Facility Eligibility Determination

Appeal Brief

Desastre	FEMA-1379-DR
Applicant	Houston Symphony Association
Appeal Type	Second
PA ID#	201-UFEN7-00
PW ID#	N/A
Date Signed	2002-07-17T04:00:00

Citation:

FEMA-1379-DR-TX; Houston Symphony Association, Facility Eligibility Determination

Cross-reference:

Eligible Facility

Summary:

The Houston Symphony Association (HSA), a private nonprofit (PNP) association, submitted a Request for Public Assistance (RPA) due to damages caused by Tropical Storm Allison. The Federal Emergency Management Agency (FEMA) denied funding to HSA because it occupied space in a performing arts facility, which is not eligible. HSA appealed this determination. The Regional Director denied the appeal on October 17, 2001, because the space used for the music library represented less than 50% of the square footage of HSA’s leased space. HSA submitted its second appeal in a letter dated December 31, 2001, stating that the library should be considered on a stand-alone basis. If not considered on a stand-alone basis, then HSA stated that it believes at least 50% of its long-term leased facility is used for library related purposes. Finally, it added that if its first two requests were rejected, it requested that it be considered based on the operating assets used for eligible purposes instead of square footage of leased space. The State supports HSA’s appeal.

Issues:

Is the library an eligible facility?

Findings:

No. The space occupied by the library equals approximately 691 square feet while the total space leased by HSA equals approximately 8,398 square feet.

Rationale:

44 CFR §206.221 and Response and Recovery Policy 9521.3

Appeal Letter

July 17, 2002

Mr. E. C. Smith
State Coordinating Officer
Division of Emergency Management
Texas Department of Public Safety
2575 West Bellfort Street
Houston, Texas 77054-5025

Re: Second Appeal: Houston Symphony Association, PA ID 201-UFEN7-00, Facility Eligibility Determination, FEMA-1379-DR-TX

Dear Mr. Smith:

This is in response to your January 31, 2002, transmittal of the Houston Symphony Association’s (HSA’s) second appeal regarding the eligibility of HSA’s music library for disaster assistance under the Federal Emergency Management Agency’s (FEMA’s) Public Assistance Program.

HSA leases 8,398 square feet of space from the City of Houston, of which 691 square feet are used as a library for musical scores. Following Tropical Storm Allison in June 2001, HSA submitted a request for federal disaster assistance seeking reimbursement for musical scores lost because of flooding. In accordance with 44 CFR §206.221, FEMA denied Public Assistance funding because performing arts facilities are not eligible.

The Texas Division of Emergency Management (State) forwarded HSA’s first appeal to FEMA’s Region VI Regional Director, with a September 22, 2001, letter. The Regional Director determined that the space used for the music library represented less than 50% of the square footage of HSA’s leased space. Therefore, he denied the first appeal pursuant to Response and Recovery Policy 9521.3.

HSA submitted a second appeal on December 31, 2001, stating that the music library should be considered on a stand-alone basis. If not considered on a stand-alone basis, then HSA stated that it believes at least 50% of its long-term leased facility is used for library- related purposes. Finally, it added that if its first two requests were rejected, it requested that it be considered based on the operating assets used for eligible purposes instead of square footage of leased space. The State supported HSA’s appeal, stating that the music library is a public library and should be considered for Public Assistance funding.

HSA asked for consideration of the library as a separate entity pursuant to Paragraph 7.C.3 of Response and Recovery Policy 9521.3. This paragraph refers to otherwise eligible uses within religious institutions. Paragraph 7.C.1 of the policy must be met before Paragraph 7.C.3 can be considered. The library cannot be considered on its own merits because it does not occupy more than 50% of the leased space as required by Paragraph 7.C.1 of Response and Recovery Policy 9521.3.

HSA stated that when the space that senior officials of the symphony use to discuss selections and acquisitions for the library and space that the financial staff uses are considered, the total space for library operations exceeds 50% of the total leased space. These staffs do not appear to perform exclusively library-related functions. Instead, they provide general support to the symphony. Therefore, the space they use is not considered a part of the library for purposes of determining eligibility.

HSA also requested that it be considered based on the operating assets used for eligible purposes instead of square footage of leased space. FEMA Response and Recovery Policy 9521.3 does not list operating assets as a criteria for consideration of eligibility. According to this policy, “Space, time, and number of persons involved in the eligible purposes/missions of an organization are parameters in determining if a facility is eligible.”

Finally, 44 CFR §206.221 requires that all private nonprofit facilities be open to the general public. HSA states that the library is available for use of “qualified” members of the general public. It also states that “Houstonians who have legitimate musical inquiries” may use the facility. These terms indicate the facility is not open to the general public as required by 44 CFR §206.221. Based on the above reasons, I am denying the appeal.

Please inform the applicant of my decision. My determination constitutes the final decision on this matter as set forth in 44 CFR §206.206.

Sincerely,
/S/
John R. D'Araujo, Jr.
Assistant Director
Readiness, Response and Recovery Directorate

cc: Ronald Castleman
Regional Director
FEMA Region VI

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