Bureau 

(USCB). The USCB defines an 

‘‘urbanized area’’ as an area that consists 

of densely settled territory that contains 

50,000 or more people. For clarity and 

to comply with publication 

requirements found in 1 CFR chapter I, 

FEMA has revised the final rule’s 

definition of ‘‘urbanized area’’ as an area 

that consists of densely settled territory 

that contains 50,000 or more people. 

FEMA realized that the NPRM at 

206.206 was silent regarding the 

recipient-related first and second appeal 

time limits. Section 423(a) of the 

Stafford Act allows appeals within 60 

days. Therefore, in the first appeal time 

limits portion of the final rule FEMA 

aligned with this requirement by adding 

the following sentence at the end of 

206.206(b)(1)(ii)(A): A recipient may 

make a recipient-related first appeal 

within 60 calendar days from the date 

of the FEMA determination that is the 

subject of the appeal and must 

electronically submit their first appeal 

to the Regional Administrator. FEMA 

also had to make a corresponding 

addition to the second appeal time 

limits portion of the final rule by adding 

the following sentence to the end of 

206.206(b)(2)(ii)(A): If the Regional 

Administrator denies a recipient-related 

first appeal in whole or in part, the 

recipient may make a recipient-related 

second appeal within 60 calendar days 

from the date of the Regional 

Administrator’s first appeal decision 

and the recipient must electronically 

submit their second appeal to the 

Assistant Administrator for the 

Recovery Directorate. 

FEMA realized that the NPRM at 

206.206(b)(3)(i)(A) does not follow the 

language of Section 423(d)(1) of the 

Stafford Act, which says that an 

applicant for assistance may request 

arbitration to dispute the eligibility for 

assistance or repayment of assistance. 

Rather, the NPRM at 206.206(b)(3)(i)(A) 

states that an applicant may request 

arbitration if there is a disputed agency 

determination. Therefore, in the final 

rule FEMA is removing the phrase 

‘‘disputed agency determination’’ from 

paragraph 206.206(b)(3)(i)(A) and 

adding ‘‘dispute of the eligibility for 

assistance or of the repayment of 

assistance’’ in its place. 

FEMA also realized that the NPRM at 

206.206(b) does not follow the language 

of Section 423 of the Stafford Act, 

which says that an applicant for 

assistance may request arbitration to 

dispute the eligibility for assistance or 

repayment of assistance. Rather, the 

NPRM at 206.206(b) says that an eligible 

applicant or recipient may appeal or an 

eligible applicant may arbitrate any 

determination previously made related 

to an application for or the provision of 

PA according to the procedures of this 

section. Because the regulatory text does 

not follow the statutory language, FEMA 

is removing the phrase ‘‘or an eligible 

applicant may arbitrate’’ from 

206.206(b) and FEMA is adding a 

second sentence to 206.206(b) that says: 

‘‘An eligible applicant may request 

arbitration to dispute the eligibility for 

assistance or repayment of assistance.’’ 

FEMA is making these technical 

changes because FEMA does not have 

the discretion to deviate from statutorily 

imposed restrictions. Section 423(a) of 

the Stafford Act allows an applicant to 

appeal any decision regarding eligibility 

for, from, or amount of assistance. 

Whereas, Section 423(d)(1) of the 

Stafford Act allows an applicant to 

arbitrate the eligibility for assistance or 

repayment of assistance. Since Congress 

did not use the same language, there is 

a difference between what an applicant 

can arbitrate and what an applicant can 

appeal, which FEMA must delineate in 

its regulations at 44 CFR 206.206. Since 

these requirements are statutorily 

imposed and FEMA has no discretion 

FEMA may make these edits as 

technical changes in the final rule. 

Additional technical changes to the 

final rule are at 44 CFR 

206.206(b)(1)(iv)(B)(1) and 

(b)(2)(iv)(B)(1) as the Office of 

Management and Budget (OMB) revised 

the cross references from 2 CFR 200.338 

to 2 CFR 200.339; as, OMB revised 

sections of their Guidance for Grants 

and Agreements. (See 85 FR 49506, Aug. 

13, 2020.) 

The final rule also includes 

corrections of typographical errors and 

other non-substantive stylistic changes 

from the NPRM. FEMA made a 

typographical error under the Executive 

Orders 12866 and 13563 section 

Impartiality heading. In the NPRM, the 

Executive Orders 12866 and 13563 

section stated that CBCA found in favor 

of the applicant fully or partially in less 

than 20 percent of the time. The ‘‘20 

percent’’ was a typographical error. It 

should have read ‘‘55 percent’’ to align 

with the correct data, which was listed 

on Table 13 of the NPRM. In this final 

rule, the data for the Executive Orders 

12866 and 13563 section has been 

updated with the most recent 10-years 

of available data at the time of the 

analysis. Therefore, FEMA has replaced 

‘‘less than 20’’ with ‘‘about 13’’ in the 

final rule to make sure that the narrative 

of the percentage that the CBCA found 

in favor of the applicant fully or 

partially aligns with Table 13. 

The final rule also includes other nonsubstantive changes from the NPRM. 

For instance, FEMA added a footnote to 

the Executive Orders 12866 and 13563 

section under the Cost to Government/ 

FEMA heading that ‘‘FEMA estimates 

that we could need up to four expert 

witnesses. FEMA’s expert witnesses 

may or may not speak at the hearing. 

Additionally, FEMA may hire an expert 

witness so that FEMA can consult with 


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8Tribes may choose to apply for PA 

independently as a recipient (tribal declaration) or 

may submit through their State as a subrecipient. 

9On 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 (3–27–19). 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. (2–20). Accessed June 8, 2021. 

10 48 CFR part 6101, Rules of Procedure of the 

Civilian Board of Contract Appeals, also covers PA 

arbitrations. 

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 ‘‘[i]n 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 206.206(a). 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 § 206.201(a) and Recipient has the 

same meaning as the definition at 

§ 206.201(m). 

The final non-substantive stylistic and 

grammar changes from the NPRM were 

made to 206.206(c) 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 206.206(c)(1) by 

revising ‘‘constitute’’ to ‘‘constitutes.’’ 

Since, FEMA split paragraph 206.206(c) 

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. 

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 

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 3(f) 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 RA’s 

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 

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 Administrator’s 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 FEMA’s 

determination in the case of an 

applicant not receiving the first appeal 

decision within 180 days or to defend 

FEMA’s first appeal decision. 

The final rule will codify regulations 

for the arbitration process as directed by 

42 U.S.C. 5189a(d)(5). 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. 5189a(d) 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 60- 

calendar day deadline for submitting 


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requests for arbitration 

(§ 206.206(b)(3)(iii)(B)) so that 

submission time limits for second 

appeals and arbitrations are the same. 

FEMA believes that there should be 

consistency between the time to request 

arbitration and the time to submit 

second appeals for administrative ease 

and to reduce potential confusion 

amongst applicants. 

Affected Population 

The final rule will affect disputes 

from PA applicants arising from major 

disaster declarations. Specifically, 

applicants that (1) submitted a first 

appeal and received a negative decision, 

or, (2) have a first appeal pending for 

more than 180 days and wish to 

withdraw the appeal in favor of 

arbitration. Applicants may only request 

arbitration for disputes in excess of 

$500,000, or $100,000 in rural areas, 

and for disputes that arise from major 

disasters declared on or after January 1, 

2016. 

Summary of Regulatory Changes 

FEMA is revising its PA appeals 

regulation at 44 CFR 206.206 to add in 

the new right to arbitration under 

DRRA, in conjunction with some 

revisions to the appeals process. DRRA 

added arbitration as a permanent 

alternative to a second appeal under the 

PA Program, or for applicants that have 

had a first appeal pending with FEMA 

for more than 180 calendar days that 

may withdraw such appeal and submit 

a request for arbitration, provided the 

dispute is in excess of $500,000, or 

$100,000 in rural areas, and for disputes 

that arise from major disasters declared 

on or after January 1, 2016. The other 

major revisions to 44 CFR 206.206 

include adding definitions; adding 

subparagraphs to clarify what actions 

FEMA may take and will not take while 

an appeal is pending and state that 

FEMA may issue separate guidance as 

necessary, similar to current 44 CFR 

206.209(m); adding a finality of decision 

paragraph; requiring electronic 

submission for appeals and arbitrations 

documents; and clarifying overall time 

limits for first and second appeals. 

In the final rule, a non-substantive 

stylistic change from the NPRM was 

made to the definition of ‘‘applicant’’ 

and ‘‘recipient’’ in § 206.206(a). 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 § 206.201(a) and Recipient has the 

same meaning as the definition at 

§ 206.201(m). 

In this final rule, FEMA is adding a 

definition of Regional Administrator 

and making changes to the regulatory 

text regarding first appeals and second 

appeals at § 206.206(b)(1)(ii)(A) and 

(b)(2)(ii)(A) as a result of the 60-day 

appeals deadline comments. 

Additionally, in this final rule, FEMA 

is making technical revisions at 

§§ 206.206(b) and 206.206(b)(3)(i)(A) to 

align the regulatory text with the 

dispute of the eligibility for assistance 

or repayment of assistance language of 

Section 423(d)(1) of the Stafford Act. 

FEMA realized that the NPRM at 

§ 206.206 was silent regarding the 

recipient-related first and second appeal 

time limits. Section 423(a) of the 

Stafford Act allows appeals within 60 

days. Therefore, in the first appeal time 

limits portion of the final rule FEMA 

aligned with this requirement by adding 

the following sentence at the end of 

§ 206.206(b)(1)(ii)(A): A recipient may 

make a recipient-related first appeal 

within 60 calendar days from the date 

of the FEMA determination that is the 

subject of the appeal and must 

electronically submit their first appeal 

to the Regional Administrator. FEMA 

also had to make a corresponding 

addition to the second appeal time 

limits portion of the final rule by adding 

the following sentence to the end of 

§ 206.206(b)(2)(ii)(A): If the Regional 

Administrator denies a recipient-related 

first appeal in whole or in part, the 

recipient may make a recipient-related 

second appeal within 60 calendar days 

from the date of the Regional 

Administrator’s first appeal decision 

and the recipient must electronically 

submit their second appeal to the 

Assistant Administrator for the 

Recovery Directorate. This regulatory 

change is not expected to have a 

significant economic impact. 

FEMA provided clarifying edits to 

§ 206.206(b)(3)(iii)(B)(2) in the final 

rule, so that an applicant understands 

that if they choose arbitration pursuant 

to Section 423(d) of the Stafford Act, as 

FEMA has not responded to an 

applicant’s 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. Plus, FEMA provided clarifying 

edits to § 206.206(b)(3)(iii)(B)(2) 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. 

For clarity and to comply with 

publication requirements found in 1 

CFR chapter I, FEMA has revised the 

final rule’s definition of ‘‘urbanized 

area’’ as an area that consists of densely 

settled territory that contains 50,000 or 

more people. 

Additional technical changes to the 

final rule are at 44 CFR 

206.206(b)(1)(iv)(B)(1) and 

(b)(2)(iv)(B)(1) as the Office of 

Management and Budget (OMB) revised 

the cross references from 2 CFR 200.338 

to 2 CFR 200.339; as, OMB revised 

sections of their Guidance for Grants 

and Agreements. (See 85 FR 49506, Aug. 

13, 2020.) 

So in the final rule, FEMA has split 

the first sentence of 

§ 206.206(b)(3)(iii)(B)(2) 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. This regulatory change 

will not have an economic impact. 

FEMA also added clarifying language 

to the last sentence of 

§ 206.206(b)(3)(iii)(B)(2) by replacing 

‘‘may’’ with ‘‘must’’ and by adding the 

phrase ‘‘to the recipient, the CBCA, and 

FEMA’’ after arbitration. So, 

§ 206.206(b)(3)(iii)(B)(2) 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 

§ 206.206(b)(3)(iii)(B)(2), then the 

applicant’s request for arbitration will 

be denied for timeliness. This regulatory 

change will not have an economic 

impact. 

The final non-substantive stylistic and 

grammar changes from the NPRM were 

made to § 206.206(c) in the final rule. 

First, FEMA split the paragraph into two 

subparagraphs based on whether it dealt 

with the finality of a FEMA decision or 

a CBCA decision. Then, FEMA 

corrected a grammar error in the first 

sentence of § 206.206(c)(1) by revising 

‘‘constitute’’ to ‘‘constitutes.’’ Since, 

FEMA split paragraph 206.206(c) from 

the NPRM into two subparagraphs in 

the final rule, FEMA had to include that 

final decisions are not subject to further 


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11Historical Consumer Price Index for All Urban 

Consumers (CPI–U): U.S. city average, all items, by 

month. Bureau of Labor Statistics: Consumer Price 

Index 2019. Accessed October 23, 2020. https://

www.bls.gov/cpi/tables/supplemental-files/archive2019.zip. 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. 

12The NPRM incorrectly stated in the Executive 

Orders 12866 and 13563 section that ‘‘[t]his 

proposed rule does not apply to emergency disaster 

declarations.’’ The NPRM should have stated that 

here was no need to the cost for applicants to 

appeal determinations of emergency disaster 

declarations because FEMA currently allows for 

such and the NPRM did not limit appeals to major 

disaster declaration determinations. 

13The number of arbitration requests was 

provided by FEMA’s Office of Chief Counsel 

Disaster Disputes Branch as of November 9, 2020. 

14The proposed rule stated that ‘‘The authority to 

arbitrate in lieu of a filing a first appeal for 

Hurricanes Katrina and Rita became available in 

February 2009 and 2017 is the latest calendar year 

where complete data was available at the time of 

this analysis.’’ Review under the Executive Orders 

12866 and 13563 section in the proposed rule was 

conducted with data available at the time. FEMA 

typically uses 10 years of historical data for their 

analysis. However, 10 years of historical data was 

not available at the time of the analysis of the 

proposed rule. For this final rule, FEMA was able 

to use 10 years of historical data, 2010 through 

2019. Hurricane Katrina and Rita occurred in 2005. 

FEMA notes that as time passes, fewer applicants 

are submitting requests for public assistance each 

year, as over 15 years has passed since the Katrina/ 

Rita declarations. 

15Please note that arbitration cases for Hurricanes 

Katrina and Rita are not bound by a threshold for 

rural areas as is this rule. FEMA does not know if 

this limitation will result in more or less cases 

submitted. 

