Appeal Brief | Appeal Letter | Back
Second Appeal Letter
PA ID# xxx-xxxxx-xx; Florida Division of Community Colleges
PW ID# N/A; Request for Public Assistance
September 11, 2012
Brian W. Koon
Florida Division of Emergency Management
2555 Shumard Oak Boulevard
Tallahassee, Florida 32399-2100
Re: Second Appeal–Florida Division of Community Colleges, Request for Public Assistance, FEMA-1679-DR-FL
Dear Mr. Koon:
This letter is in response to your letter dated April 21, 2011, which transmitted the referenced second appeal on behalf of the Florida Division of Community Colleges (Applicant). The Applicant is appealing the Department of Homeland Security’s Federal Emergency Management Agency’s (FEMA) denial of its Request for Public Assistance (RPA) under FEMA-1679-DR-FL.
On February 3, 2007, the President declared a major disaster for Florida as a result of the impacts of severe storms and tornadoes occurring February 1-2, 2007. The declaration authorized federal disaster assistance through FEMA’s Public Assistance Program for debris removal and emergency protective measures (Categories A & B), including Direct Federal Assistance, for eligible applicants in Lake, Seminole, Sumter and Volusia counties . On February 7, 2007, the declaration was expanded to include assistance for permanent work (Categories C-G). The Applicant submitted an RPA to the Florida Division of Emergency Management (Grantee) on June 26, 2007, which the Grantee forwarded to FEMA in August 2007. FEMA denied the RPA because the Applicant submitted it well after the regulatory deadline of 30-days after the date of designation of the affected area. On September 28, 2007, the Grantee requested that FEMA reconsider approving the Applicant’s RPA. In a letter dated October 26, 2007, the FEMA Region IV Regional Administrator determined that the Applicant was not eligible to receive assistance under FEMA-1679-DR-FL because the Applicant did not submit the RPA within the regulatory timeframe and did not provide extenuating circumstances that would have justified the delay.
On May 14, 2008, the Applicant submitted an appeal of the denial of the RPA. Although the Applicant had not yet submitted a first appeal, the Applicant identified the letter as a second level appeal. In the appeal, the Applicant stated that it intended to seek reimbursement for the eligible damage sustained by the Daytona Beach Community College (DBCC). The Applicant explained that even though the DBCC submitted a timely RPA and had received Public Assistance funding for the damage, the Applicant, as an agent of the DBCC, preferred to serve as the subgrantee. Although the Applicant concedes that its Request was submitted after the regulatory deadline, the Applicant claimed that it was unaware that the declaration was modified on February 7, 2007, to include permanent work until after the deadline and requested that FEMA approve a retroactive extension for submittal of its RPA.
On May 30, 2008, the Grantee transmitted the first appeal to FEMA with a letter supporting the Applicant. The Grantee stated that during the 30-day Request submittal period, the Applicant was unsure of its status as an applicant for Public Assistance. Furthermore, the Grantee recommended that FEMA approve the appeal and the RPA because there would be no net change in eligible work or funding. On June 10, 2009, the Regional Administrator responded to the appeal as a first appeal. The Regional Administrator denied the appeal because the RPA was submitted after the regulatory deadline and the appeal was filed after the 60-day deadline for submitting appeals pursuant to Title 44 of the Code of Federal Regulations (44 CFR) § 206.206(c) Appeals, Time Limits.
The Grantee forwarded a second appeal on behalf of the Applicant to FEMA on April 21, 2011. The Grantee explained that due to confusion resulting from the designation of the first appeal as a second level appeal, the Grantee never informed the Applicant of the disposition of the appeal. Despite the miscommunication, the Grantee requests that FEMA consider the merits of the Applicant’s claim. The Grantee asserts that the Applicant filed a timely RPA under FEMA-1679-DR-FL, which FEMA denied on the basis that the Applicant did not have legal responsibility for the damaged facilities. The Grantee contends that FEMA had previously determined in a September 1, 2006, response to a second appeal by the Florida Community College Risk Management Consortium, that the Applicant could act as an eligible applicant on behalf of its constituent community colleges. The Grantee maintains that FEMA should approve the Applicants RPA in order to be consistent with this determination. The Grantee did not address the Applicant’s failure to submit its request within the regulatory timeframe.
Pursuant to 44 CFR §206.202(c), Request for Public Assistance, “[t]he Grantee must send a complete Request (FEMA Form 90-49) to the Regional Administrator for each applicant who requests public assistance. You must send Requests to the Regional Administrator within 30 days after designation of the area where the damage occurred.” 44 CFR §206.202(f)(2), Time limitations, provides an exception, whereby, “The Regional Administrator may extend the time limitations shown in paragraphs (c) and (d) of this section when the Grantee justifies and makes a request in writing. The justification must be based on extenuating circumstances beyond the grantee’s or subgrantee’s control.” In this case, while the Applicant attributed the delay in submittal of its Request to unawareness of the modification of the declaration to include permanent work, the Applicant has not demonstrated extenuating circumstances that would justify extending the deadline. The Grantee claimed that the Request was filed in a timely manner, but has provided no documentation or evidence demonstrating that the Grantee transmitted the RPA to FEMA on or before March 9, 2007.
While the Grantee is correct that FEMA determined, in response to a second appeal in September 2006, that the Applicant could act as an eligible applicant on behalf of the consortium and apply for federal funding for repair of eligible damage to constituent colleges under FEMA-1539/1545/1551/1561-DR-FL, the Applicant did not submit an RPA for FEMA-1679-DR-FL, which was declared in February 2007, until five months after the regulatory deadline for submittal of RPAs. Furthermore, the Applicant has provided no additional information or explanation for the reason for not submitting the RPA within the established timeframe. FEMA also notes that the Daytona Beach Community College individually submitted an RPA, which was approved. FEMA has provided funding to the College for the damages it incurred.
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: Major P. May
FEMA Region IV