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Second Appeal Analysis
PA ID# 107-99107-00; Tioga County
PW ID# N/A; Time Extension – Request for Public Assistance
Winter Storm Stella caused damage in New York State from March 14 to March 15, 2017. As a result, the President declared a disaster on July 12, 2017, and Tioga County, New York (Applicant) was included in the major disaster declaration area that was authorized for Public Assistance (PA). The original deadline for the New York State Department of Homeland Security and Emergency Services (Recipient) to submit a Request for Public Assistance (RPA) was August 11, 2017, but FEMA extended the deadline to August 26, 2017. On April 6, 2017, a Preliminary Damage Assessment meeting was held at the office of the Applicant’s Commissioner of the Public Works Department (Commissioner). By letter dated October 10, 2017, the Applicant submitted its RPA to the Recipient. To explain the late submittal, the Applicant stated that although the Commissioner had attended the Preliminary Damage Assessment meeting held at his office, there had been Kickoff Meetings and Applicant Briefings without his knowledge. The Applicant acknowledged that it was possible that lines of communication had broken down due to the retirement of the Applicant’s long-term emergency management employee. In addition, the Applicant noted that it suffered from storms that past July and needed to collect information for an anticipated disaster declaration for that event as well. As evidence that the Commissioner had been in attendance at the April 6, 2017 Preliminary Damage Assessment meeting, the Applicant submitted the meeting sign-in sheet showing the Commissioner’s name and contact information. The Applicant also attached its completed FEMA form 90-49, the standard RPA submission form.
The Recipient submitted the Applicant’s RPA to FEMA via letter dated October 11, 2017. The Recipient stated that according to the Commissioner, the Applicant had not been informed of the Kickoff Meetings or the Applicant Briefings, but again acknowledged that the Commissioner believed it could have been due to the retirement of the long-term emergency management employee. FEMA denied the Applicant’s RPA on November 6, 2017, finding that the Applicant had not provided an extenuating circumstance beyond its control that would excuse the delay
In a letter dated December 19, 2017, the Applicant submitted its first appeal letter, attaching the same documents from its RPA submission. The Applicant renewed its argument that it had held the Preliminary Damage Assessment meeting at its office and assisted other applicants with the process, thus implying that FEMA or the Recipient should have contacted the Commissioner about RPA submission requirements. The Applicant stated that no representative of the Recipient or FEMA contacted the Commissioner following the Preliminary Damage Assessment meeting to inform the Commissioner that he needed to submit an RPA. The Recipient forwarded the Applicant’s first appeal to FEMA via letter dated December 20, 2017. The Recipient stated that during its review of the appeal, it determined that personnel changes led to miscommunications between the Applicant’s departments. Moreover, the Recipient argued that including the Applicant would not delay completion of projects under the disaster as a whole because at that time, FEMA had obligated funding for less than 50% of projects.
FEMA issued a Final Request for Information (RFI) dated January 23, 2018. In the Final RFI, FEMA stated that the administrative record did not support the Applicant’s position that FEMA incorrectly denied the RPA, noting that it was unaware of any information that could support the position that the RPA should be accepted. FEMA also requested a copy of the Applicant’s first appeal letter, which FEMA stated the Recipient had not included in its submission. The Recipient responded to the Final RFI via letter dated February 1, 2018, including the Applicant’s first appeal letter as part of its response. In addition, the Recipient renewed the statements it had made in its first appeal letter.
FEMA denied the Applicant’s first appeal on March 19, 2018. The Regional Administrator (RA) found that the retirement of an employee, and other personnel issues, were directly within the Applicant’s ability to address and therefore not an extenuating circumstance outside of the Applicant’s control. Moreover, the RA noted that neither the Applicant nor the Recipient had provided documentation or information to support that the Applicant did not receive information concerning RPA requirements or submission timeframes. Thus, the RA found that the Applicant and Recipient had not presented any extenuating circumstances beyond the Applicant’s or Recipient’s control that would justify the delay under Title 44 Code of Federal Regulations (44 C.F.R.) § 206.202(f)(2).
The Applicant submitted its second appeal by letter dated May 7, 2018. On second appeal, the Applicant accepts the RA’s determination that the retirement of the Applicant’s long term employee does not qualify as an extenuating circumstance outside of the Applicant’s control. However, the Applicant argues that FEMA did not address its contention on first appeal that no one from the Recipient or FEMA had contacted the Commissioner to inform him that he needed to submit an RPA. Again, the Applicant notes that the Preliminary Damage Assessment meeting was held in the Commissioner’s office and that because of this, the Applicant had reason to believe that FEMA or the Recipient “would have engaged in their usual dialogue with [the Applicant] about the event’s impact and the sufficiency of [the Applicant’s] paperwork.” Furthermore, the Applicant argues that prior disasters had led the Applicant to expect multiple contacts from the Recipient throughout the process, but it did not occur for this disaster. The Applicant contends that the Recipient and FEMA not contacting the Applicant led to the delay in submitting the RPA.
