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Second Appeal Analysis
PA ID# 045-UORUW-00; Hancock County Amateur Radio Association
PW ID# (PW) 767 ; Private Nonprofit, Legal Responsibility, Direct Result of Disaster, Support Documentation
From August 26 through September 11, 2012, Hurricane Isaac impacted the state of Mississippi. On September 7, 2012, the Hancock County Amateur Radio Association (Applicant) applied for Public Assistance (PA). The Applicant is a private nonprofit (PNP) that operates a small radio station. FEMA initially determined that the Applicant was not an eligible PNP. Following an appeal, however, FEMA found that the Applicant was an eligible PNP on June 3, 2014. In notifying the Applicant of its determination, FEMA advised the Applicant that it needed to apply for a loan from the Small Business Administration (SBA) before it could receive PA funding.
FEMA and the Mississippi Emergency Management Agency (Grantee) conducted a kick-off meeting with the Applicant on March 25, 2015, and the Applicant subsequently submitted a list of claimed damaged equipment at an estimated total cost of $110,235.00.
On September 16, 2016, FEMA sent an initial request for information (RFI), seeking documentation to support the Applicant’s claimed damages and estimated costs. FEMA also requested documentation, such as maintenance records, showing the pre-disaster condition of the damaged equipment and details of how the damage occurred. The Applicant responded in a letter dated October 25, 2016, stating that it was requesting an extension of time to complete a damage assessment and seeking clarification on FEMA’s request for maintenance records. It stated that all the equipment on its inventory list was located at the damaged address, and was exposed to wind and salt water causing unreliability over time. It explained that the building had two feet of water and it was unable to relocate essential equipment from the threatening flood waters. It also stated that the station’s main and backup transmitters needed to be replaced, and its tower had suffered wind, water, and rust damage. It added that two vehicles had deteriorated following the disaster and were no longer operable.
To this reply, the Applicant attached a 32-page spreadsheet, with rows identifying equipment, vehicles, and a building. Each had a listed value, which the Applicant stated was within 5% of replacement value. It also listed how each item had been acquired; most showed as donated or purchased, and certain items showed as leased. Finally, it had a column for “status” which showed as either flooded, junk, or unreliable. In total, the spreadsheet had 599 items at a total claimed value of $488,235.00. The largest increases from the Applicant’s prior request were due to the tower valued at $200,000.00, and building damages valued at $27,000.00.
The Applicant also provided an SBA loan denial letter dated October 15, 2012, related to Disaster Loan Application 0004920802. FEMA inquired with the SBA regarding whether the Applicant had applied for an SBA loan. The SBA informed FEMA that Disaster Lona Application 0004920802 was for a home loan application in the name of the Applicant’s president. Certain paperwork had been completed in the Applicant’s name, but no loan application had been submitted in connection with Hurricane Isaac.
On June 9, 2017, FEMA issued a determination memorandum, finding that the Applicant had not shown that it applied for an SBA loan. It also stated that the Applicant had not demonstrated legal responsibility for the repair or replacement of the facility or vehicles listed as damaged. Finally, it stated that the Applicant had not documented that the equipment was in working order prior to the disaster, or that the claimed costs were tied to eligible work. Accordingly, FEMA determined that the Applicant’s claimed damages were ineligible for PA funding. In conjunction with this determination memorandum, FEMA prepared PW 767 with a zero dollar obligation.
The Applicant appealed FEMA’s determination in a letter dated August 19, 2017. The Applicant stated only that it was submitting exhibits that it believed would address the deficiencies identified in the determination memorandum. Included was a copy of certain SBA disaster loan paperwork as well as vehicle titles. The Applicant also submitted additional documentation related to the history and operation of the radio station, but these did not directly bear on the determination memorandum. The Grantee forwarded the Applicant’s appeal on August 25, 2017.
On February 26, 2018, FEMA issued a Final RFI to the Applicant, seeking documentation that the Applicant had actually completed its application for an SBA loan. It also sought documentation showing the building and equipment was the Applicant’s legal responsibility, that all requested items were actively maintained prior to the disaster, what the predisaster condition of the items were, what the precise damage was that was caused by the disaster, what the claimed costs were based upon, and all relevant insurance documentation. The Final RFI also provided an explanation for why it was important for the Applicant to establish precisely what damage was a direct result of the disaster.
The Applicant responded to the Final RFI by providing four CDs, a vehicle insurance policy packet, and an unsigned lease agreement for the building claimed to be damaged. FEMA was able to get photographs from one of the CDs, but the other CDs contained videos that FEMA was unable to play. The photographs were of various items of equipment, people working, and the inside and outside of some buildings. While some photographs showed flooding and damage, it was not clear what photographs were related to which claimed items of damage, and there was no narrative explanation explaining the relevance of individual photos.