16 Data on appeals and arbitrations is provided by 

FEMA’s Office of Chief Counsel Disaster Disputes 

Branch. Not all these first appeals would have been 

eligible for arbitration. To be eligible for arbitration, 

the amount in dispute would have had to have been 

greater than $500,000. FEMA does not have amount 

in dispute data available for these cases, so the 

arbitration percentage may be overstated. 

administrative review in both 

subparagraphs, as it applies to the 

finality of both FEMA and CBCA 

decisions. 

Assumptions 

This analysis used the following 

assumptions: 

• All monetary values are presented 

in 2019 dollars. FEMA used the Bureau 

of Labor Statistics (BLS) Consumer Price 

Index for All Urban Consumers (CPI–U): 

U.S. city average, all items, by month, 

Annual Average as published December 

2019.11

• This analysis does not include a 

discussion of emergency disaster 

declarations; since, arbitration is only 

available to dispute the determinations 

of major disaster declarations.12

• FEMA assumed the length of time 

for an arbitration case is based on the 

hearing location. 

• FEMA used 2019 wage rates for all 

parties involved in arbitration cases. 

Baseline 

Following guidance in OMB Circular 

A–4, FEMA assessed the impacts of this 

final rule against a pre-statutory 

baseline. The pre-statutory baseline is 

an assessment of what the world would 

look like if the relevant statute(s) had 

not been adopted. In this instance, 

FEMA has been accepting arbitration 

cases since the implementation of 

DRRA, and retroactive to January 1, 

2016. Since the statute has already been 

implemented and because this rule is 

not making additional substantive 

changes, the rule has no cost or benefits 

related to the new right of arbitration 

under a no-action baseline. The costs, 

benefits, and transfers of this rule are 

measured against the pre-statutory 

baseline. The benefit of this rule is 

making information publicly available 

in the CFR for transparency and to 

prevent any confusion on the most upto-date arbitration process. 

Currently, FEMA has no permanent 

regulations for arbitrations outside of 

Hurricanes Katrina and Rita. Since the 

passage of the DRRA, certain PA 

applicants under declarations since 

January 1, 2016 may request arbitration 

pursuant to 42 U.S.C. 5189a(d). On June 

21, 2019, CBCA published a final rule 

(see 84 FR 29085) and FEMA has 

published a corresponding fact sheet. 

Between January 1, 2016 and November 

9, 2020, FEMA received 20 requests for 

arbitration.13 Three of these cases are 

still in progress, so FEMA does not have 

available data on the outcome of these 

cases. Of the 17 closed cases, FEMA 

prevailed in 10 cases, the applicant 

prevailed in 4 cases, and the applicant 

withdrew from the arbitration process 

prior to a decision in 3 cases. These 

figures will change as FEMA continues 

to receive arbitration requests. 

While arbitration is available for 

disaster declarations retroactive to 

January 1, 2016, the process did not 

become available to applicants until 

FEMA published guidance in December 

2018, and FEMA did not begin receiving 

arbitration requests until March 7, 2019. 

This means that FEMA only has 19 

months of historical data, and therefore, 

FEMA relied on older arbitration 

regulations as a proxy for the expected 

number of arbitration cases arising out 

of this final rule. 

FEMA previously had regulations 

permitting arbitrations arising from 

disaster declarations for Superstorm 

Sandy. No applicants requested 

arbitration pursuant to these 

regulations. The authority for these 

arbitrations has sunset and FEMA has 

since removed the regulations. FEMA 

has regulations, at 44 CFR 206.209, 

permitting arbitrations arising from 

disaster declarations for Hurricanes 

Katrina and Rita. This regulation is only 

available for PA applicants under 

Hurricane Katrina and Rita disaster 

declarations. The number of arbitrations 

submitted under this authority and the 

process relied on to conduct these 

arbitrations provide insight to project 

the number of arbitration cases in this 

final rule. While the Katrina/Rita 

arbitration regulations have some key 

differences from this final regulation, 

such as time frames and allowing 

applicants to request arbitration in lieu 

of first appeals, it is the best historical 

data that FEMA has available to 

estimate the number of expected 

arbitration cases for this final rule. 

FEMA recognized that the regulations 

at 44 CFR 206.209 have a 30-day time 

limit for submitting arbitration requests; 

whereas, this final rule has a 60 

calendar-day time limit for arbitrations. 

FEMA was not able to estimate the 

impact these additional 30 days may 

have on the number of arbitrations 

submitted. 

Number of Potential Arbitration Cases 

In addition to reviewing the limited 

historical data available on the 20 

arbitration cases, FEMA also examined 

the number of arbitrations submitted 

from the Hurricane Katrina and Rita 

disasters pursuant to 44 CFR 206.209, in 

lieu of filing a first appeal, from 2010 

through 2019 to derive an estimate of 

the number of arbitration cases that 

applicants might submit per year 

pursuant to 42 U.S.C. 5189a(d). 

Pursuant to 42 U.S.C. 5189(d)(5)(A), 

arbitrations authorized by the DRRA 

must follow the process established in 

44 CFR 206.209 for Katrina and Rita 

arbitrations, so FEMA relied on the 

annual average percentage of cases 

submitted under this regulation as a 

basis for estimating the number of cases 

that would arise for this final rule. This 

analysis was conducted using data from 

2010 through 2019.14 Applicants could 

arbitrate in lieu of a first appeal only if 

the amount of the project was greater 

than $500,000.15 During this period, 

applicants submitted a total of 73 

arbitrations and a total 225 first 

appeals.16 From this available data, 

applicants chose arbitration in lieu of a 

first appeal 32 percent of the time ((73 

÷ 225) × 100 = approximately 32 

percent). 

Pursuant to 42 U.S.C. 5189(d)(5)(B), 

arbitration is authorized by the DRRA in 

lieu of a second appeal where the 

dispute is more $500,000, or $100,000 

for rural areas. For second appeals 


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17 During the period of 2010–2019, 874 second 

level appeals were submitted. FEMA has amount in 

dispute data for 751 cases. FEMA does not have the 

amount in dispute data on the 123 cases because 

FEMA did not maintain electronic records for 

appeals prior to 2015. Prior to 2015, this data was 

manually entered into a database with many fields 

left blank. 

18Out of 751 cases, 258 had an amount in dispute 

greater than $500,000 and would be eligible 

regardless of the urban/rural classification. 288 

cases were for amounts between $100,000 and 

$500,000, of which 95 were classified as rural. 353 

(= 258 + 95) cases out of 751, or 47 percent would 

have met the eligibility requirements for arbitration 

in lieu of a second appeal. 

19Calculation: (3 cases where a first appeal lasted 

more than 180 days ÷ 20 arbitration cases) × 100 

= 15 percent. 

estimates, FEMA looked at all PA 

appeals from 2010 through 2019, rather 

than just the appeals resulting from 

Hurricanes Katrina and Rita since a 

second appeal was available to all 

applicants. FEMA found that there were 

874 second appeals submitted.17 Of that 

total, FEMA had data on the amount in 

dispute for 751 appeals. FEMA applied 

the urban/rural and minimum project 

amount requirements to these appeals 

and found that 353 or 47 percent would 

have been eligible for arbitration under 

this final rule ((353 ÷ 751) × 100 = 

approximately 47 percent).18

FEMA used the number of second 

appeals by year, then applied the 

percent eligible for arbitration under the 

final rule of 47 percent, then applied the 

percent choosing arbitration in lieu of a 

first appeal of 32 percent to calculate 

the expected number of arbitration cases 

from 2010 to 2019 as shown in Table 1. 

TABLE 1—TOTAL AND ANNUAL AVERAGE ESTIMATED ARBITRATION CASES PER YEAR

CY Number of second 

appeals 

Percent eligible 

under final rule 

(%) 

Percent choosing 

arbitration 

(%) 

Expected number 

of arbitration 

cases 

2010 ......................................................................................... 93 47 32 14 

2011 ......................................................................................... 107 47 32 16 

2012 ......................................................................................... 92 47 32 14 

2013 ......................................................................................... 102 47 32 15 

2014 ......................................................................................... 82 47 32 12 

2015 ......................................................................................... 43 47 32 6 

2016 ......................................................................................... 83 47 32 12 

2017 ......................................................................................... 76 47 32 11 

2018 ......................................................................................... 110 47 32 17 

2019 ......................................................................................... 86 47 32 13 

Total .................................................................................. 874 .............................. .............................. 130 

Average ..................................................................... 87 .............................. .............................. 13 

Based on historical data from 2010 

through 2019 and case data from 44 CFR 

206.209, FEMA estimates that there 

would be an average of 13 arbitration 

cases in lieu of a second appeal per year 

under the final rule. 

Arbitration has been available under 

42 U.S.C. 5189a(d)(5) since January 1, 

2016. So far, 20 cases were submitted, 

with three submitted for a first appeal 

lasting more than 180 days. Based on 

this limited data, FEMA estimates that 

15 percent of arbitration cases would 

result from a withdrawal of a first 

appeal.19 Applying the 15 percent 

arbitration rate to the annual average 

number of expected arbitration cases 

would result in two additional 

arbitration case per year (15 percent × 

13 cases = 1.95, rounded to two cases). 

Therefore, FEMA estimates an average 

of 15 arbitration cases per year (13 + 2 

= 15 arbitrations per year). 

In this final rule, FEMA is removing 

the phrase ‘‘or an eligible applicant may 

arbitrate’’ from ‘‘206.206(b) and FEMA 

added a second sentence to 206.206(b) 

that says: ‘‘[a]n eligible applicant may 

request arbitration to dispute the 

eligibility for assistance or repayment of 

assistance’’ so that it follows the 

Stafford Act. This change in this final 

rule will not impact the number of 

arbitration cases per year since 

applicants can still request to arbitrate 

the case. However, the results of the 

arbitration may be impacted by the 

change in language. FEMA further 

discusses this point in our transfers and 

uncertainty analysis sections. 

Costs 

Based on experience from the 

arbitrations conducted for Hurricanes 

Katrina and Rita, costs from this final 

rule would arise mainly from travel 

expenses; opportunity costs of time for 

the applicant and applicant’s 

representatives, recipient’s 

representatives, and FEMA’s 

representatives; and contract costs for 

applicants and FEMA to retain legal 

counsel and experts. Cost estimates are 

based on the expected number of 

arbitration cases per year. Since FEMA 

does not reimburse for applicant 

arbitration expenses, FEMA does not 

have data on the expenses incurred by 

applicants who have arbitrated from 

Hurricanes Katrina and Rita to serve as 

a proxy for this final rule. Other 

provisions of the final rule, such as 

timeframe requirements, electronic 

filing requirements, technical advice 

and clarifications would not have 

associated costs. FEMA does not expect 

the electronic filing requirement to have 

associated costs since nearly all 

applicants have access to internet and 

email, and most submit arbitration 

requests through their attorneys. The 

final timeframe requirements would 

align the submission deadlines for 

arbitration and appeals and would not 

place additional burdens on the 

applicants. FEMA currently provides 

technical advice as needed, so this 

would not be a new practice under this 

final rule. 

The arbitration process is highly 

customizable for the applicant. The 

applicant may choose to use an 

attorney, or several attorneys to 

represent them during the arbitration 

process. The applicant may also choose 

not to hire legal representation at all. 

Additionally, the applicant may use any 

number of expert witnesses or none. 

Because of the variability in the way 

arbitrations are conducted, FEMA is 

presenting what it considers a typical 

case upon which to base its cost 

estimates. This ‘‘typical case’’ is based 

on recent experience with the 20 

arbitration cases already filed. 

Generally, the applicant will use one or 

two attorneys and at least one expert 

witness. However, the arbitration 


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Federal Register / Vol. 86, No. 155 / Monday, August 16, 2021 / Rules and Regulations 45671 

20Based on information provided by FEMA Office 

of Chief Counsel Disaster Disputes Branch. 

21Based on information provided by FEMA Office 

of Chief Counsel Disaster Disputes Branch. 

22U.S. Bureau of Labor Statistics. National 

Occupational Employment and Wage Estimates 

United States. May 2019. Accessed August 18, 

2020. https://www.bls.gov/oes/2019/may/oes_

nat.htm. 

23Bureau of Labor Statistics, Employer Costs for 

Employee Compensation, Table 1. ‘‘Employer costs 

per hour worked for employee compensation and 

costs as a percent of total compensation: Civilian 

workers, by major occupational and industry group, 

March 2019.’’ Available at http://www.bls.gov/ 

news.release/archives/ecec_06182020.pdf. 

Accessed August 18, 2020. The wage multiplier is 

calculated by dividing total compensation for all 

workers of $37.73 by wages and salaries for all 

workers of $25.91 per hour yielding a benefits 

multiplier of approximately 1.46. 

24U.S. Office of Personnel Management. 2019 

General Schedule (GS) Locality Pay Tables. August 

19, 2020. https://www.opm.gov/policy-dataoversight/pay-leave/salaries-wages/salary-tables/ 

pdf/2019/DCB_h.pdf. 

25U.S. General Services Administration. ‘‘FY 

2019 Per Diem Rates for District of Columbia.’’ 

Accessed on August 19, 2020. Standard CONUS 

rate used for lodging and MI&E. https://

www.gsa.gov/travel/plan-book/per-diem-rates/perdiem-rates-lookup/?action=perdiems_

report&state=DC&fiscal_year=2019&zip=&city=. Per 

diem rates are calendar year instead of fiscal year. 26FEMA took the average of the 12 month per 

diem lodging rates provided by GSA for 

Washington, DC from October 2018 to September 

2019, available at https://www.gsa.gov/travel/planbook/per-diem-rates/per-diem-rates-lookup/ 

?action=perdiems_report&state=DC&fiscal_

year=2019&zip=&city=. 27U.S. General Service Administration. ‘‘FY 2019 

Per Diem Rates—Effective October 1, 2018.’’ 

Accessed on May 24, 2021. Standard CONUS rate 

used for lodging and MI&E. https://www.gsa.gov/ 

cdnstatic/FY2019_PerDiemRatesMasterFile_0.xls. 

Per diem rates are calendar year instead of fiscal 

year. 28U.S. General Services Administration. ‘‘M&IE 

Breakdown.’’ Accessed on May 24, 2021. https:// 

Continued 

process is extremely flexible, and an 

applicant can use whatever resources it 

thinks would be most appropriate for its 

case. For example, in one case, the 

applicant hired several non-local 

attorneys for representation. In another 

case, the arbitration was conducted via 

written reports only, and no hearing was 

conducted. 

