Immediate Threat

Appeal Brief Appeal Letter Appeal Analysis

Appeal Brief

Disaster4480
ApplicantCity of White Plains
Appeal TypeSecond
PA ID#119-81677-00
PW ID#GMP 162163
Date Signed2022-09-27T16:00:00

Summary Paragraph

In response to the coronavirus (COVID-19) pandemic, the City of White Plains (Applicant) requested Public Assistance (PA) funding for disinfecting costs, equipment and supplies, plastic barriers, social distancing signs, emergency order advertisements, and portable toilet rentals.  FEMA issued a Determination Memorandum denying $19,731.80 for emergency order advertisements, portable toilet rentals, and certain disinfecting costs.  FEMA found that the Applicant did not demonstrate that the denied items were used to perform eligible emergency protective measures.  The Applicant appealed $15,837.70 of FEMA’s denied funding for the emergency order advertisements, the portable toilet rentals, and for certain disinfecting costs.  The New York State Division of Homeland Security and Emergency Services (Recipient) supported the Applicant’s appeal.  The FEMA Region II Regional Administrator (RA) partially granted the appeal, finding that the advertisements were eligible but found that the portable toilet rentals were not eligible under FEMA Policy, Coronavirus (COVID-19) Pandemic: Safe Opening and Operation Work Eligible for Public Assistance (Interim) (Version 2).  The RA remanded the issue of the disinfecting costs to the FEMA Joint Field Office for review.  The Applicant submitted its second appeal, disputing the denial of $7,364.38 for the portable toilet rentals.  The Applicant states that these rentals were necessary to safely open and operate its facilities.  The Recipient supported the Applicant’s appeal. 

Authorities

  • Stafford Act § 403(a)(3).
  • 44 C.F.R. §§ 206.223(a)(1), 206.225(a).
  • PAPPG, at 19, 57.
  • FP 104-21-0003, at 4-5.
  • Fact Sheet, Eligible Emergency Protective Measures, at 1-2.

Headnotes

Conclusion

The Applicant did not demonstrate the work associated with the costs was an eligible emergency protective measure.  Therefore, this appeal is denied.

 

Appeal Letter

Rayana Gonzales

Deputy Director for Disaster Recovery Programs                

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 – City of White Plains, PA ID: 119-81677-00, FEMA-4480-DR-NY, Grants Manager Project 162163, Immediate Threat

 

 

Dear Ms. Gonzales:

This is in response to the letter from your office dated June 29, 2022, which transmitted the referenced second appeal on behalf of the City of White Plains (Applicant).  The Applicant is appealing the U.S. Department of Homeland Security’s Federal Emergency Management Agency’s denial of $7,364.38 in Public Assistance funding for the rentals of portable toilets, stating they were necessary to safely open and operate certain facilities.

As explained in the enclosed analysis, I have determined the Applicant did not demonstrate the work associated with the costs was an eligible emergency protective measure.  Therefore, this appeal is denied.  

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/

                                                                           Ana Montero

                                                                          Division Director

                                                                          Public Assistance Division

 

Enclosure

cc:  David Warrington  

Regional Administrator

FEMA Region II

Appeal Analysis

Background

During the incident period of January 20, 2020 and continuing, the coronavirus (COVID-19) pandemic resulted in a major disaster declaration on March 20, 2020 for the State of New York.  The City of White Plains (Applicant) requested $49,408.24 in funding for disinfecting costs, equipment and supplies, plastic barriers, social distancing signs, emergency order advertisements, and portable toilet rentals.[1]  On August 26, 2021, FEMA issued a Determination Memorandum denying $19,731.80 for emergency order advertisements, portable toilet rentals, and certain disinfecting costs.  FEMA found that the Applicant did not demonstrate that the denied items were used to perform eligible emergency protective measures under FEMA’s Public Assistance (PA) Program.

First Appeal

On October 5, 2021, the Applicant appealed $15,837.70 of FEMA’s denied funding for emergency order advertisements ($5,778.00), portable toilet rentals ($7,364.38), and some of the previously denied disinfectant items ($2,695.32).  The Applicant emphasized the work addressed an immediate threat to public health and safety.  Regarding the portable toilet rentals, the Applicant asserted that they were needed at certain facilities to provide social distancing as that was not possible in the existing restrooms. 

On December 13, 2021, the New York State Division of Homeland Security and Emergency Services (Recipient) forwarded the Applicant’s appeal with a letter of support.  The Recipient reiterated the Applicant’s arguments and noted that the measures taken were consistent with the emergency protective measures listed in FEMA Policy, Coronavirus (COVID-19) Pandemic: Safe Opening and Operation Work Eligible for Public Assistance (O&O Policy).[2]  

The FEMA Region II Regional Administrator (RA) partially approved the appeal finding that the emergency order advertisements were eligible emergency protective measures.  However, FEMA found that the rentals of portable toilets were not eligible emergency protective measures under FEMA’s O&O Policy.  The RA remanded the issue of the disinfecting costs to the FEMA Joint Field Office for review. 

