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Second Appeal Letter
PA ID# 000-USS9W-00; Massachusetts Port Authority
PW ID# N/A; Request for Public Assistance
February 19, 2013
Kurt N. Schwartz
Massachusetts Emergency Management Agency
400 Worcester Road
Framingham, MA 01702-5399
Re: Second Appeal-Massachusetts Port Authority, PA ID 000-USS9W-00, Request for Public Assistance, FEMA-1959-DR-MA
Dear Mr. Schwartz:
This letter is in response to a letter from your office dated September 17, 2012, which transmitted the referenced second appeal on behalf of Massachusetts Port Authority (Applicant). The Applicant is appealing the U.S. Department of Homeland Security’s Federal Emergency Management Agency’s (FEMA) denial of its Request for Public Assistance (RPA) under FEMA-1959-DR-MA.
On March 7, 2011, the President declared a major disaster for the Commonwealth of Massachusetts as a result of the impacts of severe winter storms on January 11-12, 2011. The declaration authorized Federal disaster assistance through FEMA’s Public Assistance (PA) Program for debris removal and emergency protective measures (Categories A & B), for eligible applicants in Berkshire, Essex, Hampshire, Middlesex, Norfolk, and Suffolk Counties. The Massachusetts Emergency Management Agency (Grantee) requested and FEMA approved an extension of the regulatory deadline for submittal of RPAs for applicants within these counties to April 13, 2011. On December 20, 2011, the Applicant submitted a formal request for FEMA to extend the RPA deadline. FEMA denied the request on March 8, 2012, because the Applicant did not provide sufficient justification of extenuating circumstances beyond its control which prevented it from filing a timely RPA and would warrant an extension of the RPA deadline as required by Title 44 of the Code of Federal Regulations (44 CFR) § 206.202(f)(2), Application Procedure, Exceptions, Time Limitations.
The Applicant submitted a first appeal letter to the Grantee on April 30, 2012, requesting that FEMA reconsider extending the RPA deadline. The appeal noted that the Applicant had received reimbursement from FEMA through the PA Program under previous presidentially declared disasters and had not previously missed any deadlines. The Applicant explained that, at the request of the Grantee, it submitted an initial damage assessment report, which documented its snow removal and emergency work expenses resulting from the January 11-12 storm, to the Grantee on January 28, 2011. The Applicant stated that it understood the report indicated its intent to seek reimbursement for eligible costs incurred as a result of the disaster. It further explained that its understanding of the standard protocol for notification of the availability of Federal disaster assistance under a presidential declaration entailed receipt of an email from the Grantee identifying the locations, dates, and times of the Applicants’ Briefings. However, when the Applicant contacted the Grantee on May 20, 2011, to inquire about declaration FEMA-1959-DR-MA, the Applicant discovered that the Grantee’s email had been intercepted and redirected by the Chief Finance Officer’s spam filtering software. The Applicant contended that the quarantining of the email represents an extenuating circumstance that justifies extension of the RPA deadline. The Grantee supported the Applicant’s appeal and transmitted it to FEMA with a letter dated, May 18, 2012.
With a letter dated July 19, 2012, the Regional Administrator (RA) responded to the Applicant’s first appeal and determined that the Applicant did not provide sufficient evidence of extenuating circumstances which would have prevented the Applicant from submitting the RPA before the deadline. The RA explained that information regarding the major disaster declaration and the Applicants’ Briefings was made available through press releases, MEMA website, and other means of public outreach.
The Applicant submitted a second appeal on September 14, 2012, in which it reiterates its first appeal claim that the email announcing the date, time, and location of the Applicants’ Briefing notification had been quarantined by the Applicant’s email filtering software. The letter further argues that the Grantee’s email notification regarding the Applicant Briefing was misaddressed to the Applicant’s Director of Administration and Finance instead of the regular liaison to the Grantee for disaster operations. The Applicant additionally states that the RA’s denial of the appeal contradicts FEMA’s mission and core policies.
FEMA Headquarters, FEMA Region I staff, the Grantee and the Applicant convened a conference call on January 16, 2013, to discuss the appeal. During the conference call, the Applicant reiterated that it had received PA funding during previous disasters, that it was never notified of the Applicants’ Briefing information, that the quarantining of the Grantee’s email by the spam filtering software prevented the Applicant from submitting a timely RPA, and that the RA’s decision contradicts FEMA’s core mission and values.
Pursuant to 44 CFR §206.202(c), Application Procedures, Request for Public Assistance, “[t]he Grantee must send a completed 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), 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 instance, the Applicant attributed the delay in submittal of its RPA to the Grantee’s error in sending the Applicants’ Briefing schedule to the incorrect contact. However, the Grantee’s email was not the only means by which the Grantee and FEMA notified potentially eligible applicants that an Applicants’ Briefing was scheduled. Other means included press releases and the MEMA website.
The Applicant noted in both the conference call and the second appeal letter that it has previously received PA funding from FEMA and had not missed any deadlines. In fact, the Applicant received $3,616,637 from FEMA under five declarations in the eight years before the declaration of FEMA-1959-DR-MA. The Applicant has shown that there was a miscommunication with the Grantee regarding the Applicant’s primary and alternate points of contact, and that an overly restrictive filter setting prevented the Applicant from reading the email from the Grantee. However, the Applicant was aware of the procedure for requesting disaster assistance and was aware that there was a deadline for submittal of its RPA. Additionally, FEMA did not receive the request for extension of the RPA deadline until nine and a half months after the date of declaration. The Applicant has not submitted documentation that would justify extending the RPA deadline by more than eight months.
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: Paul F. Ford
FEMA Region I