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Second Appeal Brief
PA ID# 000-U03E9-00; Florida Department of Transportation
PW ID# 288; Damage Assessments
Conclusion: The FL Department of Transportation’s (Applicant) second appeal is time barred by 44 C.F.R. § 206.206. In addition, consistent with 44 C.F.R. § 206.225 and FEMA policy, the work completed by the Applicant’s contractor were damage assessments, not emergency work, and therefore, ineligible for PA funding.
In 2008, Tropical Storm Fay caused widespread flooding throughout the Applicant’s District 4 located in southeast Florida. FEMA prepared Project Worksheet (PW) 288 to address bridge inspections conducted by the Applicant’s contractor. FEMA subsequently deemed the work was a damage assessment pursuant to FEMA policy and ineligible for PA funding. In addition, FEMA determined the bridges fell under the purview of the Federal Highway Administration (FHWA); therefore, the Applicant was not legally responsible for them. PW 288 was obligated for zero dollars. In its first appeal, the Applicant requested $48,677.53 in PA funding for labor performed to identify damages resulting from the disaster. The Applicant asserted that it had legal responsibility for inspections on the bridges and the work in PW 288 was eligible emergency work. On May 9, 2013, the Region IV Regional Administrator (RA) denied the first appeal determining the inspections were under the authority of the FHWA. In addition, the RA concluded that the inspections were damage assessments, and the Applicant failed to provide new information to substantiate the eligibility of the work. In its second appeal, the Applicant again asserts that the inspections are eligible emergency work as the intent of them was to reveal damage that may endanger the public. The Applicant also asserts that it was legally responsible for the bridge inspections. The Grantee submitted the Applicant’s undated second appeal via an October 24, 2014 letter.
Authorities and Second Appeals
- 44 C.F.R. § 206.206.
- 44 C.F.R. § 223(a)(3).
- 44 C.F.R. § 206.225(a)(1).
- FEMA DAP 9523.2, Eligibility of Building Safety Inspections Supporting Emergency Work.
- PA Guide, at 55.
- FL Department of Transportation, FEMA-1561-DR-FL (Mar. 23, 2009).
- FL Department of Transportation, FEMA-1609-DR-FL (Sep. 11, 2008).
- Pursuant to 44 C.F.R. § 206.223(a)(3), an item of work must be the legal responsibility of the Applicant to be eligible for PA funding. Facilities owned by other Federal agencies typically are not eligible for PA funding.
- The bridges fell under the FHWA.
- While the Applicant was responsible for routine maintenance inspections, it was not responsible for damage assessments like those performed following Tropical Storm Fay.
- According to 44 C.F.R. § 206.225, FEMA may provide PA funding for eligible emergency work. The PA Guide states that a bridge inspection performed to determine the possibility of damage is not eligible emergency work.
- The work completed by the Applicant’s contractor was an inspection to determine the possibility of bridge damage. As such, it is not eligible.
- The second appeal for FL Department of Transportation, FEMA-1609-DR-FL, states FEMA DAP 9523.2, Eligibility of Building Safety Inspections Supporting Emergency Work, only applies to buildings.
- The Grantee argues that FEMA should apply the rationale in DAP 9532.2 for building safety inspections to the work completed in PW 288, therefore making it eligible emergency work.
As the facilities in PW 288 are bridges, DAP 9523.2 is not applicable.