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

Federal RegisterNov 24, 1997

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FEDERAL EMERGENCY MANAGEMENT AGENCY

44 CFR Part 206

RIN 3067-AC67

Disaster Assistance; Public Assistance Program Appeals; Hazard

Mitigation Grant Program Appeals

AGENCY: Federal Emergency Management Agency (FEMA).

ACTION: Proposed rule.

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SUMMARY: This proposed rule would change the procedure for the review

and disposition of appeals related to Public Assistance grants and the

Hazard Mitigation Grant Program (HMGP). The rule would reduce from

three to one the number of appeals allowed, would reduce delays in

final resolution of appeals, and would make new provisions for

reimbursing administrative costs for preparing and processing appeals.

DATES: We invite your comments on this proposed rule, which may be

submitted on or before January 23, 1998.

ADDRESSES: Please send any comments to the Rules Docket Clerk, Office

of the General Counsel, Federal Emergency Management Agency, 500 C

Street SW., room 840, Washington, DC 20472, (facsimile) (202) 646-4536.

FOR FURTHER INFORMATION CONTACT: Regarding HMGP appeals, Robert F.

Shea, Mitigation Directorate, Federal Emergency Management Agency, 500

C Street, SW., Washington, DC 20472, (202) 646-3619, (facsimile) (202)

646-3104; regarding Public Assistance appeals, Melissa M. Howard,

Response and Recovery Directorate, Federal Emergency Management Agency,

500 C Street, SW., Washington, DC 20472, (202) 646-3053, facsimile

(202) 646-3304.

SUPPLEMENTARY INFORMATION: Under section 423 of the Robert T. Stafford

Disaster Relief and Emergency Assistance Act (Stafford Act), 42 U.S.C.

5189a, any decision regarding eligibility or amount of assistance may

be appealed. Currently FEMA allows three appeal levels, respectively,

to the Regional Director, the Associate Director, and to the Director.

This proposed rule would reduce from three to one the number of

appeals allowed to be taken by an applicant. The authority for appeal

decisions will rest with the Regional Director, who will consult with

FEMA Headquarters on all potential appeal denials when the amount in

question is $1,000,000 or more in Federal funds.

This proposed change would support FEMA policy that the Regional

Director is responsible for final decisions on all Public Assistance

and HMGP funding. The Regional Director's appeal determination would be

the Agency's final position on the matter.

The intent of this change is to reduce the significant amount of

time and associated costs incurred by FEMA, grantees, and subgrantees

to resolve appeal issues. Given the timeframes allowed, the current

process can take up

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to two years to make a final decision by the Director of the Agency.

This proposed change would provide applicants with a final resolution

sooner than previously. All provisions for fair and impartial

consideration required by the Stafford Act would be maintained.

The rule would be effective for all appeals made on or after the

effective date of the rule. Appeals pending from a decision of a

Regional Director or an Associate Director/ Executive Associate

Director before the effective date of the rule may be appealed to the

next higher appeal level in accordance with Sec. Sec. 202.206 and

206.440 as they existed before the effective date of this rule. The

decision of the FEMA official at the next higher appeal level would be

final. For example, if a Regional Director had not +made a decision on

an appeal pending before the effective date of the rule the appeal

would be decided in accordance with the new rule, and the decision of

the Regional Director would be final. If a Regional Director had made a

decision before the effective date of the rule, the decision could be

appealed to the Associate Director or Executive Associate Director,

whose decision would be final. If the appeal had been decided at the

Associate Director level, the decision could be appealed to the

Director, whose decision would be final.

The proposed rule also provides that grantees and subgrantees would

be responsible for separately tracking and accounting for all costs

associated with preparing and processing appeals. FEMA would reimburse

grantees' and subgrantees' administrative costs for preparing and

processing appeals only when an appeal is decided in favor of the

applicant. This change is proposed in the interest of responsible use

of tax dollars, and in the face of an increasing number of appeals that

have been identified as frivolous or without merit.

This proposed rule supersedes the proposed Public Assistance appeal

procedure published on October 24, 1996, 61 FR 55122-55123.

National Environmental Policy Act

This proposed rule is categorically excluded from the preparation

of environmental impact statements and environmental assessments as an

administrative action in support of normal day-to-day grant activities.

No environmental impact statement or environmental assessment has been

prepared.

