Request for Public Assistance

June 23, 2009

Frank McCarton
Governor’s Authorized Representative
Office of the Secretary
California Emergency Management Agency
3650 Schriever Avenue
Mather, California 95655

Re: Second Appeal–California Department of Insurance, PA ID 073-UVBMP-00,
Request for Public Assistance, FEMA-1731-DR-CA

Dear Mr. McCarton:

This is in response to your letter, dated February 24, 2009, which transmitted the referenced second appeal on behalf of the California Department of Insurance (CDI). CDI is appealing the Department of Homeland Security’s Federal Emergency Management Agency’s (FEMA) denial of its Request for Public Assistance (RPA).

The President declared a major disaster for the 2007 wildfires on October 24, 2007. CDI submitted an RPA to the California Emergency Management Agency (Cal EMA), formerly known as the Governor’s Office of Emergency Services, on January 31, 2008, 37 days after the established deadline of December 24, 2007. FEMA denied the CDI’s RPA because it was submitted after the established deadline.

In a letter dated April 18, 2008, CDI appealed the denial of its RPA because of the legal principles of excusable mistake and detrimental reliance. CDI stated that it delayed filing its RPA because it reasonably believed that it was complying with the application process. CDI claimed that a Cal EMA Public Assistance Coordinator (PAC) instructed it to schedule a meeting prior to filing its RPA. CDI interpreted this meeting to be the initial step to completing the RPA. Due to scheduling changes, the meeting did not occur until January 30, 2008, at which point a Cal EMA PAC informed CDI that the RPA deadline had passed. In a letter dated October 14, 2008, the Deputy Regional Administrator denied the appeal because the RPA was not submitted within the regulatory timeframe and CDI did not provide any extenuating circumstances beyond its control as required in 44 CFR §206.202(f)(2), Application procedures, Exceptions, Time limitations.

CDI submitted its second appeal in a letter dated December 30, 2008. CDI reiterated that its late RPA application resulted from a reasonable misunderstanding of the instructions from a Cal EMA PAC. CDI stated that FEMA’s denial of its first appeal was “capricious and arbitrary
because it did not address the legal, equitable and factual issues” raised by CDI that show the de minimis tardiness should be excused and FEMA should approve the late RPA submission. CDI provided staff declarations outlining the instructions that it received from a Cal EMA PAC to support that its mistake and detrimental reliance was reasonable under the circumstances.

FEMA has noted that the Cal EMA website included information regarding the RPA process and all applicable deadlines. Cal EMA also provided RPA application information at multiple Applicants’ Briefings. This provided sufficient access to all potential applicants. I have reviewed the information submitted with the appeal and have determined that the Deputy 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.

Sincerely,

/s/

Elizabeth A. Zimmerman
Assistant Administrator
Disaster Assistance Directorate

cc: Nancy Ward
Regional Administrator
FEMA Region IX