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Second Appeal Letter
PA ID# 000-U03E9-00; Florida Department of Transportation
PW ID# Multiple Project Worksheets; Uncollected Toll Road Revenue
April 11, 2008
W. Craig Fugate
Florida Division of Emergency Management
36 Skyline Drive
Lake Mary, Florida 32746
Re: Second Appeal–Florida Department of Transportation, PA ID 000-U03E9-00, Uncollected Toll Road Revenue, Multiple Project Worksheets
Dear Mr. Fugate:
This is in response to your letters dated January 14, 2008, which transmitted the referenced second appeal on behalf of the Florida Department of Transportation (Applicant). The Applicant is appealing the Department of Homeland Security’s Federal Emergency Management Agency’s (FEMA) denial of multiple Project Worksheets (PWs) for funding for uncollected toll revenue.
Toll collection operations on the Florida Turnpike were suspended during mass evacuations pursuant to the Governor’s orders of a State of Emergency for seven separate disasters and one emergency declaration in 2004 and 2005. The Applicant seeks to recover a total of $51,309,400, for uncollected toll road revenue. FEMA denied this funding because loss of revenue is not an eligible cost under the Public Assistance Program. The appealed PWs and amounts are:
Disaster Project Worksheet Amount Appealed
FEMA-1539-DR-FL (Charley) 7205 $3,071,400.00
FEMA-1545-DR-FL (Frances) 9428 $14,446,700.00
FEMA-1551-DR-FL (Ivan) 3797 $7,838,500.00
FEMA-1561-DR-FL (Jeanne) 6453 $6,853,600.00
FEMA-1595-DR-FL (Dennis) 1602 $464,300.00
FEMA-1602-DR-FL (Katrina) 1472 $1,758,500.00
FEMA-1609-DR-FL (Wilma) 9213 $155,421,600.00
FEMA-3259-EM-FL (Rita) 150 $1,454,800.00
In a letter dated June 15, 2007, the Applicant submitted its first appeal, which stated that the mass evacuations were mandated by the Governor as part of the State’s emergency protective measures with specific directives “to open the highway toll lanes to allow for the free flow of traffic” in order to evacuate residents and to allow for “residents to be rescued from the imminent threat created by the approaching hurricane(s).” The basis of the first appeal was that the toll roads functioned as an emergency facility and as such, uncollected tolls were not lost revenue, but rather an expense eligible under emergency protective measures. The Applicant provided a copy of the Governor’s executive order for each incident, a copy of Appendix I and III from the Florida Comprehensive Emergency Management Plan 2004, a traffic and revenue impact calculation statement, citations from 44 CFR §206.225–Emergency Work, 44 CFR §206.221– Definitions, FEMA’s Public Assistance Guide 322 (October 1999)–Category B Emergency Protective Measures to support its appeal. FEMA determined that uncollected tolls were not costs incurred in the performance of an eligible emergency protective measure, such as overtime labor or equipment and material expenses, but rather were revenue that the Applicant would have collected under normal business operations.
The Applicant submitted its second appeal in a letter dated December 20, 2007. The Applicant asserts that current Public Assistance policy, as it pertains to lost revenue (toll roads), should not be applied retroactively to the 2004 and 2005 disasters because that policy was not in force at the time of the disasters. As in the first appeal, the Applicant reiterated that the toll roads functioned as an emergency facility and as such, uncollected tolls were not lost revenue, but rather an expense eligible under emergency protective measures.
I have reviewed the information submitted with the appeal and have determined that toll revenue is not an eligible reimbursable cost under emergency protective measures and that loss of revenue is not an eligible cost authorized by the Robert T. Stafford Disaster Relief and Emergency Assistance. Therefore, I am denying the second appeal.
Please inform the Applicant of my decision. My determination constitutes the final decision on this matter as set forth in 44 CFR §206.206.
Carlos J. Castillo
Disaster Assistance Directorate
cc: Major May
FEMA Region IV