On May 24, 2018, FEMA’s Region IV Regional Administrator (RA) determined that the Applicant had still not produced an SBA loan application denial letter, and that this precluded the Applicant from receiving any PA funding regardless of any other eligibility issue. The RA then determined that, while the Applicant had demonstrated legal responsibility for the vehicles, it had not shown legal responsibility for the building because it had not provided a signed lease. For items of equipment that were described as leased, the Applicant had also not provided copies of those leases to establish that it was legally responsible for repair or replacement. Finally, the Applicant had not provided documentation to establish the pre-disaster condition of the requested items. While the Applicant had provided photos, they were unlabeled and not accompanied by an explanation. Moreover, it was not clear when they were taken, as the file properties showed dates back to 2000. With respect to the vehicles, although the Applicant had provided some receipts showing maintenance items such as replacing the tires, the Applicant had not shown what the claimed damage was or established that the disaster caused the damage. Similarly, with the building and equipment, the Applicant had not documented what damage was caused by the disaster. Finally, the Applicant had not provided documentation to substantiate the claimed costs associated with the various items. Accordingly, the RA denied the First Appeal.
In its second appeal, dated July 24, 2018, the Applicant clarifies that the videos that FEMA was unable to play were from the damage assessment and clean up from Hurricane Isaac, as well as volunteers cleaning the building and studio facility. The Applicant attached a signed copy of its building lease.
FEMA may provide PA funding to an eligible PNP only if it has applied for a disaster loan from the SBA, and demonstrates either that the PNP is ineligible for such a loan, or that the PNP has obtained such a loan in the maximum amount for which the SBA determines the facility is eligible and that amount does not cover fully the eligible damage under the PA program.
Here, the SBA loan denial letter that the Applicant provided was for an individual home loan in the name of its president. It provided other SBA loan application documents in the organization’s name, but did not provide a determination letter from the SBA. FEMA inquired with the SBA, and learned that the Applicant initiated, but had not completed an SBA loan application for this disaster. As the RA correctly found, without an SBA disaster loan determination, FEMA may not provide PA funding to the Applicant.
To be eligible for financial assistance, an item of work must be required as the result of the major disaster event and be the legal responsibility of an eligible applicant. The Applicant has the burden to provide documentation to substantiate its appeal.
Here, the Applicant provided a large spreadsheet listing items that it asserted to be damaged, consisting of vehicles, a building, and equipment. It asserted that there was wind and flooding during the event, and that this led to the equipment becoming unreliable over time. It did not provide documentation showing the condition of these items before the disaster or that they were regularly maintained. For the vehicles, it provided receipts showing oil changes and tire replacement, but this was not enough for FEMA to determine what the overall condition of the vehicles was, or what damage was a direct result of the disaster. For the building and equipment, the Applicant provided a number of photographs. These photographs were unexplained, however, and FEMA was unable to determine when they were taken or what was depicted. The pictures also did not provide documentation that FEMA could rely on to ascertain what damage was the direct result of the disaster. The Applicant also did not provide anything to establish a basis for the costs that it was claiming.
Finally, although the Applicant listed certain equipment as leased, it did not provide the applicable leases; thus, FEMA is unable to determine whether the Applicant was legally responsible for the repair or replacement of those items. With respect to the building, it did not provide a signed lease during the first appeal process. While it did provide a signed copy with its second appeal, the Applicant was advised that the administrative record closed when the RA issued the first appeal determination. In any event, even if the Applicant was able to show legal responsibility for the building, it would still not be eligible for funding because it still has not shown what damage was a direct result of the disaster or substantiated its claimed costs.
The Applicant is not eligible to receive PA funding because it did not complete its application for an SBA loan. Moreover, it did not demonstrate what damage was a direct result of the disaster. For certain claimed items, it also did not show legal responsibility. Accordingly, this second appeal is denied.
 FEMA’s communication with the SBA was provided to the Applicant along with the determination memorandum.
 The Applicant also attached two other documents, but they are not relevant to this second appeal.
 Robert T. Stafford Disaster Relief and Emergency Assistance (Stafford) Act § 406(a)(3)(A), 42 U.S.C. § 5172(a)(3)(A) (2012); Public Assistance Guide, FEMA 322, at 13-15 (June 2007).
 Title 44 Code of Federal Regulations (44 C.F.R.) § 206.223(a)(1), (3) (2011).
 FEMA Second Appeal Analysis, Palisades Med. Ctr., FEMA-4086-DR-NJ, at 4 (Mar. 10, 2017).