Costs to the CBCA are not discussed 

in this analysis. CBCA promulgated 

their own regulations regarding their 

procedures for FEMA arbitration cases. 

Under DRRA, CBCA will be responsible 

for covering the costs of conducting 

arbitration hearings. All other parties 

including the applicant, the recipient, 

and FEMA would be responsible for 

covering their own expenses. The final 

rule does not mandate any costs for the 

applicant or recipient. The arbitration 

process would be entirely voluntary on 

the part of the applicant. Applicants 

would choose to request arbitration if 

they determine that the cost of 

arbitration is justified by the potential 

benefits. 

This analysis estimates a range of 

potential costs based on the applicant’s 

or recipient’s use of attorneys for 

representation. The final rule would not 

require attorneys to represent any party 

for arbitration. However, FEMA would 

be represented by attorneys at any 

arbitration hearing. 

The costs to the applicant, recipient, 

and FEMA would be due to travel and 

opportunity cost of time and contract 

costs for legal counsel and experts. To 

estimate the opportunity cost of time, 

FEMA assumed that each case would 

take each party 46.5 hours (rounded to 

47 hours) to prepare for the hearing, 

attend the hearing, and for post hearing 

work.20 Hearings have historically 

lasted two working days, or 16 hours.21

Additional time would be required for 

travel as is discussed later in this 

analysis. FEMA also assumes that each 

party would make use of expert 

witnesses in support of their case. 

Additionally, FEMA generally pays for 

a court reporter. 

Regulations at 44 CFR 206.209 have a 

30-day time limit for submitting 

arbitration requests; whereas, this final 

rule has a 60 calendar-day time limit for 

arbitrations. Since the 60 calendar-day 

appeals deadline is current FEMA 

policy there will be no additional costs 

for the regulatory text changes at 

§ 206.206(b)(1)(ii)(A) and (b)(2)(ii)(A) 

since it has already been accounted for. 

Opportunity Cost of Time and Wages 

A typical arbitration request requires 

the work of several people, including 

lawyers to represent the applicants, a 

court reporter to take a transcript of the 

hearing, and State, local, Tribal, or PNP 

managers who are responsible for 

compiling and submitting the original 

PA request. Applicants will also 

typically supply expert witnesses when 

making their case to the CBCA panel. 

FEMA used wage rates for General and 

Operations Managers to represent State, 

Tribal, local, and PNP managers. Many 

PA projects involve repair or 

replacement of buildings and 

infrastructure, so FEMA assumes that 

Engineers would be the most likely 

occupation used as expert witnesses. 

FEMA used hourly wage rates from 

the Bureau of Labor Statistics 

Occupational Employment Statistics for 

the following occupations: $69.86 for 

Lawyers (SOC 23–1011), $31.25 for 

Court Reporters and Simultaneous 

Captioners (SOC 23–2093), $48.45 for 

Engineers (SOC 17–2000), and $59.15 

for General and Operations Managers 

(SOC 11–1021).22 To account for the 

benefits paid by employers, FEMA used 

a wage multiplier of 1.46,23 resulting in 

fully-loaded hourly wages of $102.00 for 

Lawyers, $45.63 for Court Reporters and 

Simultaneous Captioners, $70.74 for 

Engineers, and $86.36 for General and 

Operations Managers. 

FEMA used the 2019 hourly wage 

tables for the Washington-BaltimoreArlington, DC-MD-VA-WV-PA 24

locality rate for FEMA employees 

participating in arbitration cases. Based 

on current FEMA practice, FEMA 

assumes that GS–13 employees would 

perform both legal and other services for 

an arbitration case and the work would 

be reviewed by a manager at the GS–15 

level. The hourly GS–13 Step 5 salary 

was $53.85, and the hourly GS–15 step 

5 salary was $74.86. In order to account 

for the benefits paid by employers, 

FEMA used a 1.46 multiplier to 

calculate loaded wage rates of $78.62 for 

a GS–13 Federal employee and $109.30 

for a GS–15 Federal employee. 

Travel 

Arbitration cases are heard by a panel 

of judges of the CBCA, which is based 

in Washington, DC. The arbitration 

process is very customizable, so 

applicants can choose to have the 

hearings locally, where a CBCA judge 

would travel to their location, and 

FEMA would also send its 

representatives. Alternatively, cases 

could be heard at the CBCA, and the 

applicant would travel to Washington, 

DC, along with any lawyers and expert 

witnesses. Finally, the applicant could 

choose to have the CBCA review 

documents, and nobody would be 

required to travel. Because PA 

applicants are located throughout the 

U.S. and can be travelling from any 

location within the U.S., FEMA used 

average nationwide travel costs to 

estimate the travel costs for this rule. 

The U.S. General Service 

Administration (GSA) provides 

guidance on travel policy, hotel rates, 

and meals and incidentals for Federal 

employees. FEMA used GSA data on 

hotel prices and per diem rates to 

estimate travel expense costs of 

attending a hearing in person.25 Because 

data on travel expenses for non-Federal 

employees is not available, FEMA used 

the Federal lodging and per diem rates 

for applicants traveling to Washington, 

DC to attend hearings. According to 

GSA, in 2019, the average price of a 

hotel room in Washington, DC was $216 

per night 26 and outside of the 

Washington, DC metro area was $94 per 

night.27 The per diem rate for meals and 

incidentals on the first and last travel 

days 28 is $57 and $76 for other travel 


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www.gsa.gov/travel/plan-book/per-diem-rates/miebreakdown. Per GSA, first and last travel days meals 

and incidentals expenses (M&IE) for the first and 

last calendar day of travel is calculated at 75 

percent of the total M&IE. 29U.S. General Service Administration. ‘‘FY 2019 

Per Diem Rates—Effective October 1, 2018.’’ 

Accessed on May 24, 2021. Standard CONUS rate 

used for lodging and MI&E. https://www.gsa.gov/ 

cdnstatic/FY2019_PerDiemRatesMasterFile_0.xls. 

Per diem rates are calendar year instead of fiscal 

year. 

30Bureau of Transportation Statistics. ‘‘Annual 

Fares 1995–2019 4Q 2019’’ (.xlsx) March 23, 2020. 

U.S. Department of Transportation. https://

www.bts.gov/sites/bts.dot.gov/files/Annual%20

Fares%201995-2020%201Q2020.xlsx. 

31Unadjusted 2019 dollars. Excludes airline 

tickets under $50. 

32FEMA deducts the 11 hours of travel time from 

the total of 47 hours used for a hearing in 

Washington, DC to come up with the total time for 

a hearing at the applicant’s location assuming the 

expert witness is also local. Therefore, 36 hours is 

derived from the 20 hours estimated for preparing 

for the hearing and 16 hours for the duration of the 

hearing. 

day(s) in Washington, DC. Similarly, the 

per diem rates for meals and incidentals 

on the first and last day is $41 and $55 

for the other days outside of 

Washington, DC.29

The U.S. Department of 

Transportation (DOT) provides 

information on the price of domestic 

airfare.30 According to the Bureau of 

Transportation Statistics, the annual 

unadjusted cost of an average domestic 

flight within the United States, the 

average airfare was $355 roundtrip in 

2019.31 The total travel costs for 

applicants attending hearings in 

Washington, DC that typically last 3 

nights and 4 days would be $1,269 per 

person ($355 average airfare + ($216 

hotel in Washington, DC × 3 nights) + 

($76 meals and incidentals × 2 days of 

stay) + ($57 meals and incidentals × 2 

travel days)) = $1,269). 

Expert Witnesses 

FEMA assumes that each party would 

make use of expert witnesses to support 

their case. The expert witnesses would 

be required to travel to the hearing at 

the expense of the party that hired them. 

Based on historical experience, 

preparing for the hearing is estimated to 

take 20 hours, the duration of the 

hearing is estimated to be 16 hours and 

the travel time is estimated at 11 hours 

for a total of 47 hours for a hearing in 

Washington, DC. Therefore, the 

opportunity costs of time for one expert 

witness to attend a hearing would be 

$3,325 ($70.74 engineers wages × 47 

hours). Thus, the total cost for one 

expert witness’ travel and opportunity 

cost of time is $4,594 ($1,269 + $3,325). 

Table 2 shows the detailed costs per 

expert witness to attend a hearing in 

Washington, DC. To provide a range of 

estimates since cases vary, a hearing at 

the applicant’s location for an expert 

witness would cost $2,547 ($70.74 

engineers wages × 36 hours 32). This 

total assumes the expert witness is local 

and therefore incurs no travel costs. 

TABLE 2—ESTIMATED COST PER EXPERT WITNESS, WASHINGTON, DC HEARING

[2019$] 

Round trip flight Three nights of lodging at $219 per night Meals and incidentals Total travel 

expenses 

Opportunity costs of 

time for a 

hearing in 

Washington, DC 

Total expert 

witness cost 

(A) (B) (C) (D) = (A + B + C) (E) (D + E) 

$355 $648 $266 $1,269 $3,325 $4,594 

Cost for the Applicant 

The typical total cost for the applicant 

includes travel expenses (round trip 

flight, three nights of lodging, and meals 

and incidentals) and opportunity costs 

of time for the applicant, the applicant’s 

representatives, and the expert 

witnesses. The total travel expenses for 

the applicant and the representative 

would be $2,538 ($1,269 × 2 personnel 

= $2,538), if the hearing is held in 

Washington, DC. As previously 

discussed in this analysis, costs include 

47 hours for hearing preparation, 

attending the hearing, and post hearing 

work, plus 11 hours of travel time for 

applicants and the applicant’s 

representative. FEMA notes that an 

applicant can choose not to bring a 

representative or an applicant’s 

representative could be one attorney or 

in some cases more than one attorney. 

To provide a range of costs, FEMA 

analyzes the typical case where one 

attorney or no attorneys are present. If 

the applicant’s representative is an 

attorney, the opportunity costs of time 

would be $10,925 (($102.00 per hour 

wages for a lawyer × 58 hours) + ($86.36 

per hour wages for a general and 

operations manager × 58 hours) = 

$10,925). If the applicant does not use 

an attorney as their representative, the 

opportunity costs of time would be 

$10,018 (2 general and operations 

managers at $86.36 each × 58 hours = 

$10,018). Table 3 shows the range of 

total costs to the applicant which 

include the opportunity costs of time 

and the travel costs. 

TABLE 3—RANGE OF APPLICANT COSTS—WASHINGTON, DC HEARING

[2019$] 

Opportunity cost 

of time Travel Total 

1 Attorney and 1 Non-Attorney .................................................................................. $10,925 $2,538 $13,463 

2 Non-Attorneys ......................................................................................................... 10,018 2,538 12,556 

The total cost to the applicant if they 

were to travel to Washington, DC for a 

hearing with a representative and two 

expert witnesses, ranges from $21,744 

((2 expert witnesses at a cost of $4,594 

each) + $12,556 applicant cost) if the 

representatives are 2 non-attorneys to 

$22,651 ((2 expert witnesses at $4,594 

each) + $13,463 applicant and attorney 

cost) if the representatives are 1 attorney 

and 1 non-attorney. 


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33Based on information provided by FEMA Office 

of Chief Counsel Disaster Disputes Branch. 

34FEMA estimates that we could need up to four 

expert witnesses. FEMA’s expert witnesses may or 

may not speak at the hearing. Additionally, FEMA 

may hire an expert witness so that FEMA can 

consult with them about the subject matter. 

For a local hearing, the costs to the 

applicant would include 47 hours of 

opportunity costs of time for the 

applicant and representative (assuming 

the representative is local), and 36 hours 

of opportunity costs of time to attend 

the hearing for two expert witnesses 

(assuming the expert witnesses are 

local) and would range from $13,211 ((2 

general and operations managers at 

$86.36 each × 47 hours) + (2 expert 

witnesses at $70.74 each × 36 hours) = 

$13,211) to $13,946 (($86.36 for a 

general and operations manager × 47 

hours) + ($102.00 for an attorney × 47 

hours) + (2 expert witnesses at $70.74 

each × 36 hours) = $13,946) depending 

on who the recipient uses as a 

representative. Table 4 shows the range 

of total costs for an applicant for 

hearings held at the applicant’s location. 

TABLE 4—APPLICANT COSTS—LOCAL HEARING

[2019$] 

Expert witnesses Opportunity cost 

of time Total 

1 Attorney and 1 Non-Attorney .................................................................................. $5,093 $8,853 $13,946 

2 Non-Attorneys ......................................................................................................... 5,093 8,118 13,211 

Cost for the Recipient 

The recipient would not present 

information in the arbitration case but 

would send one or more representatives 

in a supporting role for the applicant. 

The cost per arbitration case for the 

recipient is the opportunity costs of 

time for the representatives totaling 

$10,018 (2 general and operations 

managers at $86.36 each × 58 hours = 

$10,018) and travel expenses $2,538 (2 

representatives × $1,269) of those 

attending the hearing in Washington, 

DC. As shown in table 5, the total cost 

to the recipient would be $12,556 if the 

hearing was held in Washington, DC. 

TABLE 5—ESTIMATED RECIPIENT COSTS, WASHINGTON, DC HEARING

[2019$] 

Opportunity cost 

of time Travel Total 

General and Operations Managers ........................................................................... $10,018 $2,538 $12,556 

For a local hearing, two 

representatives would spend 47 hours 

on the case and the cost to the recipient 

would be $8,118 (2 general and 

operations managers at $86.36 each × 47 

hours = $8,118). 

Cost to Government/FEMA 

FEMA would require two attorneys 

for a typical arbitration case, a GS–13 

step 5 attorney and a GS–15 step 5 

supervisory attorney, to review and to 

prepare a response to the request for 

arbitration. Based on historical 

experience, the two attorneys’ total time 

from preparation to post hearing is 47 

hours.33 The opportunity costs of time 

of the attorneys, including preparation 

and review of a case, is $8,832 (($78.62 

GS–13 Step 5 attorney × 47 hours) + 

($109.30 GS 15 Step 5 Supervisory 

Attorney × 47) hours = $8,832). 