The Recipient forwarded the Applicant’s second appeal via letter dated June 1, 2018. In the letter, the Recipient renews the statements it made in its first appeal letter. In addition, the Recipient includes a memorandum in support dated May 11, 2018. The Recipient states in its memorandum that the Applicant submitted the RPA when it discovered there was no Kickoff Meeting scheduled. In addition, the Recipient notes that the Applicant’s Briefing was scheduled to take place on August 10, 2017, within the Applicant’s emergency management office, and that the retirement of the long-term emergency management employee affected the timeliness of the RPA submission. The Recipient states that this satisfies the requirements of 44 C.F.R. § 206.202(f)(2), and that because the damages incurred are otherwise eligible, FEMA should accept the RPA.
Request for Public Assistance – Time Extension
Recipients serve as the grant administrator for funding administered under the PA program. Recipients also are tasked with ensuring that all potential applicants are aware of available PA, as well as requirements for submitting necessary documentation for grant awards. In addition, Recipients must submit applicant RPAs to FEMA within 30 days after designation of the disaster areas. FEMA may extend this deadline if the recipient demonstrates, in writing, justification for a delay based on extenuating circumstances beyond the recipient’s or applicant’s control. However, because it is necessary to collaborate with applicants early in the application process, FEMA expects that recipients will collect RPAs as soon as possible after the area designation or after the applicant briefing. Successful prior applications may weigh against an applicant claiming that it was not informed of RPA submission requirements.
Although the Applicant withdrew the argument on second appeal, the Recipient still contends that the retirement of the Applicant’s long-term emergency management employee contributed to the delay in submitting its RPA. The Recipient maintains that this qualifies under 44 C.F.R. § 206.202(f)(2) as an extenuating circumstance that justifies extending the time limitation. As an initial matter, neither the Applicant nor the Recipient have stated with any specificity, either on first or second appeal, how the retirement of this employee could have contributed to the delay, other than the Recipient stating that it affected communication between the Applicant’s departments. Neither the Applicant nor the Recipient have stated when the retirement occurred; whether it was before or after the Preliminary Damage Assessment meeting, before or after the RPA submission deadline, or at some other relevant timeframe. Furthermore, as the RA pointed out on first appeal, this is not an extenuating circumstance beyond the Applicant’s control. Personnel issues are directly within the Applicant’s control, and the Applicant had several months after the April 6, 2017, Preliminary Damage Assessment meeting to submit a timely RPA.
Moreover, the Applicant argues that its experience in prior disasters led it to believe that the Recipient or FEMA would contact the Applicant regarding documentation and application deadlines. Yet this same prior experience would have made the Applicant aware of requisite application procedures. Indeed, the Applicant has submitted RPAs successfully for prior disasters. Additionally, the Applicant previously managed the retirement of a long-term employee/point of contact and was able to notify the Recipient of the change, as well as provide additional contacts for the duration of its projects.
Furthermore, the Recipient is tasked with informing the Applicant about available PA and any procedural requirements, not FEMA. The Recipient must collect RPAs and submit them timely, and FEMA expects the Recipient to do this as soon as possible. The Recipient did not do so in this case.
Neither the Applicant nor the Recipient have demonstrated that an extenuating circumstance, beyond either the Recipient’s or the Applicant’s control, would have excused the delayed RPA submission. Therefore, the Applicant’s second appeal is denied.
 This information was included in a FEMA handout that listed all deadlines for the disaster, although it is not clear whether or not the Applicant received the handout.
 The Commissioner was the Applicant’s point of contact for this disaster.
 There are two identical denial letters in the administrative record: one dated November 6, 2017, and one dated November 13, 2017.
 Letter from Comm’r, Tioga Cty. Dep’t of Pub. Works, to Disaster Assistance Mgr., Pub. Assistance Program, N.Y. State Div. of Homeland Sec. and Emergency Serv., at 1 (May 7, 2018) [hereinafter Applicant’s Second Appeal Letter] (“The FEMA first appeal rejection letter states that FEMA cannot accept the retirement of our long term Emergency Management Officer as an extenuating circumstance. I accept that decision but the letter fails to address the last sentence in the first paragraph of our appeal letter.”).
 Applicant’s Second Appeal Letter, at 1.
 Title 44 Code of Federal Regulations (44 C.F.R.) § 206.202(b) (2016); FEMA Second Appeal Analysis, Milford Redev. and Hous. P’ship, FEMA-4087-DR-CT, at 3 (Dec. 4, 2013).
 44 C.F.R. § 206.202(b).
 Pub. Assistance Program and Policy Guide, FP-104-009-2, at 124 (Jan. 1, 2016).
 Milford Redev. and Hous. P’ship, FEMA-4087-DR-CT, at 1.
 In its second appeal, the Applicant references disasters 1650, 1670, 1993, and 4031 as the basis for the Applicant’s expectations for this disaster. Thus, it is not clear how the retirement of the employee at issue in this case would have caused such a disturbance within the Applicant’s operations as to cause a delay in submitting the RPA.
 E-mail from Chief Accountant, Tioga Cty., to Representative, DHSES (Mar. 17, 2015, 1348 EST) (“We need to make a change and replace . . . (Public Works Commissioner) as the applicant or agent for Tioga County, NY. [He] will be retiring from our county at the end of this month. . . . We are still in the process of completing several FEMA related projects that he is currently the applicant for. My name and contact information is below: (New Applicant/Agent) . . . My understanding is we may also want to have an alternative or secondary person named for our county as well. His information is below . . . .”).