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Second Appeal Letter
PA ID# 059-53520-00; City of Ocean Springs
PW ID# 3300; Debris Removal
March 29, 2010
Thomas M. Womack
Governor’s Authorized Representative
Mississippi Emergency Management Agency
Post Office Box 5644
Pearl, MS 39208-5644
Re: Second Appeal–City of Ocean Springs, PA ID 059-53520-00, Debris Removal,
FEMA-1604-DR-MS, Project Worksheet (PW) 3300
Dear Mr. Womack:
This letter is in response to your letter dated May 1, 2009, which transmitted the referenced second appeal on behalf of the City of Ocean Springs (Applicant). The Applicant is appealing the Department of Homeland Security’s Federal Emergency Management Agency’s (FEMA) reduction of $82,140 for costs associated with first pass debris removal from Federal-aid roads.
Hurricane Katrina deposited vegetative debris on streets and roads within the Applicant’s municipal limits. From August 29 to September 30, 2005, the Applicant used a local contractor to perform first pass debris removal to clear storm debris from the Applicant’s streets and roads. On June 27, 2007, the Applicant submitted a Project Activation Request (PAR) to the Mississippi Department of Transportation (MDOT), the state pass-through agency for Federal Highway Administration’s (FHWA) Emergency Relief (ER) Program funds. The PAR requested reimbursement for the work identified as the “initial pushing of debris—opening of roadways” on Federal-aid roads totaling $94,461. On December 3, 2007, FEMA prepared PW 3300 documenting $317,595 in eligible costs for first pass debris clearance, including removal of overhanging trees and limbs and pushing vegetative debris to the roadside. The Applicant later acknowledged that it removed debris from Federal-aid roads that is the responsibility of the FHWA under the ER Program. This amount represented a duplication of assistance and is under the authority of another federal agency. In Version 1 of PW 3300, FEMA deducted $94,461 on June 24, 2008.
In a letter dated November 12, 2008, the Applicant appealed this deobligation of funding. The Applicant stated that although this funding is potentially available through MDOT under the FHWA ER program, the Applicant has not received this funding from MDOT. The Applicant argues that FEMA funding is therefore not a duplication of benefits, because the Applicant is not in possession of money from both sources. The Applicant also asserted that even if it were to receive funding from MDOT, the potential amount of duplication would be far less than the $94,461 that was deobligated by FEMA. The Applicant claimed that the maximum amount that would potentially be eligible under FHWA standards is $12,202, because the State used a shorter period of time for calculating first pass expenses than the time used by FHWA personnel to write the corresponding Detailed Damage Inspection Report.
The Regional Administrator partially approved the Applicant’s first appeal on January 19, 2009, and approved Version 2 of PW 3300 reinstating $12,321 for costs not included in the Applicant’s request to MDOT. The Regional Administrator denied funding of the remaining $82,140, rebutting the State’s assertion that that the maximum amount potentially available from MDOT for the initial push was only $12,202. The Regional Administrator stated that this argument is irreconcilable with the fact that the Applicant had previously claimed $82,140 from MDOT for the work in question. The Applicant submitted its second appeal on May 1, 2009, to request the remaining $82,140 of the original contract costs and reiterated its initial argument.
FEMA generally does not provide disaster assistance when another Federal agency has more specific authority to do so. See, for example, 44 CFR §206.226(a). FHWA has authority under the ER program for the initial cut and push debris removal work. Moreover, Section 312 of the Robert T. Stafford Disaster Relief and Emergency Assistance Act, Duplication of Benefits, prevents duplication of assistance “with respect to any part of such loss as to which he has received financial assistance under any other program or from insurance or any other source.” As stated in the FEMA Policy Digest, “If an applicant can obtain assistance for a project from a source other than FEMA, then FEMA cannot provide funds for the project.” (October, 1998.) It is therefore not required that the applicant actually receive the financial assistance, it only need be available to them.
I have reviewed the information submitted with the appeal and have determined that the Regional Administrator’s decision in the first appeal is consistent with Public Assistance regulations and policy. Accordingly, I am denying the appeal.
Please inform the Applicant of my decision. This determination is the final decision on this matter pursuant to 44 CFR §206.206, Appeals.
Elizabeth A. Zimmerman
Disaster Assistance Directorate
cc: Major P. May
FEMA Region IV