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Second Appeal Letter
PA ID# 000-U03E9-00; Florida Department of Transportation
DSR ID# Project Worksheet 6281; Damage Assessments
March 23, 2009
W. Craig Fugate
Florida Division of Emergency Management
2555 Shumard Oak Boulevard
Tallahassee, Florida 32399-2100
Re: Second AppealFlorida Department of Transportation, PA ID 000-U03E9-00,Damage Assessments
, FEMA-1561-DR-FL, Project Worksheet (PW) 6281
Dear Mr. Fugate:
This letter is in response to a letter from your office dated February 25, 2008, which transmitted the referenced second appeal on behalf of the Florida Department of Transportation (Applicant). The Applicant is appealing the Department of Homeland Securitys Federal Emergency Management Agencys (FEMA) denial of $741,585 for reimbursement of safety reviews.
After Hurricane Jeanne, the Applicant conducted safety reviews of light poles and traffic signal structures on roads within its District Four counties of Broward, Palm Beach, Martin, St. Lucie and Indian River. The roads remained open during the safety reviews. In response to the Applicants request for reimbursement, FEMA prepared PW 6281 for work totaling $741,585 and obligated it for zero dollars. FEMA determined that the safety reviews were not eligible because the work falls under the responsibility of the Federal Highway Administration (FHWA), that safety reviews are not considered emergency work, and that the safety reviews were in fact damage assessments and not eligible for FEMA reimbursement.
The Applicant filed a first appeal on June 13, 2006, arguing that the safety reviews constituted emergency protective measures, and the work was not reimbursable by FHWA. FEMA denied the appeal on November 16, 2007, because the Applicant did not establish that the work in question met the definition of emergency work as defined under 44 CFR
§206.201(b), Definitions used in the subpart
, . . . work which must be done immediately to save lives and to protect improved property and public health and safety, or to avert or lessen the threat of a major disaster. The Regional Administrator noted that the safety reviews were not performed in a timely manner during which time the roadways remained opened to the traveling public, indicating that there was no immediate threat to public safety. In addition, the Regional Administrator concluded that even if the costs of the damage assessments/safety reviews are not eligible under the FHWA Emergency Relief Program, FEMA cannot reimburse those costs.
On January 31, 2008, the Applicant submitted a second appeal, reiterating that the work was emergency protective measures not reimbursable by FHWA and arguing that in certain circumstances, FEMA was authorized to fund emergency work on roads that were under the
authority of another Federal agency. The Applicant further argued that the safety reviews met the definition of emergency protective measures because the work was required in order to identify damaged light poles and traffic signal structures so that action could be taken to eliminate or lessen immediate threats to lives and safety, and significant additional damage to improved property. The Applicant did not provide new information to support its appeal.
FEMA regulations provide that emergency protective measures, as defined in
44 CFR §206.225, Emergency work
, may be eligible for funding. It is FEMAs determination, however, that the safety reviews were not emergency work and, therefore, are not eligible for funding. Specifically, the Applicant performed reviews throughout a seven-month period during which time the roadways remained opened to the traveling public, indicating that there was no immediate threat to public safety. In addition, FEMA does not fund surveys or safety reviews to determine the possibility of damage to a facility. The owner of a facility is responsible for determining the extent of damage.
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 policy. Accordingly, I am denying the second appeal.
Please inform the Applicant of my decision. This determination is the final decision on this matter pursuant to 44 CFR §206.206, Appeals
James A. Walke
Acting Assistant Administrator
Disaster Assistance Directorate
cc: Major P. May
FEMA Region IV