Based on historical experience, FEMA 

would also require four non-attorneys 

(e.g., GS–13 Step 5 program analysts) to 

support the arbitration case only for the 

duration of the hearing. The opportunity 

costs of time associated with the 

program analysts would be $5,032 (4 

GS–13 Step 5 program analysts at 

$78.62 each × 16 hours = $5,032). Thus, 

the total opportunity costs of time for all 

six FEMA personnel would be $13,864. 

FEMA would also call their own expert 

witnesses to attend the hearing. Based 

on historical experience, FEMA assumes 

that it would use four expert witnesses 

per case 34 for a total of $10,188 ($2,547 

cost per expert witness × 4 expert 

witnesses = $10,188). The expert 

witnesses provide testimony on a range 

of subjects, for example soil degradation 

or building construction. 

Arbitration hearings do not require 

transcription services. However, FEMA 

has historically hired a court reporter 

for hearings and provided the transcript 

to the CBCA for their records. FEMA 

will continue to pay for a court reporter 

for the duration of a hearing under the 

final rule, but will not provide a 

transcript to the CBCA. The opportunity 

costs of time for the court reporter 

services for a transcript would be $730 

per arbitration case ($45.63 per hour 

wages for Court Reporters and 

Simultaneous Captioners × 16 hours of 

arbitration time = $730). 

The estimated total cost to FEMA, 

including staff time, expert witnesses, 

and transcript services, would be 

$24,782 per case. Table 6 presents the 

cost of each component by opportunity 

cost of time and other costs. 

TABLE 6—ESTIMATED FEMA COSTS—WASHINGTON, DC HEARING

[2019$] 

Cost for four expert witnesses Cost of court reporter 

Cost for FEMA employees 

(2 attorneys and 4 program 

analysts) 

Total per-case cost to FEMA 

$10,188 $730 $13,864 $24,782 


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For a hearing at the applicant’s 

location, FEMA representatives would 

need to travel to the location of the 

hearing. Costs for a local hearing would 

be higher for FEMA due to paying for 

travel time as well as actual travel costs. 

Travel costs are estimated using the 

figures previously mentioned and 

would be $1,269 per person for a total 

of $2,538, if 2 attorneys travel to the 

applicant’s location. Additionally, 

FEMA estimates that the time would 

increase to 58 hours due to 11 hours of 

travel time for the attorneys totaling (2 

attorneys at $109.30 each × 58 hours) 

$12,679 plus $5,032 for non-travelling 

program analysts resulting in a total cost 

of $17,711. The total estimated costs to 

FEMA for a local hearing are presented 

in Table 7. 

TABLE 7—ESTIMATED FEMA COSTS—LOCAL

[2019$] 

Cost for four expert 

witnesses Cost of court reporter Opportunity costs of time for FEMA employees 

Travel costs 

(2 attorneys) 

Total per-case cost to 

FEMA 

$10,188 $730 $ 17,711 $2,538 $31,167 

In addition to these costs, FEMA’s PA 

Program hired an Arbitration 

Coordinator at the GS–13 Step 5 level 

with an annual salary of $116,353. With 

the 1.46 multiplier for a fully loaded 

wage rate, the additional cost to FEMA 

is $169,875 per year. Therefore, the 

annual total costs to FEMA range from 

$194,657 ($169,875 + $24,782) if the 

hearing is held in Washington, DC to 

$201,042 ($169,875 + $31,167) if the 

hearing is held at the applicant’s 

location. 

Total Costs 

The total cost per case vary based on 

who the applicant uses as a 

representative, and whether the hearing 

is held in Washington, DC or local to the 

applicant. Government and FEMA costs 

would be higher for a hearing held local 

to the applicant, and likewise, applicant 

and recipient costs would be higher if 

the hearing was held in Washington, 

DC. FEMA estimates that the total costs 

per case to range between $52,496 and 

$59,989. Table 8 presents the range of 

estimated costs per arbitration case. 

TABLE 8—TOTAL COST PER CASE

[2019$] 

FEMA Applicant Recipient Total 

Low .......................................................................................... $31,167 $13,211 $8,118 $52,496 

High .......................................................................................... 24,782 22,651 12,556 59,989 

As established earlier in this analysis, 

FEMA estimates an average of 15 

arbitration cases per year. Therefore, 

FEMA estimates the total annual costs 

to range between $957,315 ((15 cases × 

$31,167 per case) + $169,875 to hire a 

new FEMA employee + (15 cases × 

$13,211 per case for applicant) + (15 

cases × $8,118 per case for the recipient) 

= $957,315) (low) and $1,069,710 ((15 

cases × $24,782 per case) + $169,875 for 

a new FEMA employee + (15 cases × 

$22,651 per case for the applicant) + (15 

cases × $12,556 for the recipient) = 

$1,069,710) (high). Table 9 shows the 

estimated total costs per year of this 

final rule. The low-cost estimate 

assumes that all hearings would be held 

at the applicant’s location, while the 

high estimate assumes hearings would 

be held in Washington, DC. 

TABLE 9—TOTAL COST PER YEAR FOR 15 CASES

[2019$] 

FEMA Applicant Recipient Total 

Low .......................................................................................... $637,380 $198,165 $121,770 $957,315 

High .......................................................................................... $541,605 $339,765 $188,340 $1,069,710 

Tables 10 and 11 show the total 10- 

year costs and 10-year costs annualized 

at 3 percent and 7 percent. 

TABLE 10—10-YEAR COST TOTALS USING 3 PERCENT AND 7 PERCENT DISCOUNT RATES

[Low estimate, 2019$] 

Year FEMA costs Applicant costs Recipient costs Total costs 

Annual costs 

discounted 

at 3% 1

Annual costs 

discounted 

at 7% 1

1 ....................................... $637,380 $198,165 $121,770 $957,315 $929,432 $894,687 

2 ....................................... 637,380 198,165 121,770 957,315 902,361 836,156 

3 ....................................... 637,380 198,165 121,770 957,315 876,079 781,454 

4 ....................................... 637,380 198,165 121,770 957,315 850,562 730,331 

5 ....................................... 637,380 198,165 121,770 957,315 825,788 682,552 


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TABLE 10—10-YEAR COST TOTALS USING 3 PERCENT AND 7 PERCENT DISCOUNT RATES—Continued 

[Low estimate, 2019$] 

Year FEMA costs Applicant costs Recipient costs Total costs 

Annual costs 

discounted 

at 3% 1

Annual costs 

discounted 

at 7% 1

6 ....................................... 637,380 198,165 121,770 957,315 801,736 637,899 

7 ....................................... 637,380 198,165 121,770 957,315 778,385 596,168 

8 ....................................... 637,380 198,165 121,770 957,315 755,713 557,166 

9 ....................................... 637,380 198,165 121,770 957,315 733,702 520,716 

10 ..................................... 637,380 198,165 121,770 957,315 712,332 486,650 

Total .......................... 6,373,800 1,981,650 1,217,700 9,573,150 8,166,090 6,723,779 

Annualized ....................... ............................ ............................ ............................ ............................ 957,315 957,315 

1The annualized amounts for 7 percent and 3 percent are equal in this table because the amounts for each year are identical and the first 

year is discounted. 

TABLE 11—10-YEAR COST TOTALS USING 3 PERCENT AND 7 PERCENT DISCOUNT RATES

[High estimate, 2019$] 

Year FEMA costs Applicant costs Recipient costs Total costs 

Annual costs 

discounted 

at 3% 1

Annual costs 

discounted 

at 7% 1

1 ....................................... $541,605 $339,765 $188,340 $1,069,710 $1,038,553 $999,729 

2 ....................................... 541,605 339,765 188,340 1,069,710 1,008,304 934,326 

3 ....................................... 541,605 339,765 188,340 1,069,710 978,936 873,202 

4 ....................................... 541,605 339,765 188,340 1,069,710 950,423 816,077 

5 ....................................... 541,605 339,765 188,340 1,069,710 922,741 762,688 

6 ....................................... 541,605 339,765 188,340 1,069,710 895,865 712,793 

7 ....................................... 541,605 339,765 188,340 1,069,710 869,772 666,162 

8 ....................................... 541,605 339,765 188,340 1,069,710 844,439 622,581 

9 ....................................... 541,605 339,765 188,340 1,069,710 819,844 581,851 

10 ..................................... 541,605 339,765 188,340 1,069,710 795,965 543,786 

Total .......................... 5,416,050 3,397,650 1,883,400 10,697,100 9,124,842 7,513,195 

Annualized ....................... ............................ ............................ ............................ ............................ 1,069,710 1,069,710 

1The annualized amounts for 7 percent and 3 percent are equal in this table because the amounts for each year are identical and the first 

year is discounted. 

FEMA continues to believe that there 

will not be any implementation or 

familiarization costs. FEMA currently 

has an arbitration process that is very 

similar to the final rule for cases arising 

from Hurricanes Katrina and Rita. 

Additionally, FEMA has already 

notified eligible applicants, dating back 

to January 1, 2016 of their eligibility for 

arbitration under DRRA Section 1219. 

Further, applicants will not have 

familiarization costs because the process 

for requesting arbitration will consist of 

an email request and will use materials 

previously submitted in the application 

for PA funding. 

Benefits 

The benefits of this final rule are 

qualitative in nature and apply mostly 

to the applicant. FEMA believes that 

this final rule will further its mission of 

supporting State, Tribal, and local 

governments, as well as eligible PNPs by 

offering them an alternative procedure 

for disputing PA eligibility and funding 

decisions. Applicants retain the option 

to submit a second appeal. The final 

rule offers an alternative that the 

applicant might see as more impartial 

because the arbitration cases would be 

heard by CBCA judges, as opposed to 

second appeals that would continue to 

be conducted entirely within FEMA. 

Additionally, applicants have the 

opportunity to present their case in 

person and call expert witnesses to 

support their claims. These two options 

allow applicants to choose a course of 

action that is most appropriate to their 

circumstances. 

Customization 

Applicants may select arbitration, if 

they consider this process more 

customizable. The arbitration process 

provides applicants with the 

opportunity to appear in person before 

an impartial panel and present evidence 

as to why they are disputing a FEMA 

determination. Applicants can also 

retain expert witnesses to provide 

support to their position. Expert 

witnesses provide testimony within 

their technical specialty to assist the 

arbitration panel in understanding the 

underlying work for which FEMA 

ultimately decides eligibility. 

Additionally, applicants have the 

opportunity to respond in real time to 

evidence presented by FEMA, allowing 

them more control over the dispute than 

they might have under a second appeal. 

Applicants may opt to hire an expert 

witness in arbitration to help present 

the disputed information in a manner 

more favorable to the applicant. The 

ability to hire expert witnesses may 

provide applicants with additional 

utility and may be an incentive to select 

arbitration. 

The final rule also allows applicants 

to present the same technical 

documentation in both the appeals and 

arbitration procedures. An applicant 

who submits a first appeal but elects 

withdrawal in favor of arbitration may 

opt to reuse the information in the 

request for arbitration that was 

previously submitted in the first appeal. 


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35Based on information provided by FEMA Office 

of Chief Counsel Disaster Disputes Branch. 

36Based on information provided by FEMA Office 

of Chief Counsel Disaster Disputes Branch. 

Applicants may gain utility from the 

convenience of reusing documents. 

Impartiality 

It is not possible to quantify an 

applicant’s increased utility due to 

perceived impartiality. The purpose of 

arbitration is to create a process to 

resolve the issues in a manner 

satisfactory to all parties. Based on past 

cases, FEMA has granted or partially 

granted about 23 percent of the second 

appeals submitted by applicants.35

CBCA has found in favor or partially in 

favor for the applicant about 13 percent 

of Katrina/Rita arbitrations.36

The applicant may nevertheless 

perceive they have a better opportunity 

to gain additional Federal funding 

through arbitration. Applicants may 

select arbitration to have cases reviewed 

by a third party, rather than an appeal 

process that is conducted entirely by 

FEMA. Applicants may perceive this to 

be a more impartial system, if the forum 

encourages both parties to solicit 

discussion rather than ‘‘paper’’ based 

appeals. Applicants may expect that 

impartiality would best achieve the 

objective of an equitable resolution. 

Tables 12 and 13 analyze the 

historical outcomes from second 

appeals and arbitration from 44 CFR 

206.209. Because of the unpredictable 

nature and unique circumstances of 

every disaster, these figures may not be 

representative of future outcomes, as the 

outcomes are based on the arbitration 

policies for Hurricanes Rita and Katrina 

and the unique circumstances of each 

case. 

TABLE 12—SECOND APPEALS OUTCOMES

[2010–2019] 

Second appeal outcome Number of cases Percent 

Granted ........................................................................................................................................................ 138 15.8 

Denied .......................................................................................................................................................... 594 68.0 

Partially Granted .......................................................................................................................................... 78 8.9 

Active ........................................................................................................................................................... 37 4.2 

Other 1 .......................................................................................................................................................... 27 3.1 

Total ...................................................................................................................................................... 874 100.0 

1The category of Other includes appeal decision not available, remand, rescind, arbitration, and withdrawn. 

TABLE 13—ARBITRATION OUTCOMES UNDER 44 CFR 206.209 

[2010–2019] 

Arbitration outcome Number of cases Percent 

Matters Resolved Without CBCA Decision ................................................................................................. 24 33.3 

In Favor of FEMA ........................................................................................................................................ 22 30.6 

In Favor of Applicant ................................................................................................................................... 6 8.3 

Partial in Favor of Applicant ........................................................................................................................ 3 4.2 

Withdrawn .................................................................................................................................................... 12 16.7 

Other 2 .......................................................................................................................................................... 5 6.9 

Total ...................................................................................................................................................... 72 100 

2The category of Other includes other decision, dismissed, and ongoing cases. 

Transfers 

FEMA is unable to quantify transfers 

because of the unpredictability of the 

results of this final rule. Transfers 

would arise from the possibility that 

FEMA may award a different amount of 

grant funding under the arbitration 

process than it would under current 

regulations that only allow for a second 

appeal. However, it would be 

speculative for FEMA to make an 

estimate as to the potential changes in 

grant disbursement that would result 

from this final rule. 

Impacts 

Table 14 summarizes the costs, 

benefits, and transfer impacts of this 

final rule. 

TABLE 14—OMB CIRCULAR A–4 ACCOUNTING TABLE

Category 

Estimates Units 

Low estimate High estimate Dollar year 

Discount 

rate 

(%) 

Period 

covered 

Benefits: 

Annualized Monetized .................................................. $0 $0 2019 7 10 Years. 

