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Second Appeal Letter
PA ID# 000-UYUB9-00; California Department of Forestry and Fire Protection
PW ID# 70; Eligible Work
September 20, 2010
Mr. Tom Maruyama
Governor’s Authorized Representative
California Emergency Management Agency
3650 Schriever Avenue
Mather, CA 95655
Re: Second Appeal – California Department of Forestry and Fire Protection
Eligible Work, FEMA-3287-EM-CA, Project Worksheet (PW) 70
Dear Mr. Maruyama:
This is in response to your letter dated April 8, 2010, which transmitted the referenced second appeal for the California Department of Forestry and Fire Protection (Applicant). The Applicant is appealing the Department of Homeland Security’s Federal Emergency Management Agency’s (FEMA) decision to deny its first appeal for force account labor and equipment costs associated with the Applicant’s participation in the State Emergency Assessment Team (SEAT) program. The amount being appealed is $191,675.
Following the fires in the summer of 2008, the Governor of California ordered the California Emergency Management Agency (Cal EMA) to mitigate the effects of the fires and coordinate the assistance programs offered by Federal, state and local agencies. Cal EMA asked the Applicant to participate in the multi-agency SEAT. The SEAT conducted on-site evaluations and developed site specific mitigation measures to address the post fire effects to life, safety, property and natural/cultural resources above and beyond the typical fire suppression repair activities. The Applicant incurred force account labor and equipment expenses for its participation on the SEAT and requested reimbursement from FEMA. Cal EMA prepared PW 70 for $191,675 to reimburse the Applicant for their expenses. Upon review of the PW, FEMA determined that the work was ineligible for funding.
The Applicant submitted its first appeal on February 11, 2009, and asserted that similar types of expenses were eligible in a previous disaster, FEMA-1731-DR. The appeal stated that “both disasters, 1731-DR and 3287-EM, provided Category B work.” On July 10, 2009, The Regional Administrator requested that Cal EMA provide supporting documentation to substantiate specific emergency protective measures that the Applicant implemented based on information included in the SEAT report. Cal EMA submitted additional information on August 13, 2009, that included State Administrative Orders outlining the Applicant’s authority to provide resources in support of response operations coordinate with the state’s office of emergency services and perform work or take remedial measures necessary in times of extraordinary stress and of disaster. The additional information also included examples of implemented projects from the SEAT report deemed to be emergency protective measures as stated in Title 44 Code of Federal Regulations (CFR) Section (§) 206.225 (a)(3), Emergency work, General, which states that eligible emergency protective measures must eliminate or lessen immediate threats. After review of the supplemental information, the Regional Administrator sustained FEMA’s initial determination that the scope of work that the Applicant performed was not eligible for funding. The Applicant, through its SEAT participation, assessed areas for threats and did not perform the work referenced in the implemented projects. In addition, FEMA did not authorize these types of efforts for federal funding under emergency declaration FEMA-3287-EM-CA. The Regional Administrator denied the appeal on November 17, 2009.
The Applicant submitted its second appeal on February 9, 2010, reiterating the arguments from the first appeal. The Applicant provided additional information and stated that pursuant to the California Emergency Services Act, Mutual Aid Agreement of 1950 and the Governor’s Proclamation for the 2008 Mid-Year California Fires, it had the authority to perform the safety assessments associated with the SEAT.
Title 44 CFR §206.225 (a)(3) Emergency Work, General, states that “In order to be eligible, emergency protective measures must: (i) Eliminate or lessen immediate threats to live, public health or safety; or (ii) Eliminate or lessen immediate threats of significant additional damage to improved public or private property through measure which are cost effective.” The Applicant, as a SEAT participant, performed safety assessments that were published and provided to local officials, but did not perform any work designated as emergency protective measures.
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 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, Appeals.
Elizabeth A. Zimmerman
cc: Nancy Ward
FEMA Region IX