Appeal Timeliness

Appeal Brief Appeal Letter Appeal Analysis

Appeal Brief

DisasterFEMA-4085
ApplicantGoshen Historic Track Inc
Appeal TypeSecond
PA ID#071-UIQ6B-00,
PW ID#RPA
Date Signed2018-01-25T00:00:00
Conclusion:  The New York State Division of Homeland Security and Emergency Services (Grantee) did not submit Goshen Historic Track Inc.’s second appeal within the 60-day timeframe pursuant to 44 C.F.R. § 206.206(c)(2).  Accordingly, the appeal is denied.
 
Summary Paragraph
Goshen Historic Track Inc. (Applicant) operates the Goshen Historic Track (Facility) located in Goshen, New York.  During the incident period from October 27 to November 9, 2012, Hurricane Sandy caused damage to the Facility.  On December 9, 2012, the Applicant  sought Public Assistance (PA) funding from FEMA claiming eligibility as a private non-profit (PNP).  FEMA denied the request after determining the Facility was ineligible because it had a recreational purpose.  On September 18, 2013, the Grantee appealed the denial on behalf of the Applicant, and argued the Facility was an eligible museum made up of historic buildings.  The FEMA Region II Regional Administrator (RA) denied the appeal finding that the Applicant’s primary purpose, as established by its website and corporate bylaws, was operating the Facility for horse racing and training.  Accordingly, the RA determined the Facility was primarily used for recreational purposes and therefore ineligible for PA.  On May 26, 2016, the Applicant submitted a second appeal to the Grantee, arguing (1) its Facility is a living museum with a primary purpose to preserve and exhibit a collection of historic buildings, and (2) FEMA erred by applying the primary use rule because the rule only applies to mixed use facilities, not museums.  On second appeal, the Applicant noted $155,000.00 in disaster-related damage to its grandstand and historic Arden barn.  The Grantee forwarded the Applicant’s second appeal to the RA on January 25, 2017.
 
Authorities and Second Appeals
  • Stafford Act § 423.
  • 44 C.F.R. § 206.206(c)(1)-(2).
  • St. Thomas Univ. FEMA-1609-DR-FL, at 3.
  • Fla. Dep’t of Transp., FEMA-4068-DR-FL, at 3-4.  
 
Headnotes
  • The Stafford Act and 44 C.F.R. § 206.206(c) requires that applicants file an appeal with the grantee within 60 days after receipt of notice of the action that is to be appealed, at which point the grantee must forward the appeal, along with a written recommendation, to the RA within 60 days.
  • Failure by either the applicant or the grantee to comply with these requirements renders the appeal untimely and the applicant’s appeal rights lapse.
    • The Grantee submitted the Applicant’s first appeal to FEMA more than 8 months after receipt.  The Grantee did not submit the Applicant’s first appeal within the 60-day timeframe.
    • Due to the Grantee’s failure to comply with 44 C.F.R. § 206.206(c), the Applicant’s appeal rights lapsed.
 
 

 

Appeal Letter

Barbara Lee Steigerwald
Deputy Commissioner
Alternate Governor’s Authorized Representative
New York State Division of Homeland Security and Emergency Services
1220 Washington Avenue
Building 7A, 4th Floor
Albany, NY 12242
 
Re:  Second Appeal – Goshen Historic Track Inc., PA ID 071-UIQ6B-00,
FEMA-4085-DR-NY, Request for Public Assistance (RPA) 938 – Appeal Timeliness
 
Dear Ms. Steigerwald:
 
This is in response to a letter from your office dated January 25, 2017, which transmitted the referenced second appeal on behalf of Goshen Historic Track Inc. (Applicant).  The Applicant is appealing the Department of Homeland Security’s Federal Emergency Management Agency’s (FEMA) denial of its RPA in the amount of $155,000.00.
 
As explained in the enclosed analysis, I have determined that the Applicant’s second appeal is untimely under Title 44 of the Code of Federal Regulations (44 C.F.R.) § 206.206(c)(2) because it was not forwarded within the required 60-day timeframe.  Accordingly, I am denying this appeal.
 
Please inform the Applicant of my decision.  This determination is the final decision on this matter pursuant to 44 C.F.R. § 206.206, Appeals.
 
Sincerely,
 
   /S/
 
Alex Amparo
Assistant Administrator
Recovery Directorate
 
Enclosure
 
cc:  Thomas Von Essen  
Regional Administrator
FEMA Region II
 

Appeal Analysis

Background
Goshen Historic Track Inc. (Applicant), a New York domestic not-for-profit corporation, operates the Goshen Historic Track (Facility), which is located in Goshen, Orange County, New York.  Hurricane Sandy impacted the Facility from October 27 to November 9, 2012.  On December 9, 2012, the Applicant  sought Public Assistance (PA) funding from FEMA through a Request for Public Assistance (RPA), claiming eligibility as a private non-profit (PNP).[1]  In analyzing the RPA, FEMA reviewed the Applicant’s corporate bylaws and other documentation and concluded that the Facility’s primary purpose was recreational horse racing and training.  FEMA determined the Facility was a recreational facility and therefore not eligible.  FEMA denied the RPA through a January 26, 2013 e-mail to the New York State Division of Homeland Security and Emergency Services (Grantee). 
 
First Appeal
On September 18, 2013, the Grantee submitted an appeal of the denial on behalf of the Applicant.[2]  The Grantee contends FEMA incorrectly categorized the Facility as recreational, arguing it is eligible as a museum because it is made up of historic buildings.  To support this claim, it provided additional documentation establishing historical characteristics of the Facility’s various buildings.
 