0 0 2019 3 10 Years. 

Annualized Quantified .................................................. 0 0 


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37 ‘‘The Federal share of assistance is not less than 

75 percent of the eligible cost. The recipient 

determines how the non-Federal share (up to 25 

percent) is split with the subrecipients (i.e., eligible 

applicants).’’ Program Overview: Public Assistance. 

FEMA. https://www.fema.gov/assistance/public/ 

program-overview. Last accessed on: May 25, 2021. 

38 2010 Standards for Delineating Metropolitan 

and Micropolitan Statistical Areas; Notice. Office of 

Management and Budget. See 75 FR 37246, June 28, 

2010. https://www.govinfo.gov/content/pkg/FR2010-06-28/pdf/2010-15605.pdf. Last accessed: May 

25, 2021. 

TABLE 14—OMB CIRCULAR A–4 ACCOUNTING TABLE—Continued 

Category 

Estimates Units 

Low estimate High estimate Dollar year 

Discount 

rate 

(%) 

Period 

covered 

0 0 

Qualitative ..................................................................... • Additional option for review of PA projects and decisions. 

• Greater perception of impartiality in the arbitration process. 

• Ability to customize arbitration process. 

Costs: 

Annualized Monetized .................................................. 957,315 1,069,710 2019 7 10 Years. 

957,315 1,069,710 2019 3 10 Years. 

Annualized Quantified .................................................. 0 0 

0 0 

Qualitative ..................................................................... • Longer time frame to resolve disputes under arbitration option. 

Transfers .............................................................................. Possible changes to PA grant disbursements. 

Effects: 

Small Entities ................................................................ FEMA expects 11 arbitration cases per year from small entities with an estimated 

cost of between $13,211 and $22,651 per small entity. 

Wages .......................................................................... None. 

Growth .......................................................................... None. 

Uncertainty Analysis 

The estimates of the costs of the final 

rule are subject to uncertainty due to the 

uniqueness of each arbitration case. The 

cost estimates can vary widely 

depending on complexity and other 

factors. As a result, the cost estimate 

could be overstated or understated. 

There are several sources of 

uncertainty in this analysis: The number 

of eligible applicants, the final 

deadlines for filing, and the potential 

number of arbitration cases. Major 

disasters do not occur on a regular time 

interval. The severity of the disaster 

would affect the number of applicants 

that decide to apply for funding in the 

PA Program. The number of eligible 

applicants can vary year-to-year. 

Historical data used in this analysis 

was based on the arbitration process for 

Hurricanes Katrina and Rita, which is 

different in a couple of key respects 

from this final arbitration process. 

While the cost shares for Katrina and 

Rita were 100 percent, cost shares for 

future disaster declarations may be as 

high as 25 percent for applicants.37

Because Katrina/Rita applicants were 

not required to pay for any portion of 

their project cost, they had an incentive 

to apply for more costly projects and 

pursue arbitration when denied. Future 

disasters with a cost share may lead 

applicants to be more conservative in 

applying for PA projects, which may 

result in fewer arbitration requests than 

was indicated in the primary estimate. 

Additionally, the timeframe for 

submitting arbitration requests under 44 

CFR 206.209 was 30 days. However, 

FEMA is implementing a 60-day 

submission deadline for arbitration 

submissions under DRRA requirements 

to align with the 60-day submission 

timeframe for second appeals. This 

additional time may affect the number 

of arbitration cases submitted in the 

future, but FEMA cannot reliably 

predict these impacts at this time. 

Alternatives 

FEMA identified several alternative 

regulatory approaches to the 

requirements in this final rule. The 

alternatives included: (1) Not issuing a 

mandatory regulation; (2) an alternate 

definition of rural; and (3) not requiring 

electronic submission. 

FEMA did not consider the first 

alternative option of not issuing a 

mandatory regulation. The DRRA 

mandates FEMA to promulgate a rule 

allowing the option of arbitration in lieu 

of a second appeal and specifies the 

CBCA as the arbitration administrator. 

As such, FEMA must pursue a 

regulatory action. 

FEMA considered using an alternate 

definition of rural, such as OMB’s 

nonmetropolitan area definition. OMB’s 

nonmetropolitan area is defined as areas 

outside the boundaries of metropolitan 

areas.38

Nonmetropolitan areas are outside the 

boundaries of metropolitan areas and 

are further subdivided into two types: 

1. Micropolitan (micro) areas, which 

are nonmetro labor-market areas 

centered on urban clusters of 10,000– 

49,999 persons and defined with the 

same criteria used to define metro areas. 

2. All remaining counties, often 

labeled ‘‘noncore’’ counties because 

they are not part of ‘‘core-based’’ metro 

or micro areas. 

OMB defines metropolitan areas to 

include: 

1. Central counties with one or more 

urbanized areas; urbanized areas are 

densely-settled urban entities with 

50,000 or more people. 

2. Outlying counties that are 

economically tied to the core counties 

as measured by labor-force commuting. 

Outlying counties are included if 25 


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percent of workers living in the county 

commute to the central counties, or if 25 

percent of the employment in the 

county consists of workers coming out 

from the central counties—the so-called 

‘‘reverse’’ commuting pattern. 

FEMA did not recommend using 

OMB’s definition because it combines 

rural area populations into Metropolitan 

counties. The OMB definition would 

also result in some rural areas, such as 

the Grand Canyon, being considered a 

metropolitan county. This alternative 

would not result in reducing the impact 

on small entities, while accomplishing 

the stated objective of the rule. 

FEMA considered not requiring 

applicants to submit a request for 

arbitration electronically. Current 

practices allow FEMA to accept hard 

copy submissions (through U.S. Mail or 

other means) for first and second 

appeals. In addition, FEMA currently 

accepts electronic submissions for 

requests for arbitration under 44 CFR 

206.209. FEMA chose to require 

electronic submissions as it would 

provide FEMA with enhanced ability to 

track and establish deadlines in the 

arbitration process. CBCA’s rule 

requires applicants to use an electronic 

method to submit their documentation 

and request for arbitration to CBCA. 

Thus, requiring electronic submission 

will not pose an undue burden on most 

applicants. 

B. Regulatory Flexibility Act 

The Regulatory Flexibility Act of 1980 

(5 U.S.C. 601 et seq.) and Executive 

Order 13272 (67 FR 53461, Aug. 16, 

2002) require agency review of proposed 

and final rules to assess their impact on 

small entities. An agency must prepare 

a Final Regulatory Flexibility Analysis 

(FRFA) unless it determines and 

certifies that a rule, if promulgated, will 

not have a significant economic impact 

on a substantial number of small 

entities. This final rule will not have a 

significant economic impact on a 

substantial number of small entities. In 

accordance with the Regulatory 

Flexibility Act, a FRFA must contain the 

following statements, including 

descriptions of the reason(s) for the 

rulemaking, its objective(s), the affected 

small entities, any additional burden for 

book or record keeping and other 

compliance requirements; any Federal 

rules that duplicate, overlap, or conflict 

with the rulemaking, and significant 

alternatives considered. The following 

sections address these subjects 

individually in the context of this final 

rule. 

1. Statement of a need for, and 

objectives of the rule. 

PA helps State and local governments 

respond to and recover from the 

challenges faced during major disasters 

and emergencies. To support State and 

local governments facing those 

challenges, Congress passed DRRA. 

Under the PA Program, as authorized 

by the Stafford Act, FEMA awards 

grants to eligible applicants to assist 

them in responding to and recovering 

from Presidentially-declared 

emergencies and major disasters. The 

recipient, as defined at 44 CFR 

206.201(m), is the government to which 

a grant is awarded, and which is 

accountable for the use of the funds 

provided. Generally, the State for which 

the emergency or major disaster is 

declared is the recipient. The recipient 

can also be an Indian Tribal 

government. The applicant, as defined 

at 44 CFR 206.201(a), is a State agency, 

local government, or eligible PNP 

submitting an application to the 

recipient for assistance under the State’s 

grant. 

The PA Program provides Federal 

funds for debris removal, emergency 

protective measures, repair and 

replacement of roads and bridges, 

utilities, water treatment facilities, 

public buildings, and other 

infrastructure. When the President 

declares an emergency or major disaster 

declaration authorizing disbursement of 

funds through the PA Program, that 

presidential declaration automatically 

authorizes FEMA to accept applications 

from eligible applicants under the PA 

Program. To apply for a grant under the 

PA Program, the eligible applicant must 

submit a Request for PA to FEMA 

through the recipient. Upon award, the 

recipient notifies the applicant of the 

award, and the applicant becomes a 

subrecipient. 

Applicants currently have a right to 

arbitration to dispute FEMA eligibility 

determinations associated with 

Hurricanes Katrina and Rita; see 44 CFR 

206.209. The DRRA amended the 

Stafford Act and FEMA promulgated a 

regulation providing all applicants the 

right to request arbitration for disputes 

under all disaster declarations after 

January 1, 2016 that are above certain 

dollar amount thresholds. This final 

rule implements the Section 1219 

requirements of DRRA and will grant 

applicants an additional method of 

recourse. 

2. Statement of the significant issues 

raised by the public comments in 

response to the Initial Regulatory 

Flexibility Analysis (IRFA), a statement 

of the assessment of the agency of such 

issues, and a statement of any changes 

made to the proposed rule as a result of 

such comments. 

FEMA did not receive any comments 

on the IRFA for this rule, and therefore 

did not make any changes to this FRFA 

from the proposed rule due to public 

comments. 

3. The response of the agency to any 

comments filed by the Chief Counsel for 

Advocacy of the Small Business 

Administration (SBA) in response to the 

proposed rule, and a detailed statement 

of any change made to the final rule as 

a result of the comments. 

FEMA did not receive any comments 

on the proposed rule from the Chief 

Counsel for Advocacy of the SBA. 

4. A description of and an estimate of 

the number of small entities to which 

the rule will apply or an explanation of 

why no such estimate is available. 

‘‘Small entity’’ is defined in 5 U.S.C. 

601. The term ‘‘small entity’’ can have 

the same meaning as the terms ‘‘small 

business,’’ ‘‘small organization,’’ and 

‘‘small governmental jurisdiction.’’ 

Section 601(3) defines a ‘‘small 

business’’ as having the same meaning 

as ‘‘small business concern’’ under 

Section 3 of the SBA. This includes any 

small business concern that is 

independently owned and operated and 

is not dominant in its field of operation. 

Section 601(4) defines a ‘‘small 

organization’’ as any not-for-profit 

enterprise which is independently 

owned and operated and is not 

dominant in their field of operation. 

Section 601(5) defines ‘‘small 

governmental jurisdiction’’ as 

governments of cities, counties, towns, 

townships, villages, school districts, or 

special districts, with a population of 

less than 50,000. 

The SBA also stipulates in its size 

standards of how large an entity may be 

and still be classified as a ‘‘small 

entity.’’ These small business size 

standards are matched to industries 

described in the North American 

Industry Classification System to 

determine if an entity is considered 

small. 

This final rule does not place any 

additional requirements on small 

entities. It does, however, offer them an 

alternative means to dispute FEMA’s 

determination for PA eligibility. If the 

entity chooses to dispute a PA 

determination, and they select 


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39FEMA reported 3,778 applicants in the NPRM 

to this rule. The number of applicants has since 

been adjusted to account for more recent data and 

new timeframe for analysis. The NPRM contained 

data from 2009–2017 due to the limited data 

available at that time. This final rule contains data 

from 2010–2019. 

40Slovin’s formula is n = N/(1 + N*e¥2). 3,478/ 

(1 + 3,478 × 0.1¥2) = 97 (rounded). 

41 Information on population sizes was obtained 

using the U.S. Census Bureau’s City and Town 

Population Totals 2010–2018. Available at https:// 

www.census.gov/data/tables/time-series/demo/ 

popest/2010s-total-cities-and-towns.html. 

42Small Business Administration. ‘‘Table of Size 

Standards’’ (.xlxs). Available at https://

www.sba.gov/document/support-table-sizestandards. Revenue and employment information 

for individual PNP’s was obtained from PNP 

websites. 

arbitration rather than a second appeal, 

they would be responsible for their 

share of the cost of the arbitration 

process. 

All small entities would have to meet 

the final requirements to be eligible for 

arbitration. FEMA identified 3,478 

applicants for FEMA’s PA Program 39

that would be eligible for arbitration 

under the final requirements for the 

time frame from 2010 through 2019. 

FEMA used Slovin’s formula 40 and a 90 

percent confidence interval to 

determine the sample size. FEMA 

sampled 97 of these applicants and 

found that 74 (76 percent) met the 

definition of a small entity based on the 

population size of local governments 

(less than 50,000 population),41 or PNPs 

based on size standards set by the 

SBA.42 The remaining 23 entities were 

not found to be considered small 

entities. Eligible small entities included 

67 small government agencies and seven 

PNP organizations. Based on 

information presented in the Executive 

Orders 12866 and 13563 section, FEMA 

estimates 15 arbitration cases per year. 

If 76 percent of these are small entities, 

FEMA estimates 11 arbitration requests 

per year from small entities with an 

average cost of between $13,211 and 

$22,651 per case. Eleven small entities 

do not represent a substantial number of 

small entities impacted by this final rule 

and the costs imposed to these small 

entities are not significant. 

5. Description of the projected reporting, 

recordkeeping, and other compliance 

requirements of the rule, including an 

estimate of the classes of small entities 

which will be subject to the requirement 

and the types of professional skills 

necessary for preparation of the report 

or record. 

Arbitration—As an alternative to the 

appeal process, applicants may request 

arbitration of the disputed 

determination. To be eligible for Section 

423 arbitration, a PA applicant’s request 

must meet all three of the following 

conditions: (1) The amount in dispute 

arises from a disaster declared after 

January 1, 2016; (2) the disputed 

amount exceeds $500,000 (or $100,000 

if the applicant is in a ‘‘rural area,’’ 

defined as having a population of less 

than 200,000 living outside an 

urbanized area); and (3) the applicant 

submitted a first appeal with FEMA 

pursuant to the requirements 

established in 44 CFR 206.206. 