Second Appeal

On May 5, 2022, the Applicant submitted its second appeal, disputing the denial of $7,364.38 in costs for the portable toilet rentals.  The Applicant states that these rentals were necessary to safely open and operate certain facilities providing social distancing.  The applicant references Centers for Disease Control and Prevention (CDC) guidance[3] and FEMA’s Fact Sheet Coronavirus (COVID-19) Pandemic: Eligible Emergency Protective Measures[4] in support to show costs for the portable toilet rentals were eligible under FEMA’s policy.

On June 29, 2022, the Recipient transmitted the Applicant’s second appeal along with its letter of support.  The Recipient reiterates the Applicant’s claim that the portable toilet rentals were needed to open and operate its facilities safely providing social distancing to mitigate the spread of COVID-19.

 

Discussion

FEMA is authorized to provide emergency protective measures to save lives and protect public health and safety.[5]  All work must be required as a direct result of the declared incident and, for COVID-19 declarations, must be done in accordance with the guidance of or at the direction of appropriate public health officials.[6]  FEMA may provide assistance to eligible PA applicants for emergency protective measures implemented to reduce immediate threats to public health and safety,[7] as well as certain measures to facilitate the safe opening and operation of eligible facilities in response to COVID-19 declared events.[8] 

The Applicant notes that the rentals of portable toilets were necessary to safely open and operate certain facilities while allowing for social distancing.  However, the Applicant has not demonstrated that this activity was associated with eligible emergency work under FEMA’s policies.  The O&O Policy limits eligible emergency protective measures in response to COVID-19 to specific categories.  The rental of portable toilets is not an eligible emergency protective measure that is included under any of the categories in this policy or under other FEMA COVID-19 or general PA policies.  Furthermore, the CDC does not recommend this measure as a method to limit the spread of COVID-19.  Therefore, the portable toilet rentals and associated costs are not eligible for PA funding.

 

Conclusion

The Applicant did not demonstrate the work associated with the costs was an eligible emergency protective measure.  Therefore, this appeal is denied.

 

 

[1] All work and costs associated with the contracted services for portable toilet rentals were incurred from

July 1, 2020 to August 25, 2020.

[2] FEMA Policy 104-21-0003, Coronavirus (COVID-19) Pandemic: Safe Opening and Operation Work Eligible for Public Assistance (Interim) (Version 2) (Sept. 8, 2021) [hereinafter O&O Policy].

[3] Centers for Disease Control and Prevention, Interim Guidance for Businesses and Employers Responding to Coronavirus Disease 2019 (COVID-19) (May 2020).

[4] Fact Sheet, Coronavirus (COVID-19) Pandemic: Eligible Emergency Protective Measures (Mar. 19, 2020) [hereinafter Fact Sheet, Eligible Emergency Protective Measures]. 

[5] Robert T. Stafford Disaster Relief and Emergency Assistance Act § 403(a)(3), Title 42, United States Code § 5170b(a)(3) (2018); Title 44 Code of Federal Regulations (44 C.F.R.) § 206.225(a) (2019).

[6] 44 C.F.R. § 206.223(a)(1); Public Assistance Program and Policy Guide, FP 104-009-2, at 19 (Apr. 1, 2018) [hereinafter PAPPG]; O&O Policy, at 4-5; Fact Sheet, Eligible Emergency Protective Measures, at 1-2.

[7] Fact Sheet, Eligible Emergency Protective Measures, at 1-2; PAPPG, at 57.  As provided in the Fact Sheet, Eligible Emergency Protective Measures, FEMA may provide assistance for emergency protective measures that help manage, control, and reduce immediate threats to public health and safety: emergency operation center costs; training specific to the declared event; disinfection of eligible public facilities; and certain technical assistance to state, tribal, territorial and local governments.

[8] O&O Policy, at 4-5.  Eligible work is limited to: (1) purchasing and distributing face masks and personal protective equipment; (2) cleaning and disinfection, including the purchase of supplies in excess of an applicant’s regularly budgeted costs; (3) performing COVID-19 diagnostic testing; (4) screening and temperature scanning, including the purchase and distribution of hand-held temperature measuring devices or temperature screening equipment; and (5) purchasing and installing physical barriers, including plexiglass barriers and signage to support social distancing.  Id., at 4-5.

Last updated September 28, 2022