Appeal Brief | Appeal Letter | Back
Second Appeal Letter
PA ID# 071-U8M7N-00; Housing Authority of New Orleans
PW ID# Project Worksheet; Permanent Repairs
September 29, 2008
Colonel Thomas Kirkpatrick (Retired)
State Coordinating Officer
Governors Office of Homeland Security
and Emergency Preparedness
415 North 15th Street
Baton Rouge, LA 70802
Re: Second AppealHousing Authority of New Orleans, PA ID 071-U8M7N-00Permanent repairs
, FEMA-1603-DR-LA, Project Worksheet (PW) 11743
Dear Colonel Kirkpatrick:
This is in response to a letter from your office dated May 27, 2008, which transmitted the referenced second appeal on behalf of the Housing Authority of New Orleans (Applicant). The Applicant is appealing the Department of Homeland Securitys Federal Emergency Management Agencys (FEMA) decision to deny reimbursement for the cost of appliances and building materials purchased as a result of Hurricane Katrina.
FEMA prepared PW 11743 for $98,768 for the costs incurred to procure building materials for the permanent repairs of buildings damaged by Hurricane Katrina and for costs incurred to replace damaged appliances. FEMA determined these costs ineligible for Public Assistance funding under FEMA Recovery Division Policy 9523.7, Public Housing Authorities (PHAs)
, dated April 14, 2003. FEMA cannot fund permanent work for PHAs eligible for funding under section 9(k) of the United States Housing Act of 1937 (the Housing Act).
The Applicant filed its first appeal by letter dated May 29, 2007, and the Governors Office of Homeland Security and Emergency Preparedness (GOHSEP) transmitted the Applicants first appeal by letter dated September 21, 2007. In a letter dated January 22, 2008, the Regional Administrator denied the first appeal because the Department of Housing and Urban Development (HUD) had specific authority to fund the Applicants permanent repairs and the Applicant failed to provide evidence that the repairs were not eligible for funding under section 9(k) of the Housing Act.
GOHSEP transmitted the second appeal on May 27, 2008. In the second appeal letter dated March 28, 2008, the Applicant acknowledges that it would be eligible for assistance under section 9(k) of the Housing Act if additional funds were available under that Act. The Applicant states that no funding is available through the HUD because of insufficient appropriations for the applicable fiscal year. The Applicant also asserts that FEMA has covered the short-fall in HUD disaster assistance in previous disasters. The Applicant states that an interpretation of FEMA Recovery Policy 9523.7, Public Housing Authorities (PHAs)
, dated April 14, 2003, that bars funding for repairs under these circumstances is inconsistent with the intent of the Stafford Act, prior agency interpretations and applications of the policy.
FEMAs Public Assistance Division Director and staff met with representatives of the Applicant on August 5, 2008, in Washington, D.C. to discuss the appeal. The Applicant stated that it believes that FEMA has more specific statutory authority than HUD to repair PHA facilities. It based this belief on the fact that HUDs authority applies to all PHAs throughout the nation whereas FEMA is authorized to help communities recover from disasters. The Applicants facilities were damaged by the disaster and Congress appropriated funds to FEMA to support the disaster recovery activities in New Orleans. Therefore, FEMA is not statutorily barred from funding repairs to PHA facilities. Further, it stated that Congress has expressed its intent that FEMA should fund the repair of PHAs by recently repealing section 9(k).
There is no dispute that section 9(k) of the Housing Act of 1937 as amended, authorizes HUD to fund the repair of PHAs. If Congress does not appropriate funds to HUD to implement section 9(k), it is inappropriate for FEMA to supplement HUDs appropriations by funding these activities. Although Congress repealed section 9(k) of the Housing Act in the Public Housing Disaster Relief Act of 2008 on July 30, 2008, the legislation applies to disasters declared after the date of enactment. It is not retroactive to Hurricane Katrina. When other Federal agencies have authority to provide disaster assistance, Public Assistance is not available for permanent repair of facilities and is limited to emergency work.
I have reviewed the information submitted with the appeal and have determined that the Regional Administrators decision in the first appeal is consistent with Public Assistance regulations and policies. Accordingly, I am denying the second appeal.
Please inform the Applicant of my decision. My determination constitutes the final decision on these matters pursuant to 44 CFR §206.206.
Carlos J. Castillo
Disaster Assistance Directorate
cc: William Peterson
FEMA Region VI
Louisiana Transitional Recovery Office