The FEMA Region II Regional Administrator (RA) sent a Final Request for Information (RFI) on April 1, 2015, seeking documentation establishing the Applicant operates a PNP museum.  Specifically, the RA sought documentation showing the percentage of the Facility used as a museum and a list of buildings exhibiting a documented collection to the general public. 
 
The Applicant responded on May 22, 2015, arguing that 90 percent of the Facility is a living museum dedicated to keeping the story of harness racing alive.  To support this argument, the Applicant provided pictures of various buildings on the Facility’s grounds, described the activities taking place at those buildings, and noted that the buildings are open to the public.  Additionally, the Applicant submitted copies of placards which facilitate self-guided tours of the Facility. 
 
The RA denied the first appeal on April 1, 2016.  The RA determined that the Applicant’s primary purpose, as established by its website and corporate bylaws, was operating the Facility for horse racing and training.  As such, the Facility was principally recreational in nature and not eligible for PA funding.  The RA also applied the primary use rule outlined in DAP9521.3 Private Nonprofit (PNP) Facility Eligibility, which requires over 50 percent of a building’s space to be dedicated to an eligible purpose to be considered eligible for PA funding.  In applying this rule, the RA found the Facility ineligible because the actual racetrack itself took up more than 50 percent of the Facility’s space and had a non-eligible purpose, horse racing.  The RA also noted that the Applicant failed to demonstrate the percentage of the Facility used as a museum nor the existence of a documented historical collection displayed at the Facility.
 
Second Appeal
On May 26, 2016, the Applicant submitted a second appeal to the Grantee.  The Applicant argues its Facility is a living museum with the primary purpose of preserving and exhibiting a collection of historic artifacts and buildings to the general public.  In response to the RA’s finding that the racetrack takes up more than 50 percent of the Facility, the Applicant states the track is not part of the historic collection as it is not preserved to historical standards.  Accordingly, the Applicant argues FEMA erred in applying the primary use rule because the rule applies only to mixed-use facilities and the Facility’s one primary purpose is that of a museum.  The Applicant also noted its Grandstand and historic Arden Barn sustained $155,000.00 in damage.
 
The Grantee forwarded the second appeal to FEMA on January 25, 2017, and argues that FEMA should consider the amount of time the Facility is used as a museum not the amount of space.  The Grantee asserts the Facility’s primary use is that of a museum open to the public on a day to day basis.  Additionally, the Grantee contends DAP9521.2 Private Nonprofit (PNP) Museum Eligibility specifically recognizes historic museum buildings as eligible for PA funding. 
 
Discussion
The Robert T. Stafford Disaster Relief and Emergency Assistance Act of 1988 (Stafford Act) provides that “[a]ny decision regarding eligibility for, from, or amount of assistance under this title may be appealed within 60 days after the date on which the applicant for such assistance is notified of the award or denial of award of such assistance.”[3]  FEMA’s implementing regulations require that applicants file an appeal with the grantee within 60 days after receipt of notice of the action that is to be appealed, at which point the grantee must forward the appeal, along with a written recommendation, to the RA within 60 days.[4]  Failure by either the applicant or the grantee to comply with these requirements renders the appeal untimely and the applicant’s appeal rights lapse.[5]  Neither the Stafford Act nor its implementation regulations authorize FEMA to grant time extensions for filing appeals.[6]
 
Here, the Applicant submitted its second appeal to the Grantee on May 26, 2016,[7] and the Grantee received it on June 2, 2016.[8]  Federal regulations afford the Grantee 60 days to forward the first appeal to FEMA. The Grantee did not do so until January 25, 2017, approximately 8 months later.[9]  As the Grantee forwarded the second appeal beyond the 60-day timeframe stipulated by 44 C.F.R. § 206.206(c)(2), the submission is untimely.
 
Conclusion
The Applicant’s second appeal is untimely.  Accordingly, the second appeal is denied.
 
[1] The Applicant’s RPA submission did not describe damages and mentions only that barns were damaged.  The Applicant did not provide more description of damages until its second appeal submission, when it asserted it suffered $155,000.00 in damage to its Historic Arden Barn and Steel Grandstand.  
[2] In its first appeal submission, the Grantee notes receipt of a first appeal from the Applicant and states the Applicant’s appeal documentation is enclosed.  However, the Grantee’s submission did not include a copy of an appeal letter.    
[3] The Robert T. Stafford Disaster Relief and Emergency Assistance Act of 1988, Pub. L. No. 93-288 § 423, 42 U.S.C. § 5189a(a) (2006).
[4] Title 44 Code of Federal Regulations (44 C.F.R.) §§ 206.206(c)(1)–(2) (2012).
[5] FEMA Second Appeal Analysis, Fla. Dep’t of Transp., FEMA-4068-DR-FL, at 3-4 (Aug. 5, 2016).
[6] FEMA Second Appeal Analysis, St. Thomas Univ., FEMA-1609-DR-FL, at 3 (June 8, 2017).
[7] Letter from Pres., Goshen Historic Track Inc., to Alternate Governor’s Authorized Representative, N.Y. Div. Homeland Sec. and Emergency Servs. (May. 26, 2016) (date stamped as received on June 2, 2016).
[8] Letter from Alternate Governor’s Authorized Representative, N.Y. Div. Homeland Sec. and Emergency Servs., Acting Reg’l Adm. (Jan. 25, 2017).
[9] Id. (displaying a date stamp showing FEMA Region II received the Grantee’s second appeal submission on February 7, 2017); see also  Memorandum from Acting Reg’l Adm’r, FEMA Region II, to Assistant Adm’r, Recovery Directorate, FEMA (Feb. 10, 2017) (confirming that FEMA Region II received the Applicant’s second appeal from the Grantee on February 7, 2017).
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