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Second Appeal Letter
PA ID# 071-99071-00; Ramsey County
PW ID# 554; Emergency access road repair
June 8, 2012
Lonnie G. Hoffer
Disaster Recovery Chief
North Dakota Department of Emergency Services
P.O. Box 5511
Bismarck, ND 58506-5511
Re: Second Appeal-Ramsey County, PA ID 071-99071 -00, Emergency access road repair, FEMA-1907-DR-ND Project Worksheet (PW) 554
Dear Mr. Hoffer:
This letter is in response to a letter from your office dated August 2, 2011, which transmitted the referenced second appeal on behalf of Ramsey County (Applicant). The Applicant is appealing the U.S. Department of Homeland Security’s Federal Emergency Management Agency’s (FEMA) determination that $13,025 in funding for emergency road repair work on a private driveway is ineligible.
Following the 2010 winter storms, heavy rain fell on frozen snow covered ground which caused extensive overland flooding in North Dakota. As a result of this flooding, the single lane private access roadway became inundated and impassable by emergency vehicles. The private drive is the sole access to the private home. In order to provide access to the residence, a contractor raised the roadway two feet above current elevation at a cost of $15,000. Under Title 44 of the Code of Federal Regulations (44 CFR) §206.225(b), Emergency Work, Emergency Access, private facilities, such as roads, may be eligible for assistance if the cost to repair or replace the facility economically eliminates the need for temporary housing. For this disaster, the established policy required the costs not to exceed $13,000, based on the estimated cost of providing temporary housing for 18 months. Therefore, a working PW 554 was prepared for $13,025, which included $13,000 to raise the grade of the roadway and $25 for direct administrative costs. Prior to approving the project, the North Dakota Department of Emergency Services (Grantee) determined that the project was ineligible because the homeowner initiated the contract. It was determined that the Applicant did not perform or directly contract the work, therefore the Applicant did not incur any costs.
On December 9, 2010, the Applicant appealed the determination of ineligibility. In the appeal letter, the Applicant asserted that, due to a heavy workload, it asked the homeowner to find a contractor to perform the emergency repair work. The Applicant conceded that the homeowner secured the contractor, but maintained that the project was initiated and monitored through the Applicant. The Applicant stated that the project was otherwise handled in the same manner as similar projects in the Applicant’s jurisdiction. The appeal also noted statements that the PW was inaccurate in reference to the explanation that the homeowner of the property, who was identified as having hired the contractor, was in fact deceased at the time of the event. The letter clarified that the family of the deceased homeowner contacted the contractor, but stressed that the project still went through the Applicant.
On March 17, 2011, the Regional Administrator denied the first appeal. The Regional Administrator first explained that, while the Applicant has accepted the project, the invoice submitted with the PW package did not identify a billing party and the Applicant had not yet paid the contractor. Therefore, per the eligibility requirements in 44 CFR §206.225(b), Emergency work, Emergency access, it was not clear whether the work was performed by an eligible applicant. Second, the Regional Administrator noted that the invoice submitted by the Applicant indicates that additional work has yet to be completed by the contractor. Additionally, the total cost of the emergency work was greater than the costs billed at the time of the appeal. The Applicant did not state that they intended to fund the remaining costs, and a review of the site location indicated that the roadway was still vulnerable to additional damage. Finally, in addition to the above-mentioned eligibility requirements, in order for work to be eligible for Public Assistance funding the work must be the legal responsibility of the eligible Applicant, pursuant to 44 CFR §206.223(a)(3), General work eligibility. The Regional Administrator concluded that the information submitted did not support the claim that the Applicant was legally responsible for the work, or that it had incurred costs for the work, and therefore denied the appeal.
The Applicant submitted its second appeal in a letter dated May 16, 2011. The Applicant reiterates its position from the first appeal, and clarifies that even though the family hired and paid the contractor, the project was monitored by the eligible Applicant. The Applicant also reiterates that this project was handled in the same manner as the other private driveways the Applicant was overseeing. The Applicant clarified that all work necessary to ensure the roadway remains passable has been completed, and submitted an invoice from the contractor to the family for the total cost of completed work.
Pursuant to 44 CFR §206.225(b), Emergency work, Emergency access, in order to be eligible for Public Assistance funding, emergency repairs or maintenance of the facility must economically eliminate the need for temporary housing, must be limited to work necessary for the access to remain passable through events which can be considered an immediate threat, and the work must be performed by an eligible applicant. Additionally, 44 CFR §206.223(a)(3), General work eligibility, requires that the work must be the legal responsibility of an eligible Applicant in order for the work to be eligible for Public Assistance funding. The documentation submitted by the Applicant provides no evidence that the Applicant had responsibility for the work performed, funded the costs, or that the completed work would provide sustainable access. In addition, 44 CFR §13.36(b)(1), Procurement, Procurement standards, states that Applicants can use their own procurement procedures which reflect applicable State and local laws and regulations, provided that the procurements conform to applicable Federal law and the standards identified in this section. Based on information in the appeal, the Applicant did not provide any evidence to show how the services were procured and if they complied with local, state, and Federal procurement procedures. Furthermore, the initial determination to calculate an 18 month period of rental assistance as a cost comparison is not reasonable in as much as temporary repairs for access could have been performed within a 4 to 6 week work period. Accordingly, the project would not meet the intent of the regulation to economically eliminate temporary housing. Therefore the Applicant is not eligible for Public Assistance funding to reimburse the costs documented on PW 554 under FEMA-1907-DR-ND.
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.
cc: Robin Fudge Finegan
FEMA Region VIII