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Safety Inspections

Appeal Brief Appeal Letter

Appeal Brief

DisasterFEMA-1609-DR
ApplicantFlorida Department of Transportation
Appeal TypeSecond
PA ID#000-U03E9-00
PW ID#Project Worksheeet 9146
Date Signed2008-10-14T04:00:00
Citation: FEMA-1609-DR-FL, Florida Department of Transportation, Safety Inspections, Project Worksheet (PW) 9146

Cross-reference: Other Federal Agency; Emergency Protective Measures

Summary: Following Hurricane Wilma, the Florida Department of Transportation
(Applicant) conducted structural inspections of bridges, signs, and lighting
systems in Broward, Indian River, Martin, Palm Beach, and St. Lucie counties
known as district four. The Applicant seeks reimbursement totaling $1,950,000.
FEMA determined that the work was not eligible because the work falls under the responsibility of the Federal Highway Administration (FHWA) and because random damage surveys/inspections are not eligible for FEMA reimbursement. As a result, FEMA obligated PW 9146 for zero dollars.
The Applicant filed a first appeal dated August 13, 2007, stating that the inspections were not eligible for reimbursement under FHWA Emergency Relief (ER) funding, but the work is eligible for Public Assistance reimbursement because the inspections were performed as emergency protective measures to establish if the condition of the facilities posed an immediate threat to public safety. On February 28, 2008, the Regional Administrator denied the first appeal because the Applicant did not establish that the work in question met the definition of emergency work as defined under 44 CFR §206.201(b), “. . . work which must be done immediately to save lives and to protect improved property and public health and safety, or to avert or lessen the threat of a major disaster.” The Regional Administrator noted that the inspections were performed throughout an eight-month period at which time the roadways remained opened to the traveling public indicating that there was no immediate threat to pubic safety. The Applicant submitted its second appeal in a letter dated May 27, 2008, and reiterates its position presented in the first appeal, specifically, that the inspections were conducted to eliminate an immediate threat and that FEMA may reimburse Applicants for inspections.
Issues: 1. Are the roads part of a Federal-aid road system?
2. Does the work in question meet the definition of emergency work?
Findings: 1. Yes. The roads are under the statutory authority of FHWA.

2. No.

Rationale: 44 CFR §206.225; 44 CFR §206.226(a); 44 CFR §206.201(b)

Appeal Letter

October 14, 2008

W. Craig Fugate
Director
Florida Division of Emergency Management
2555 Shumard Oak Boulevard
Tallahassee, Florida 32399

Re: Second Appeal–Florida Department of Transportation, PA ID 000-U03E9-00,
Safety Inspections, FEMA-1609-DR-FL, Project Worksheet (PW) 9146

Dear Mr. Fugate:

This is in response to your letter dated May 27, 2008, which transmitted the referenced second appeal on behalf of the Florida Department of Transportation (Applicant). The Applicant is appealing the Department of Homeland Security’s Federal Emergency Management Agency’s (FEMA) denial of funding for inspections of bridges, signs, and lighting systems in Broward, Indian River, Martin, Palm Beach, and St. Lucie counties, collectively known as District Four.

Following Hurricane Wilma, the Applicant conducted structural safety inspections of bridges, signs, and lighting systems throughout District Four. On June 13, 2006, FEMA prepared PW 9146 for $1,950,000. On August 15, 2006, FEMA determined that the work was not eligible for Public Assistance funding because the work was the responsibility of the Federal Highway Administration (FHWA) and because damage surveys are not eligible for FEMA reimbursement.

The Applicant filed a first appeal dated August 13, 2007, stating that the inspections were not eligible for reimbursement under FHWA Emergency Relief (ER) funding, but the work was eligible for Public Assistance reimbursement because the inspections were performed as emergency protective measures to establish if the condition of the facilities posed an immediate threat to public safety. In a letter dated February 28, 2008, FEMA’s Regional Administrator denied the first appeal because the Applicant did not establish that the work in question met the definition of emergency work as defined under 44 CFR §206.201(b), “. . . work which must be done immediately to save lives and to protect improved property and public health and safety, or to avert or lessen the threat of a major disaster.” The Regional Administrator noted that the inspections were performed throughout an eight-month period during which time the roadways remained opened to the traveling public, indicating that there was no immediate threat to public safety. Consequently, the Regional Administrator concluded that these inspections were, in fact, damage assessments used to determine the location and nature of work necessary to make repairs to the damaged facilities.
On May 27, 2008, the Applicant argues in its second appeal that the Public Assistance program regularly reimburses for Federal Aid roads citing debris removal operations. The Applicant also notes that the FHWA ER manual specifically excludes safety as a justification for emergency repair eligibility; construction safety inspections are not random surveys; the inspections were required by state and Federal laws; and the work should be an eligible emergency protective measure under FEMA regulations and policy.
The Applicant performed safety inspections on FHWA system roads over an eight-month period following the disaster. FEMA does not fund the inspection or repair of damages to FHWA system roads and bridges. Based on review of all information submitted with the appeal, I have determined that the Regional Administrator’s decision on the first appeal is consistent with program statute and policies. Therefore, the appeal is denied.

Please inform the Applicant of my decision. This determination is the final decision on this matter pursuant to 44 CFR §206.206.

Sincerely,
/s/
Carlos J. Castillo
Assistant Administrator
Disaster Assistance Directorate

cc: Major P. May
Regional Administrator
Region IV