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Second Appeal Letter
PA ID# 000-UE8TP-00; Louisiana Department of State
PW ID# 06366; Emergency Protective Measures
June 1, 2012
Governor’s Office of Homeland Security and Emergency Preparedness
7667 Independence Boulevard
Baton Rouge, LA 70806
Re: Second Appeal – Louisiana Department of State, PA ID 000-UE8TP-00, Emergency Protective Measures, FEMA-1786-DR-LA, Project Worksheet (PW) 06366
Dear Mr. Davis:
This letter is in response to a letter from your office dated July 25, 2011, which transmitted the referenced second appeal on behalf of the Louisiana Department of State (Applicant). The Applicant is appealing the Department of Homeland Security’s Federal Emergency Management Agency’s (FEMA) denial of $395,459 for costs associated with rescheduled elections.
In September 2008, severe storms and flooding associated with Hurricane Gustav caused damage throughout the State of Louisiana. The President declared a major disaster (FEMA-1786-DR-LA) on September 2, 2008. In response to the severe weather, theApplicant postponed elections throughout the State from September 6, 2008 to October 4, 2008. FEMA prepared PW 06366 for $431,364 to document the costs associated with the rescheduled elections, which included labor costs for notifying media and others that elections were delayed, meeting costs for the Board of Election Supervisors to re-draw names for commissioners, miscellaneous expenses such as postage, reprinted ballots, and newspaper advertisements announcing date changes.
FEMA determined that a total of $35,457 in overtime labor costs and $448 in direct administrative costs associated with notifying the public of the cancelled election on September 6, 2008 were eligible. FEMA determined that the Applicant’s emergency communication eliminated or reduced an immediate threat to life, public health, and safety of the community that would have been traveling to and from polling sites. FEMA also determined that $395,459 for rescheduling the election, including costs for Board of Election Supervisors meetings, postage, newspaper advertisements, and reprinted ballots, were not eligible because the work was not eligible emergency protective measures performed to eliminate or reduce threats to human life, public health and safety, or prevent damage to public property. In addition, FEMA determined these costs to be increased operating expenses, which are not eligible for reimbursement.
In its first appeal letter dated August 19, 2010, the Applicant indicated its primary basis for the appeal was that the costs incurred to delay and reschedule the election are eligible under Section 403 of the Robert T. Stafford Disaster Relief and Emergency Assistance Act (Stafford Act). The Applicant also asserted that FEMA funded costs associated with rescheduled elections in other disasters, specifically the World Trade Center disaster following the terrorist attacks on September 11, 2001. In a letter dated March 21, 2011, the Regional Administrator denied the appeal, stating that in accordance with Title 44 Code of Federal Regulations (44 CFR) §206.225(a)(3) Emergency Work, in order to be eligible, an emergency protective measure must; eliminate or lessen immediate threats to life, public health or safety; or eliminate or lessen immediate threats of significant additional damage to improved public or private property through measures which are cost effective. The costs of rescheduling elections are not eligible because they cannot be directly tied to the performance of eligible emergency work. In addition, FEMA’s use of funds for rescheduled elections following the World Trade Center disaster was authorized by Congress through the Consolidated Appropriations Resolution for fiscal year 2003, which permitted FEMA to use funds for costs that were not reimbursable under the Stafford Act.
The Applicant submitted its second appeal letter on May 25, 2011. The Applicant reiterated its position that expenses incurred to delay and reschedule the elections should be reimbursed as eligible expenses. Specifically, the Applicant argued that the costs for rescheduling the election were not increased operating costs and should be considered an essential public service, eligible as an emergency protective measure. The Applicant stated that expenses incurred to reprint ballots should be considered eligible under a Category E (Buildings and Equipment) project according to 44 CFR §206.226(h) and (i), Restoration of Damaged Facilities, and the Public Assistance Applicant Handbook. Finally, the Applicant notes that FEMA has approved similar costs associated with elections for other disasters.
Pursuant to 44 CFR §206.225 Emergency Work, emergency protective measures are actions to save lives, to protect public health and safety, and to protect improved property and are therefore eligible for assistance. The $35,904 in eligible costs for force account labor and the associated direct administrative costs were deemed emergency protective measures as part of the emergency communication to notify voters who may have been traveling to polling sites in the aftermath of the hurricane. However, the remaining costs, including reprinting ballots, Board of Election Supervisors Meetings, newspaper advertisements, and miscellaneous expenses, are not directly tied to the performance of emergency work. The Applicant provided no additional evidence that these activities are associated with activities to save lives, protect public health and safety, or to protect improved property. Reprinting the ballots also are not eligible under 44 CFR §206.226(h) and (i), Restoration of Damaged Facilities, because they were not damaged by the disaster. Finally, as referenced in the Regional Administrator’s first appeal response, FEMA funding for rescheduled elections following the World Trade Center disaster was authorized by Congress through the Consolidated Appropriations Resolution for fiscal year 2003.
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. This determination is the final decision on this matter pursuant to 44 CFR §206.206, Appeals.
Elizabeth A. Zimmerman
Deputy Associate Administrator
Office of Response and Recovery
cc: Tony Robinson
Acting Regional Administrator
FEMA Region VI