The applicant must submit a Request 

for Arbitration to the recipient, CBCA, 

and FEMA. The Request for Arbitration 

must contain a written statement, which 

specifies the amount in dispute, all 

documentation supporting the position 

of the applicant, the disaster number, 

and the name and address of the 

applicant’s authorized representative or 

counsel. FEMA estimates that it will 

take an applicant 2 hours to complete 

the Request for Arbitration (these 2 

hours are accounted for in the economic 

analysis through the 47 hours of hearing 

preparation time for applicants) with a 

wage rate of $86.36 for a general and 

operations manager. FEMA estimates 

the opportunity cost of time for 

completing the request will be $172.72 

per applicant. With an estimated 11 

cases per year, FEMA estimates the total 

burden for completing the request is 

$1,900 per year. The person completing 

the request would need to be familiar 

with PA regulations and policies. 

6. Description of the steps the agency 

has taken to minimize the significant 

economic impact on small entities 

consistent with the stated objectives of 

applicable statutes, including a 

statement of the factual, policy, and 

legal reasons for selecting the 

alternative adopted in the final rule and 

why each of the other significant 

alternatives to the rule considered by 

the agency which affect the impact on 

small entities was rejected. 

The alternatives included: (1) Using 

another definition for ‘‘rural’’ and (2) 

not requiring electronic submission. 

FEMA considered using OMB’s 

nonmetropolitan area definition as an 

alternate definition of the term ‘‘rural.’’ 

OMB’s nonmetropolitan area is defined 

as areas outside the boundaries of 

metropolitan areas and are further 

subdivided into two types: 

1. Micropolitan (micro) areas, which 

are nonmetro labor-market areas 

centered on urban clusters of 10,000– 

49,999 persons and defined with the 

same criteria used to define metro areas. 

2. All remaining counties, often 

labeled ‘‘noncore’’ counties because 

they are not part of ‘‘core-based’’ metro 

or micro areas. 

OMB defines metropolitan areas to 

include: 

1. Central counties with one or more 

urbanized areas; urbanized areas are 

densely-settled urban entities with 

50,000 or more people. 

2. Outlying counties that are 

economically tied to the core counties 

as measured by labor-force commuting. 

Outlying counties are included if 25 

percent of workers living in the county 

commute to the central counties, or if 25 

percent of the employment in the 

county consists of workers coming out 

from the central counties—the so-called 

‘‘reverse’’ commuting pattern. 

FEMA did not recommend using the 

OMB’s definition as it combines rural 

area populations into Metropolitan 

counties. The OMB definition would 

also result in some rural areas, such as 

the Grand Canyon, being considered a 

metropolitan county. This alternative 

would not result in reducing the impact 

on small entities while accomplishing 

the stated objective of the rule. 

FEMA considered not requiring 

electronic submission. Current practices 

allow FEMA to accept physical mail for 

appeals. In addition, FEMA currently 

accepts electronic submissions for 

requests for arbitration under 44 CFR 

206.209. As CBCA provided an 

electronic address for applicants to 

submit their request for arbitration and 

documentation, applicants must use 

electronic method if they choose the 

arbitration process. Thus, electronic 

submission will not pose an additional 

undue burden on applicants that are 

considered small entities. 

Conclusion 

This rule codifies legislative 

requirements included in the DRRA, 

which adds arbitration as a permanent 

alternative to a second appeal under the 

PA Program. Additionally, applicants 

that have had a first appeal pending 

with FEMA for more than 180 calendar 

days may withdraw such appeal and 

submit a request for arbitration. On 

December 18, 2018, FEMA implemented 

section 1219 of DRRA by posting a Fact 

Sheet on its website. On June 21, 2019, 

CBCA published a final rule (see 84 FR 

29085) and FEMA has published a 

corresponding fact sheet. PA arbitration 

has been available for disasters declared 

after January 1, 2016. FEMA certifies 

that this regulation will not have a 

significant economic impact on a 

substantial number of small entities. 

C. Unfunded Mandates Reform Act 

The Unfunded Mandates Reform Act 

of 1995, 2 U.S.C. 658, 1501–1504, 1531– 

1536, 1571 (the Act), pertains to any 

final rulemaking which implements any 


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43Bureau of Labor Statistics, Occupational 

Employment and Wage Statistics. https://

www.bls.gov/oes/. Last accessed: June 10, 2021. 

rule that includes a Federal mandate 

that may result in the expenditure by 

State, local, and Tribal governments, in 

the aggregate, or by the private sector, of 

$100 million (adjusted annually for 

inflation) or more in any one year. If the 

rulemaking includes a Federal mandate, 

the Act requires an agency to prepare an 

assessment of the anticipated costs and 

benefits of the Federal mandate. The Act 

also pertains to any regulatory 

requirements that might significantly or 

uniquely affect small governments. 

Before establishing any such 

requirements, an agency must develop a 

plan allowing for input from the 

affected governments regarding the 

requirements. Exemptions from the Act 

are found at 2 U.S.C. 1503, they include 

any regulation or final regulation that 

‘‘provides for emergency assistance or 

relief at the request of any State, local, 

or tribal government or any official of a 

State, local, or tribal government.’’ 

Thus, FEMA finds this rule to be 

exempt from the Act. 

Additionally, FEMA has determined 

that this rule would not result in the 

expenditure by State, local, and Tribal 

governments, in the aggregate, nor by 

the private sector, of $100 million or 

more (adjusted annually for inflation) in 

any one year because of a Federal 

mandate, and it would not significantly 

or uniquely affect small governments. 

Therefore, no actions are deemed 

necessary under the provisions of the 

Unfunded Mandates Reform Act of 

1995. 

D. Paperwork Reduction Act of 1995 

As required by the Paperwork 

Reduction Act of 1995 (PRA), Public 

Law 104–13, 109 Stat. 163, (May 22, 

1995) (44 U.S.C. 3501 et seq.), an agency 

may not conduct or sponsor, and a 

person is not required to respond to, a 

collection of information unless the 

collection of information displays a 

valid control number. 

This proposed information collection 

previously published in the Federal 

Register on August 31, 2020 at 85 FR 

53725 as part of the NPRM. Since the 

proposed information collection 

published on August 31, 2020, FEMA 

completed an emergency revision of 

information collection 1660–0017. In 

the emergency information collection 

for 1660–0017 FEMA added the FEMA 

Template 104–FY–21–100 Equitable 

COVID–19 Response and Recovery: 

Vaccine Administration Information 

which resulted in 51,016 new Total No. 

of Responses with an .5 Average Burden 

per response of (in hours) which 

resulted in 25,508 Total Annual Burden 

(in hours) totaling $1,445,028 in 

additional Total Annual Respondent 

Cost. Also, FEMA is correcting the wage 

rate used to calculate the Estimated 

Total Annual Respondent Cost in the 

NPRM, which resulted in a decrease of 

the Estimated Total Annual Respondent 

Cost from $29,601,921 to $27,845,344. 

FEMA incorrectly used the wage rate for 

the whole industry, instead of the State 

government industry wage rate. 43

Additionally, the NPRM incorrectly 

listed the proposed decrease to the 

Estimated Total Annual Cost to the 

Federal Government as $29,976, an error 

of $2,498. Rather, the NPRM should 

have listed a proposed decrease of 

$27,478 in arbitration travel costs; as, 

we do not have to include them per the 

PRA exceptions for civil & 

administrative actions. See 44 U.S.C. 

3518(c). Additionally, the Staff Salaries 

changed as the wage rate multiplier 

changed from 1.6 to 1.45. Finally, the 

NPRM incorrectly listed the Estimated 

Total Annual Costs to the Federal 

Government, as $1,890,650, when the 

NPRM should have listed it as 

$1,930,187, due to the previously 

mentioned changes. No comments were 

received regarding the proposed 

information collection. The purpose of 

this section is to notify the public that 

FEMA will submit the information 

collection abstracted below to OMB for 

review and clearance. This final rule 

serves as the 30-day comment period 

pursuant to 5 CFR 1320.12. FEMA 

invites the public to comment on this 

collection of information. 

Collection of Information 

Title: PA Program. 

Type of information collection: 

Revision of a currently approved 

collection. 

OMB Number: 1660–0017. 

Form Forms: FEMA Form 009–0–49 

Request for Public Assistance; FEMA 

Form 009–0–91 Project Worksheet (PW); 

FEMA Form 009–0–91A Project 

Worksheet (PW)—Damage Description 

and Scope of Work; FEMA Form 009– 

0–91B Project Worksheet (PW)—Cost 

Estimate Continuation Sheet; FEMA 

Form 009–0–91C Project Worksheet 

(PW)—Maps and Sketches Sheet; FEMA 

Form 009–0–91D Project Worksheet 

(PW)—Photo Sheet; FEMA Form 009–0– 

120 Special Considerations Questions; 

FEMA Form 009–0–121 PNP Facility 

Questionnaire; FEMA Form 009–0–123 

Force Account Labor Summary Record; 

FEMA Form 009–0–124 Materials 

Summary Record; FEMA Form 009–0– 

125 Rented Equipment Summary 

Record; FEMA Form 009–0–126 

Contract Work Summary Record; FEMA 

Form 009–0–127 Force Account 

Equipment Summary Record; FEMA 

Form 009–0–128 Applicant’s Benefits 

Calculation Worksheet; FEMA Form 

009–0–111, Quarterly Progress Report; 

FEMA Form 009–0–141, FAC–TRAX 

System, FEMA Template 104–FY–21– 

100 Equitable COVID–19 Response and 

Recovery: Vaccine Administration 

Information. 

Abstract: The information collected is 

utilized by FEMA to make 

determinations for PA grants based on 

the information supplied by the 

respondents. 

Affected Public: State, local, or Tribal 

Government. 

Estimated Number of Respondents: 

1,068. 

Estimated Number of Responses: 

449,084. 

Estimated Total Annual Burden 

Hours: 491,533. 

The final regulation would provide 

applicants an additional choice in 

FEMA’s appeals and arbitration 

processes: Applicants must choose 

either submitting a second appeal or 

submitting a request for arbitration. Or, 

an applicant may select arbitration if the 

Regional Administrator has received a 

first appeal but has not rendered a 

decision within 180 calendar days of 

receipt. There is no change to the 

number of responses due to the final 

rule, as applicants can only choose one 

option. The final rule’s implementation 

would not impact the total number of 

responses or burden hours. 

FEMA estimated it will take 

approximately 2 hours to prepare an 

electronic appeal or arbitration. This 

estimate is based on the assumption that 

most of the information necessary for 

preparing the appeal or arbitration 

request is found in the existing Project 

Worksheet. 

Recipients will also provide a 

recommendation per each applicant 

request for an appeal or arbitration. The 

total number of recommendations 

would not change because of the final 

rule. FEMA estimates it will take 

approximately 1 hour to prepare a 

recommendation. 

Currently, the estimated time to 

complete a request and submit a letter 

of recommendation for an appeal is 

three hours. FEMA also estimates the 

time to complete a request and submit 

an electronic recommendation for 

arbitration would also be three hours. 

The applicant could re-use the same 

information from the request for an 

appeal or arbitration and the recipient 

would review similar information in 

providing its recommendation. The final 


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rule would not impact the estimate of 

the burden hours. 

Table 15 provides estimates of 

annualized cost to respondents for the 

hour burdens for the collection of 

information. 

TABLE 15—ESTIMATED ANNUALIZED BURDEN HOURS AND COSTS

Type of respondent Form name/form No. Number of 

respondents 

Number of 

responses 

per 

respondent 

Total 

number of 

responses 

Avg. 

burden per 

response 

(in hours) 

Total 

annual 

burden 

(in hours) 

Avg. 

hourly 

wage rate 

Total 

annual 

respondent 

cost 

State, Local or Tribal Government.FEMA Form 009–0–49, Request for PA 56 129 7,224 0.25 1,806 $56.65 $102,310 

State, Local or Tribal Government.FEMA Form 009–0–91, Project Worksheet (PW) and a Request for Time 

Extension.

56 840 47,040 1.5 70,560 56.65 3,997,224 

State, Local or Tribal Government.FEMA Form 009–0–91A Project Work 

Sheet (PW) Damage Description and 

Scope of Work.

56 784 43,904 1.5 65,856 56.65 3,730,742 

State, Local or Tribal Government.FEMA Form 009–0–91B, Project Worksheet (PW) Cost Estimate Continuation Sheet and Request for additional funding for Cost Overruns.56 784 43,904 1.3333 58,537 56.65 3,316,121 

State, Local or Tribal Government.FEMA Form 009–0–91C Project Worksheet (PW) Maps and Sketches 

Sheet.

56 728 40,768 1.5 61,152 56.65 3,464,261 

State Local or Tribal Government.FEMA Form 009–0–91D Project Worksheet (PW) Photo Sheet.56 728 40,768 1.5 61,152 56.65 3,464,261 

State, Local or Tribal Government.FEMA Form 009–0–120, Special Considerations Questions/.56 840 47,040 0.5 23,520 56.65 1,332,408 

State, Local or Tribal Government.FEMA Form 009–0–128, Applicant’s 

Benefits Calculation Worksheet/.

56 784 43,904 0.5 21,952 56.65 1,243,581 

State, Local or Tribal Government.FEMA Form 009–0–121, PNP Facility 

Questionnaire.

56 94 5,264 0.5 2,632 56.65 149,103 

State, Local or Tribal Government.FEMA Form 009–0–123, Force Account Labor Summary Record.56 94 5,264 0.5 2,632 56.65 149,103 

State, Local or Tribal Government.FEMA Form 009–0–124, Materials 

Summary Record/.

56 94 5,264 0.25 1,316 56.65 74,551 

State, Local or Tribal Government.FEMA Form 009–0–125, Rented 

Equipment Summary Record.

56 94 5,264 0.5 2,632 56.65 149,103 

State, Local or Tribal Government.FEMA Form 009–0–126, Contract 

Work Summary Record/.

56 94 5,264 0.5 2,632 56.65 149,103 

State, Local or Tribal Government.FEMA Form 009–0–127, Force Account Equipment Summary Record/.56 94 5,264 0.25 1,316 56.65 74,551 

State, Local or Tribal Government.State Administrative Plan and State 

Plan Amendments/No Form.

56 1 56 8 448 56.65 25,379 

State, Local or Tribal Government.FEMA Form 009–0–111, Quarterly 

Progress Report.

56 4 224 100 22,400 56.65 1,268,960 

State, Local or Tribal Government.Request for Appeals or Arbitrations & 

Recommendation/No Forms.