Executive Order 12866, Regulatory Planning and Review

This proposed rule is not a significant regulatory action within

the meaning of Sec. 2(f) of E.O. 12866 of September 30, 1993, 58 FR

51735, but attempts to adhere to the regulatory principles set forth in

E.O. 12866. The rule has not been reviewed by the Office of Management

and Budget under E.O. 12866.

Paperwork Reduction Act

This proposed rule does not involve any collection of information

for the purposes of the Paperwork Reduction Act.

Regulatory Flexibility Act

The Director certifies that this proposed rule will not, if

promulgated, have a significant economic impact on a substantial number

of small entities. The rule would reduce the number of appeals that an

entity might make and is expected to reduce administrative burden and

compliance requirements associated with appeals. A regulatory

flexibility analysis has not been prepared.

Executive Order 12612, Federalism

This proposed rule involves no policies that have federalism

implications under E.O. 12612, Federalism, dated October 26, 1987.

Executive Order 12778, Civil Justice Reform

This proposed rule complies with applicable standards of

Sec. 2(b)(2) of E.O. 12778.

List of Subjects in 44 CFR Part 206

Administrative practice and procedure, Disaster assistance.

Accordingly, 44 CFR part 206 is proposed to be amended as follows:

1. The authority citation for part 206 continues to read as

follows:

Authority: The Robert T. Stafford Disaster Relief and Emergency

Assistance Act, 42 U.S.C. 5121 et seq.; Reorganization Plan No. 3 of

1978, 43 FR 41943, 3 CFR, 1978 Comp., p. 329; E.O. 12127, 44 FR

19367, 3 CFR, 1979 Comp., p.376; E.O. 12148, 44 FR 43239, 3 CFR,

1979 Comp., p. 412; and E.O. 12673, 54 FR 12571, 3 CFR, 1989 Comp.,

p. 214.

2. Section 206.206 is revised to read as follows:

Sec. 206.206 Appeals.

An eligible applicant, subgrantee, or grantee may appeal any

determination previously made related to an application for or the

provision of Federal assistance according to the following procedures.

(a) Format and Content. The applicant or subgrantee will make the

appeal to the Regional Director, in writing, through the grantee. The

grantee shall review and evaluate all subgrantee appeals before

submission to the Regional Director. The grantee may make grantee-

related appeals to the Regional Director. The appeal shall contain

documented justification supporting the appellant's position,

specifying the monetary figure in dispute and the provisions in Federal

law, regulation, or policy with which the appellant believes the

initial action was inconsistent.

(b) Levels of Appeal. The Regional Director is the deciding

official on all appeals. The Regional Director will consult with FEMA

Headquarters during the review of all potential appeal denials when the

amount in question is $1,000,000 or more in Federal funds.

after receipt of a notice of the action that is being appealed.

(2) The grantee will review and forward appeals from an applicant

or subgrantee, with a written recommendation, to the Regional Director

within 60 days of receipt.

(3) Within 90 days following receipt of an appeal, the Regional

Director will notify the grantee in writing as to the disposition of

the appeal or of the need for additional information. A request by the

Regional Director for additional information will include a date by

which the information must be provided. Within 90 days following the

receipt of requested additional information or the expiration of the

period for providing the information, the Regional Director will notify

the grantee in writing of the disposition of the appeal. If the

decision is to grant the appeal, the Regional Director will take

appropriate implementing action.

(d) Technical Advice. In appeals involving highly technical issues,

the Regional Director may, at his or her discretion, submit the appeal

to an independent scientific or technical person or group having

expertise in the subject matter of the appeal for advice or

recommendation. The period for this technical review may be in addition

to other allotted time periods. Within 90 days of receipt of the

report, the Regional Director will notify the grantee in writing of the

disposition of the appeal.

(e) Administrative costs of appeal. Grantees and subgrantees must

track and account for all costs associated with preparing and

processing appeals. FEMA will not reimburse grantees' and subgrantees'

administrative costs for preparing and processing appeals that are not

decided in favor of the applicant.

(f) Transition. (1) This rule is effective for all appeals filed on

or after [30 days

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after date of publication of final rule in the Federal Register].

(2) Appeals pending from a decision of a Regional Director or an

Associate Director/Executive Associate Director before [the effective

date of the final rule] may be appealed to the next higher appeal level

in accordance with 44 CFR 206.206 as it existed before [the effective

date of the final rule]. The decision of the FEMA official at the next

higher appeal level shall be final.

3. Section 206.440 is revised to read as follows:

Sec. 206.440 Appeals.