Request for Public Assistance

Appeal Brief Appeal Letter

Appeal Brief

Disaster1993-DR-NY
ApplicantAllegany Trails, Inc.
Appeal TypeSecond
PA ID#003-U9VOU-00
PW ID#N/A
Date Signed2013-08-22T00:00:00

Citation:  FEMA-1993-DR-NY, Allegany Trails, Inc., Request for Public Assistance (RPA)

Cross-Reference:  Applicant Eligibility; Private Nonprofit

Summary:  Following the severe storms, flooding, tornadoes, and straight-line winds that occurred between April 26 and May 8, 2011, the Applicant submitted an RPA on July 8, 2011.  On July 25, 2011, FEMA determined that the Applicant was not an eligible private nonprofit (PNP) applicant.  FEMA denied the RPA, because the RPA indicated that the Applicant’s primary purpose was to provide trails for health and recreation.  The Applicant submitted a first appeal asserting that it functions as an educational facility, because the trail and trailheads are outdoor classrooms.  The Applicant also stated that it has future plans to construct both a concert shelter (performing art facility) and an outdoor healthy heart fitness course to provide health and safety services to the general public.  The FEMA Region II Regional Administrator denied the Applicant’s first appeal stating that the Applicant does not own or operate an eligible PNP facility.  The Applicant submitted its second appeal, requesting reconsideration of its eligibility as a PNP and reiterating its position that it operates an educational facility.  In support of its position, the Applicant refers to educational signs located along the trails.  The Applicant states that many schools, colleges, and universities use the trails in their environmental programs because of an environmental cleanup project on the property. 

Issue:  Does the Applicant own or operate a private nonprofit facility as defined in 44 CFR §206.221(e)?

Finding:  No

Rationale:  44 CFR §202.226 Applicant eligibility, 44 CFR §206.221(e) Definitions, Private nonprofit facility


 

Appeal Letter

August 22, 2013

Dr. Peter Marghella
Director
New York State Office of Emergency Management
1220 Washington Avenue, Building 22, Suite 101
Albany, New York 12226-2251

Re: Second Appeal–Allegany Trails, Inc., PA ID 003-U9VOU-00, Request for Public Assistance, FEMA-1993-DR-NY

Dear Dr. Marghella:

This is in response to a letter from your office dated December 10, 2012, which transmitted the referenced second appeal on behalf of Allegany Trails, Inc. (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). 

Background

Following the severe storms, flooding, tornadoes, and straight-line winds that occurred between April 26 and May 8, 2011, the Applicant submitted an RPA on July 8, 2011.  On July 25, 2011, FEMA determined that the Applicant was not an eligible private nonprofit (PNP) applicant.  FEMA denied the RPA, because the RPA indicated that the Applicant’s primary purpose was to provide trails for health and recreation.

First Appeal

The Applicant submitted a first appeal on April 25, 2012, asserting that it functions as an educational facility, because the trail and trailheads are outdoor classrooms.  The Applicant also stated that it has future plans to construct both a concert shelter (performing art facility) and an outdoor healthy heart fitness course to provide health and safety services to the general public.   On August 29, 2012, the FEMA Region II Regional Administrator denied the Applicant’s first appeal stating that the Applicant does not own or operate an eligible PNP facility. 

Second Appeal

The Applicant submitted its second appeal on November 9, 2012, requesting reconsideration of its eligibility as a PNP and reiterating its position that it operates an educational facility.  In support of its position, the Applicant refers to educational signs located along the trails.  The Applicant states that many schools, colleges, and universities use the trails in their environmental programs because of an environmental cleanup project on the property. 

Discussion

According to Title 44 of the Code of Federal Regulations (44 CFR) §206.222 Applicant eligibility, private nonprofit organizations or institutions which own or operate a private nonprofit facility, as defined in 44 CFR §206.221(e) Definitions, are eligible applicants under FEMA’s Public Assistance Program.  Pursuant to 44 CFR §206.221(e), a private nonprofit facility means any private nonprofit educational, utility, irrigation, emergency, medical, or custodial care facility, and other facilities that provide an essential governmental type services to the general public.  Essential governmental services are limited by 44 CFR §206.221(e)(7) to museums, zoos, community centers, libraries, homeless shelters, senior citizen centers, rehabilitation facilities, shelter workshops and facilities which provide health and safety services of a governmental nature.  Educational facilities are further defined by 44 CFR §206.221(e)(1) as classrooms plus related supplies, equipment, machinery, and utilities of an educational institution.  While the Applicant provides educational information on signs along the trails that it owns and maintains, the trails are not classrooms and they are not part of an educational institution.  The Applicant does not own or operate an eligible private nonprofit facility. 

Conclusion

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 constitutes the final decision on this matter pursuant to 44 CFR §206.206, Appeals.

Sincerely,

/s/

Deborah Ingram
Assistant Administrator
Recovery Directorate

cc: Mary Ann Tierney
     Regional Administrator, Acting
     FEMA Region II

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