56 9 504 3 1,512 56.65 85,655 

State, Local or Tribal Government.Request for Arbitration & Recommendation resulting from Hurricanes Katrina or Rita/No Form.4 5 20 3 60 56.65 3,399 

State, Local or Tribal Government.FEMA Form 009–0–141, FAC–TRAX 

System.

56 913 51,128 1.25 63,910 56.65 3,620,502 

State, Local or Tribal Government.FEMA Template 104–FY–21–100 Equitable COVID–19 Response and Recovery.56 911 51,016 0.5 25,508 56.65 1,445,028 

Total ............... ............................................................... 1,068 .................... 449,084 .................... 491,533 .................... 27,845,344 

Note: The ‘‘Avg. Hourly Wage Rate’’ for each respondent includes a 1.62 multiplier to reflect a fully-loaded wage rate. 

Estimated Total Annual Respondent 

Cost: $27,845,344. 

Estimated Respondents’ Operation 

and Maintenance Costs: N/A. 

Estimated Respondents’ Capital and 

Start-Up Costs: N/A. 

Estimated Total Annual Costs to the 

Federal Government: $1,930,187. 

E. Privacy Act 

Under the Privacy Act of 1974, 5 

U.S.C. 552a, an agency must determine 

whether implementation of a final 

regulation will result in a system of 

records. A ‘‘record’’ is any item, 

collection, or grouping of information 

about an individual that is maintained 

by an agency, including, but not limited 

to, his/her education, financial 

transactions, medical history, and 

criminal or employment history and 

that contains his/her name, or the 

identifying number, symbol, or other 

identifying particular assigned to the 

individual, such as a finger or voice 

print or a photograph. See 5 U.S.C. 

552a(a)(4). A ‘‘system of records’’ is a 

group of records under the control of an 

agency from which information is 

retrieved by the name of the individual 

or by some identifying number, symbol, 

or other identifying particular assigned 

to the individual. An agency cannot 

disclose any record which is contained 

in a system of records except by 

following specific procedures. 

In accordance with DHS policy, 

FEMA has completed a Privacy 

Threshold Analysis (PTA) for this final 

rule. DHS has determined that this final 

rule does not affect the 1660–0017 OMB 

Control Number’s current compliance 

with the E-Government Act of 2002 or 

the Privacy Act of 1974, as amended. As 

a result, DHS has concluded that the 

1660–0017 OMB Control Number is 

covered by the DHS/FEMA/PIA–013 

Grants Management Programs Privacy 

Impact Assessment (PIA). Additionally, 

DHS has decided that the 1660–0017 

OMB Control Number is covered by the 

DHS/FEMA—009 Hazard Mitigation, 


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45682 Federal Register / Vol. 86, No. 155 / Monday, August 16, 2021 / Rules and Regulations 

Disaster Public Assistance, and Disaster 

Loan Programs System of Records, 79 

FR 16015, Mar. 24, 2014 System of 

Records Notice (SORN). 

F. National Environmental Policy Act of 

1969 (NEPA) 

Section 102 of the National 

Environmental Policy Act of 1969 

(NEPA), 83 Stat. 852 (Jan. 1, 1970) (42 

U.S.C. 4321 et seq.) requires Federal 

agencies to consider the impacts of their 

proposed actions on the quality of the 

human environment. Each agency can 

develop categorical exclusions (catexes) 

to cover actions that have been 

demonstrated to not typically trigger 

significant impacts to the human 

environment individually or 

cumulatively. If an action does not 

qualify for a catex and has the potential 

to significantly affect the environment, 

agencies develop environmental 

assessments (EAs) to evaluate those 

actions. The Council on Environmental 

Quality’s procedures for implementing 

NEPA, 40 CFR parts 1500 through 1508, 

require Federal agencies to prepare 

Environmental Impact Statements (EISs) 

for major Federal actions significantly 

affecting the quality of the human 

environment. At the end of the EA 

process, the agency will determine 

whether to make a Finding of No 

Significant Impact or whether to initiate 

the EIS process. 

Rulemaking is a major Federal action 

subject to NEPA. The list of catexes at 

DHS Instruction Manual 023–01–001– 

01 (Revision 01), ‘‘Implementation of 

the National Environmental Policy Act 

(NEPA),’’ Appendix A, includes a catex 

for the promulgation of certain types of 

rules, including rules that implement, 

without substantive change, statutory or 

regulatory requirements and rules that 

interpret or amend an existing 

regulation without changing its 

environmental effect. (Catex A3(b) and 

(d)). 

The purpose of this rule is to finalize 

the proposed regulations to implement 

the new right of arbitration authorized 

by the DRRA, and to revise FEMA’s 

regulations regarding first and second 

PA appeals. Additionally, in response to 

a public comment, FEMA is adding a 

definition of Regional Administrator. 

Plus, FEMA made changes to the 

regulatory text regarding first appeals 

and second appeals at 

206.206(b)(1)(ii)(A) and (b)(2)(ii)(A) as a 

result of the 60-day appeals deadline 

comments. Finally, FEMA is making 

two technical revisions at 206.206(b) 

and 206.206(b)(3)(i)(A) to align the 

regulatory text with the dispute of the 

eligibility for assistance or repayment of 

assistance language of Section 423(d)(1) 

of the Stafford Act. These changes are to 

implement statutory requirements and 

to amend existing regulation without 

changing its environmental effect, 

consistent with Catex A3(b) and (d), as 

defined in DHS Instruction Manual 

023–01–001–01 (Rev. 01), Appendix A. 

No extraordinary circumstances exist 

that will trigger the need to develop an 

EA or EIS. See DHS Instruction Manual 

023–01–001–01 V(B)(2). 

G. Executive Order 13175, Consultation 

and Coordination With Indian Tribal 

Governments 

Executive Order 13175, ‘‘Consultation 

and Coordination With Indian Tribal 

Governments,’’ 65 FR 67249, Nov. 9, 

2000, applies to agency regulations that 

have Tribal implications, that is, 

regulations that have substantial direct 

effects on one or more Indian tribes, on 

the relationship between the Federal 

Government and Indian Tribes, or on 

the distribution of power and 

responsibilities between the Federal 

Government and Indian Tribes. Under 

this Executive Order, to the extent 

practicable and permitted by law, no 

agency will promulgate any regulation 

that has Tribal implications, that 

imposes substantial direct compliance 

costs on Indian Tribal governments, and 

that is not required by statute, unless 

funds necessary to pay the direct costs 

incurred by the Indian Tribal 

government or the Tribe in complying 

with the regulation are provided by the 

Federal Government, or the agency 

consults with Tribal officials. 

The purpose of this rule is to finalize 

the proposed regulations to implement 

the new right of arbitration authorized 

by the DRRA, and to revise FEMA’s 

regulations regarding first and second 

PA appeals. Additionally, in response to 

a public comment, FEMA is adding a 

definition of Regional Administrator. 

Plus, FEMA made changes to the 

regulatory text regarding first appeals 

and second appeals at 

206.206(b)(1)(ii)(A) and (b)(2)(ii)(A) as a 

result of the 60-day appeals deadline 

comments. Finally, FEMA is making 

two technical revisions at 206.206(b) 

and 206.206(b)(3)(i)(A) to align the 

regulatory text with the dispute of the 

eligibility for assistance or repayment of 

assistance language of Section 423(d)(1) 

of the Stafford Act. 

Under the final rule, Indian Tribal 

Governments have the same opportunity 

to participate in arbitrations as other 

eligible applicants; however, given the 

participation criteria required under 42 

U.S.C. 5189a(d) and its voluntary 

nature, FEMA anticipates a very small 

number, if any Indian Tribal 

Governments, will participate in the 

new permanent right of arbitration. 

FEMA also anticipates a very small 

number of Indian Tribal Governments 

will be affected by the other major 

revisions to 44 CFR 206.206. As a result, 

FEMA does not expect this final rule to 

have a substantial direct effect on one or 

more Indian Tribal Governments or 

impose direct compliance costs on 

Indian Tribal Governments. 

Additionally, since FEMA anticipates a 

very small number, if any Indian Tribal 

Governments will participate in the 

arbitration portion of the final rule nor 

will be affected by the rest of the 

finalized revisions to 44 CFR 206.206, 

FEMA does not expect the regulations to 

have substantial direct effects on the 

relationship between the Federal 

Government and Indian Tribal 

Governments or on the distribution of 

power and responsibilities between the 

Federal Government and Indian Tribal 

Governments. 

H. Executive Order 13132, Federalism 

A rule has implications for federalism 

under Executive Order 13132 

‘‘Federalism’’ (64 FR 43255, Aug. 10, 

1999), if it has a substantial direct effect 

on the States, on the relationship 

between the national government and 

the States, or on the distribution of 

power and responsibilities among the 

various levels of government. FEMA has 

analyzed this final rule under Executive 

Order 13132 and determined that it does 

not have implications for federalism. 

I. Executive Order 12630, Taking of 

Private Property 

This rule will not effect a taking of 

private property or otherwise have 

taking implications under Executive 

Order 12630, ‘‘Governmental Actions 

and Interference With Constitutionally 

Protected Property Rights’’ (53 FR 8859, 

Mar. 18, 1988). 

J. Executive Order 12898, 

Environmental Justice 

Executive Order 12898 ‘‘Federal 

Actions To Address Environmental 

Justice in Minority Populations and 

Low-Income Populations’’ (59 FR 7629, 

Feb. 16, 1994), as amended by Executive 

Order 12948 (60 FR 6381, Feb. 1, 1995) 

mandates that Federal agencies identify 

and address, as appropriate, 

disproportionately high and adverse 

human health or environmental effects 

of their programs, policies, and 

activities on minority and low-income 

populations. It requires each Federal 

agency to conduct its programs, 

policies, and activities that substantially 

affect human health or the environment 

in a manner that ensures that those 

programs, policies, and activities do not 


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have the effect of excluding persons 

from participation in, denying persons 

the benefit of, or subjecting persons to 

discrimination because of their race, 

color, or national origin or income level. 

The purpose of this rule is to finalize 

the proposed regulations to implement 

the new right of arbitration authorized 

by the DRRA, and to revise FEMA’s 

regulations regarding first and second 

PA appeals. Additionally, in response to 

a public comment, FEMA is adding a 

definition of Regional Administrator. 

Plus, FEMA made changes to the 

regulatory text regarding first appeals 

and second appeals at 

206.206(b)(1)(ii)(A) and (b)(2)(ii)(A) as a 

result of the 60-day appeals deadline 

comments. Finally, FEMA is making 

two technical revisions at 206.206(b) 

and 206.206(b)(3)(i)(A) to align the 

regulatory text with the dispute of the 

eligibility for assistance or repayment of 

assistance language of Section 423(d)(1) 

of the Stafford Act. There are no adverse 

effects and no disproportionate effects 

on minority or low-income populations. 

K. Executive Order 12988, Civil Justice 

Reform 

This final rule meets applicable 

standards in Sections 3(a) and 3(b)(2) of 

Executive Order 12988, ‘‘Civil Justice 

Reform’’ (61 FR 4729, Feb. 7, 1996), to 

minimize litigation, eliminate 

ambiguity, and reduce burden. 

L. Executive Order 13045, Protection of 

Children From Environmental Health 

Risks and Safety Risks 

This final rule will not create 

environmental health risks or safety 

risks for children under Executive Order 

13045, ‘‘Protection of Children From 

Environmental Health Risks and Safety 

Risks’’ (62 FR 19885, Apr. 23, 1997). 

M. Congressional Review of Agency 

Rulemaking 

Under the Congressional Review of 

Agency Rulemaking Act (CRA), 5 U.S.C. 

801–808, before a rule can take effect, 

the Federal agency promulgating the 

rule must submit to Congress and to the 

Government Accountability Office 

(GAO) a copy of the rule; a concise 

general statement relating to the rule, 

including whether it is a major rule; the 

proposed effective date of the rule; a 

copy of any cost-benefit analysis; 

descriptions of the agency’s actions 

under the Regulatory Flexibility Act and 

the Unfunded Mandates Reform Act; 

and any other information or statements 

required by relevant executive orders. 

FEMA has submitted this final rule to 

the Congress and to GAO pursuant to 

the CRA. OMB has determined that this 

rule is not a ‘‘major rule’’ within the 

meaning of the CRA. 

List of Subjects in 44 CFR Part 206 

Administrative practice and 

procedure, Coastal zone, Community 

facilities, Disaster assistance, Fire 

prevention, Grant programs—housing 

and community development, Housing, 

Insurance, Intergovernmental relations, 

Loan programs—housing and 

community development, Natural 

resources, Penalties, Reporting and 

recordkeeping requirements. 

For the reasons stated in the 

preamble, the Federal Emergency 

Management Agency amends 44 CFR 

part 206 as follows: 

PART 206—FEDERAL DISASTER 

ASSISTANCE 

■ 1. The authority citation for part 206 

continues to read as follows: 

Authority: Robert T. Stafford Disaster 

Relief and Emergency Assistance Act, 42 

U.S.C. 5121 through 5207; Homeland 

Security Act of 2002, 6 U.S.C. 101 et seq.; 

Department of Homeland Security Delegation 

9001.1. 

■ 2. Revise § 206.206 to read as follows: 

§ 206.206 Appeals and arbitrations. 

(a) Definitions. The following 

definitions apply to this section: 

Administrator means the 

Administrator of the Federal Emergency 

Management Agency. 

Amount in dispute means the 

difference between the amount of 

financial assistance sought for a Public 

Assistance project and the amount of 

financial assistance for which FEMA 

has determined such Public Assistance 

project is eligible. 

Applicant has the same meaning as 

the definition at § 206.201(a). 

Final agency determination means: 

(1) The decision of FEMA, if the 

applicant or recipient does not submit a 

first appeal within the time limits 

provided for in paragraph (b)(1)(ii)(A) of 

this section; or 

(2) The decision of FEMA, if the 

applicant or recipient withdraws the 

pending appeal and does not file a 

request for arbitration within 30 

calendar days of the withdrawal of the 

pending appeal; or 

(3) The decision of the FEMA 

Regional Administrator, if the applicant 

or recipient does not submit a second 

appeal within the time limits provided 

for in paragraph (b)(2)(ii)(A) of this 

section. 

Recipient has the same meaning as the 

definition at § 206.201(m). 

Regional Administrator means an 

administrator of a regional office of 

FEMA, or his/her designated 

representative. 

