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Second Appeal Brief
PA ID# 071-U49OE-00; Bethel Missionary Outreach Ministries, Inc.
PW ID# 20042; Timeliness – PNP Facility Eligibility - Legal Responsibility - SBA Loan
Conclusion: The Bethel Missionary Outreach Ministries, Inc.’s (Applicant) leased facility is not eligible for Public Assistance (PA) because the Applicant failed to demonstrate: 1) the primary use for the facility was an eligible activity, 2) it was legally responsible for repairs to the facility; and 3) that its losses exceeded the loan amount received from the Small Business Administration (SBA).
The Applicant requested PA after Hurricane Katrina damaged its rented building and destroyed its equipment. FEMA initially determined the Applicant was an eligible private nonprofit (PNP) organization. FEMA was unable to confirm the primary use of the Facilities and determined they were not eligible for PA. The Applicant appealed this determination and the FEMA Region VI Regional Administrator (RA) denied the appeal because the Applicant did not demonstrate the primary use for the Facilities was an eligible activity. The RA also found the Applicant was not legally responsible for the building and the Applicant did not provide documented justification that its losses exceeded the amount it received from the SBA as a loan. On January 17, 2017, the Applicant appealed the RA’s decision, claiming it never received the first appeal decision and emphasized that FEMA originally found it to be an eligible PNP. The Applicant also claimed its Facilities were open to the public, and that it lost everything in the Hurricane far in excess of what it received in the SBA loan.
Authorities and Second Appeals
- Stafford Act § 406(a)(2).
- 44 C.F.R. §§ 206.206, 206.221(e), 206.222(b), 206.223(a)-(b), 206.226(c)(2).
- PA Guide, at 10, 11, 14, 25, 32-33 (Oct. 1999).
- DAP 9521.3, Private Nonprofit Facility Eligibility, at 2 (May 23, 2003).
- 44 C.F.R. § 206.206 requires appeals to be filed within 60 daysafter the applicant received notice.
- The Applicant filed its second appeal almost 4 years after the Grantee mailed the first Appeal decision to the Applicant’s last known address.
- FEMA’s PA Guide states that “facilities established or primarily used for religious… [or] recreational activities are not eligible” for PA.
- The Applicant was unable to demonstrate its Facilities’ primary use was for an eligible purpose. The record indicates the primary use was for religious services and community recreation.
- Per 44 C.F.R. § 206.223, an eligible applicant must be legally responsible for the repairs caused by the disaster. FEMA’s PA Guide states, “if the PNP were located in a rented facility, repairs to the facility would not be eligible unless the written lease placed such responsibility on the PNP.”
- The Applicant’s lease assigns legal responsibility to the owner for repairs resulting from circumstances beyond the tenant’s control.
- 44 C.F.R. § 206.226(c)(2) states that PNPs that provide other essential services of a governmental nature must first seek a loan from the SBA before requesting PA. Only losses exceeding the SBA loan amount are eligible for PA.
- The Applicant applied for and received a loan from the SBA, but did not demonstrate its losses exceeded the loan amount.