Rural area means an area with a 

population of less than 200,000 outside 

an urbanized area. 

Urbanized area means an area that 

consists of densely settled territory that 

contains 50,000 or more people. 

(b) Appeals and Arbitrations. An 

eligible applicant or recipient may 

appeal any determination previously 

made related to an application for or the 

provision of Public Assistance 

according to the procedures of this 

section. An eligible applicant may 

request arbitration to dispute the 

eligibility for assistance or repayment of 

assistance. 

(1) First Appeal. The applicant must 

make a first appeal in writing and 

submit it electronically through the 

recipient to the Regional Administrator. 

The recipient must include a written 

recommendation on the applicant’s 

appeal with the electronic submission of 

the applicant’s first appeal to the 

Regional Administrator. The recipient 

may make recipient-related appeals to 

the Regional Administrator. 

(i) Content. A first appeal must: 

(A) Contain all documented 

justification supporting the applicant or 

recipient’s position; 

(B) Specify the amount in dispute, as 

applicable; and 

(C) Specify the provisions in Federal 

law, regulation, or policy with which 

the applicant or recipient believes the 

FEMA determination was inconsistent. 

(ii) Time Limits. (A) The applicant 

may make a first appeal through the 

recipient within 60 calendar days from 

the date of the FEMA determination that 

is the subject of the appeal and the 

recipient must electronically forward to 

the Regional Administrator the 

applicant’s first appeal with a 

recommendation within 120 calendar 

days from the date of the FEMA 

determination that is the subject of the 

appeal. If the applicant or the recipient 

do not meet their respective 60-calendar 

day and 120-calendar day deadlines, 

FEMA will deny the appeal. A recipient 

may make a recipient-related first 

appeal within 60 calendar days from the 

date of the FEMA determination that is 

the subject of the appeal and must 

electronically submit their first appeal 

to the Regional Administrator. 

(B) Within 90 calendar days following 

receipt of a first appeal, if there is a need 

for additional information, the Regional 

Administrator will provide electronic 

notice to the recipient and applicant. If 

there is no need for additional 

information, then FEMA will not 

provide notification. The Regional 

Administrator will generally allow the 


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recipient 30 calendar days to provide 

any additional information. 

(C) The Regional Administrator will 

provide electronic notice of the 

disposition of the appeal to the 

applicant and recipient within 90 

calendar days of receipt of the appeal or 

within 90 calendar days following the 

receipt of additional information or 

following expiration of the period for 

providing the information. 

(iii) Technical Advice. In appeals 

involving highly technical issues, the 

Regional Administrator 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 

calendar days of receipt of the report, 

the Regional Administrator will provide 

electronic notice of the disposition of 

the appeal to the recipient and 

applicant. 

(iv) Effect of an Appeal. (A) FEMA 

will take no action to implement any 

determination pending an appeal 

decision from the Regional 

Administrator, subject to the exceptions 

in paragraph (b)(1)(iv)(B) of this section. 

(B) Notwithstanding paragraph 

(b)(1)(iv)(A) of this section, FEMA may: 

(1) Suspend funding (see 2 CFR 

200.339); 

(2) Defer or disallow other claims 

questioned for reasons also disputed in 

the pending appeal; or 

(3) Take other action to recover, 

withhold, or offset funds if specifically 

authorized by statute or regulation. 

(v) Implementation. If the Regional 

Administrator grants an appeal, the 

Regional Administrator will take 

appropriate implementing action(s). 

(vi) Guidance. FEMA may issue 

separate guidance as necessary to 

supplement paragraph (b)(1) of this 

section. 

(2) Second Appeal. If the Regional 

Administrator denies a first appeal in 

whole or in part, the applicant may 

make a second appeal in writing and 

submit it electronically through the 

recipient to the Assistant Administrator 

for the Recovery Directorate. The 

recipient must include a written 

recommendation on the applicant’s 

appeal with the electronic submission of 

the applicant’s second appeal to the 

Assistant Administrator for the 

Recovery Directorate. The recipient may 

make recipient-related second appeals 

to the Assistant Administrator for the 

Recovery Directorate. 

(i) Content. A second appeal must: 

(A) Contain all documented 

justification supporting the applicant or 

recipient’s position; 

(B) Specify the amount in dispute, as 

applicable; and 

(C) Specify the provisions in Federal 

law, regulation, or policy with which 

the applicant or recipient believes the 

FEMA determination was inconsistent. 

(ii) Time Limits. (A) If the Regional 

Administrator denies a first appeal in 

whole or in part, the applicant may 

make a second appeal through the 

recipient within 60 calendar days from 

the date of the Regional Administrator’s 

first appeal decision and the recipient 

must electronically forward to the 

Assistant Administrator for the 

Recovery Directorate the applicant’s 

second appeal with a recommendation 

within 120 calendar days from the date 

of the Regional Administrator’s first 

appeal decision. If the applicant or the 

recipient do not meet their respective 

60-calendar day and 120-calendar day 

deadlines, FEMA will deny the appeal. 

If the Regional Administrator denies a 

recipient-related first appeal in whole or 

in part, the recipient may make a 

recipient-related second appeal within 

60 calendar days from the date of the 

Regional Administrator’s first appeal 

decision and the recipient must 

electronically submit their second 

appeal to the Assistant Administrator 

for the Recovery Directorate. 

(B) Within 90 calendar days following 

receipt of a second appeal, if there is a 

need for additional information, the 

Assistant Administrator for the 

Recovery Directorate will provide 

electronic notice to the recipient and 

applicant. If there is no need for 

additional information, then FEMA will 

not provide notification. The Assistant 

Administrator for the Recovery 

Directorate will generally allow the 

recipient 30 calendar days to provide 

any additional information. 

(C) The Assistant Administrator for 

the Recovery Directorate will provide 

electronic notice of the disposition of 

the appeal to the recipient and applicant 

within 90 calendar days of receipt of the 

appeal or within 90 calendar days 

following the receipt of additional 

information or following expiration of 

the period for providing the 

information. 

(iii) Technical Advice. In appeals 

involving highly technical issues, the 

Assistant Administrator for the 

Recovery Directorate 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 

calendar days of receipt of the report, 

the Assistant Administrator for the 

Recovery Directorate will provide 

electronic notice of the disposition of 

the appeal to the recipient and 

applicant. 

(iv) Effect of an Appeal. (A) FEMA 

will take no action to implement any 

determination pending an appeal 

decision from the Assistant 

Administrator for the Recovery 

Directorate, subject to the exceptions in 

paragraph (b)(2)(iv)(B) of this section. 

(B) Notwithstanding paragraph 

(b)(2)(iv)(A) of this section, FEMA may: 

(1) Suspend funding (see 2 CFR 

200.339); 

(2) Defer or disallow other claims 

questioned for reasons also disputed in 

the pending appeal; or 

(3) Take other action to recover, 

withhold, or offset funds if specifically 

authorized by statute or regulation. 

(v) Implementation. If the Assistant 

Administrator for the Recovery 

Directorate grants an appeal, the 

Assistant Administrator for the 

Recovery Directorate will direct the 

Regional Administrator to take 

appropriate implementing action(s). 

(vi) Guidance. FEMA may issue 

separate guidance as necessary to 

supplement paragraph (b)(2) of this 

section. 

(3) Arbitration. (i) Applicability. An 

applicant may request arbitration from 

the Civilian Board of Contract Appeals 

(CBCA) if: 

(A) There is a dispute of the eligibility 

for assistance or of the repayment of 

assistance arising from a major disaster 

declared on or after January 1, 2016; and 

(B) The amount in dispute is greater 

than $500,000, or greater than $100,000 

for an applicant for assistance in a rural 

area; and 

(C) The Regional Administrator has 

denied a first appeal decision or 

received a first appeal but not rendered 

a decision within 180 calendar days of 

receipt. 

(ii) Limitations. A request for 

arbitration is in lieu of a second appeal. 

(iii) Request for Arbitration. (A) An 

applicant may initiate arbitration by 

submitting an electronic request 

simultaneously to the recipient, the 

CBCA, and FEMA. See 48 CFR part 

6106. 

(B) Time Limits. (1) An applicant 

must submit a request for arbitration 

within 60 calendar days from the date 

of the Regional Administrator’s first 

appeal decision; or 

(2) If the first appeal was timely 

submitted, and the Regional 

Administrator has not rendered a 

decision within 180 calendar days of 


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Federal Register / Vol. 86, No. 155 / Monday, August 16, 2021 / Rules and Regulations 45685 

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. 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. 

(C) Content of request. The 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 applicant’s authorized 

representative or counsel. 

(iv) Expenses. Expenses for each party 

will be paid by the party who incurred 

the expense. 

(v) Guidance. FEMA may issue 

separate guidance as necessary to 

supplement paragraph (b)(3) of this 

section. 

(c) Finality of decision. (1) A FEMA 

final agency determination or a decision 

of the Assistant Administrator for the 

Recovery Directorate on a second appeal 

constitutes a final decision of FEMA. 

Final decisions are not subject to further 

administrative review. 

(2) In the alternative, a decision of the 

majority of the CBCA panel constitutes 

a final decision, binding on all parties. 

See 48 CFR 6106.613. Final decisions 

are not subject to further administrative 

review. 

Deanne B. Criswell, 

Administrator, Federal Emergency 

Management Agency. 

[FR Doc. 2021–17213 Filed 8–13–21; 8:45 am] 

BILLING CODE 9111–19–P 

DEPARTMENT OF THE INTERIOR 

Fish and Wildlife Service 

50 CFR Part 17 

[Docket No. FWS–R4–ES–2019–0080; 

FXES11130900000–212–FF09E22000] 

RIN 1018–BD82 

Endangered and Threatened Wildlife 

and Plants; Removing Arenaria 

cumberlandensis (Cumberland 

Sandwort) From the Federal List of 

Endangered and Threatened Plants 

AGENCY: Fish and Wildlife Service, 

Interior. 

ACTION: Final rule. 

SUMMARY: We, the U.S. Fish and 

Wildlife Service (Service), are removing 

Cumberland sandwort (Arenaria 

cumberlandensis) from the Federal List 

of Endangered and Threatened Plants 

(List). This determination is based on a 

thorough review of the best available 

scientific and commercial data, which 

indicate that Cumberland sandwort has 

recovered and no longer meets the 

definition of an endangered or a 

threatened species under the 

Endangered Species Act of 1973, as 

amended (Act). Our review shows that 

threats to the species identified at the 

time of listing (i.e., timber harvesting, 

trampling from recreational uses, and 

digging for archaeological artifacts) have 

been reduced to the point that they no 

longer pose a threat to the species, and 

the known range and abundance of 

Cumberland sandwort have increased. 

Our review also indicates that potential 

effects of projected climate change are 

not expected to cause the species to 

become endangered in the foreseeable 

future. Accordingly, the prohibitions 

and conservation measures provided by 

the Act will no longer apply to this 

species. 

DATES: This rule is effective September 

15, 2021. 

ADDRESSES: The proposed rule and this 

final rule, supporting documents, the 

post-delisting monitoring plan, and the 

comments received on the proposed 

rule are available at http://

www.regulations.gov under Docket No. 

FWS–R4–ES–2019–0080. 

FOR FURTHER INFORMATION CONTACT: 

Daniel Elbert, Field Supervisor, U.S. 

Fish and Wildlife Service, Tennessee 

Ecological Services Field Office, 446 

Neal Street, Cookeville, TN 38501; 

telephone (931) 528–6481. Individuals 

who use a telecommunications device 

for the deaf (TDD), may call the Federal 

Relay Service at (800) 877–8339. 

SUPPLEMENTARY INFORMATION: 

Executive Summary 

Why we need to publish a rule. Under 

the Act, a species may be removed from 

the Federal List of Endangered and 

Threatened Plants (List) (‘‘delisted’’) if it 

is determined that the species has 

recovered and no longer meets the 

definition of an endangered or 

threatened species. Removing a species 

from the List can only be completed by 

issuing a rule. 

What this document does. This rule 

delists Cumberland sandwort from the 

Federal List of Endangered and 

Threatened Plants based on the species’ 

recovery. 

The basis for our action. Under the 

Act, we may determine that a species is 

an endangered or threatened species 

because of one or more of the five 

factors described in section 4(a)(1) of the 

Act: (A) The present or threatened 

destruction, modification, or 

curtailment of its habitat or range; (B) 

overutilization for commercial, 

recreational, scientific, or educational 

purposes; (C) disease or predation; (D) 

the inadequacy of existing regulatory 

mechanisms; or (E) other natural or 

manmade factors affecting its continued 

existence. We must consider these same 

factors in delisting a species. 

We have determined that Cumberland 

sandwort is not in danger of extinction 

now nor likely to become so in the 

foreseeable future based on a 

comprehensive review of its status and 

listing factors. Specifically, our recent 

review indicated: (1) An increase in the 

known number of occurrences of the 

species within its geographically 

restricted range, and increased 

abundance in some occurrences; (2) 

resiliency to existing and potential 

threats; (3) the protection of 66 extant 

occurrences located on Federal and 

State conservation lands by regulations 

or management plans to prevent habitat 

destruction or removal of plants; and (4) 

the implementation of beneficial 

management practices. Accordingly, 

Cumberland sandwort no longer meets 

the definition of an endangered or 

threatened species under the Act. 

Peer review and public comment. In 

accordance with our joint policy on peer 

review published in the Federal 

Register on July 1, 1994 (59 FR 34270), 

and our August 22, 2016, memorandum 

updating and clarifying the role of peer 

review of listing actions under the Act, 

we sought peer review of our April 27, 

2020, proposed rule to delist the species 

(85 FR 23302). The Service sent the 

proposed rule to five independent peer 

reviewers and received three responses. 

The purpose of peer review is to ensure 

that our determination is based on 

scientifically sound data, assumptions, 

and analyses. The peer reviewers have 

expertise in the biology, habitat, and 

threats to the species. 

Previous Federal Actions 

On April 27, 2020, we published in 

the Federal Register (85 FR 23302) a 

proposed rule to remove Cumberland 

sandwort from the Federal List of 

Endangered and Threatened Plants (i.e., 

to delist the species). Please refer to that 

proposed rule for a detailed description 

of previous Federal actions concerning 

this species. The proposed rule and 

supplemental documents are provided 

at http://www.regulations.gov under 

Docket No. FWS–R4–ES–2019–0080. 


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