Immediate Threat

Appeal Brief Appeal Letter Appeal Analysis

Appeal Brief

Disaster3498
ApplicantPassamaquoddy Tribe at Pleasant Point
Appeal TypeSecond
PA ID#000-59635-00
PW ID#GMP 168747/PW 3
Date Signed2022-05-31T16:00:00

Summary Paragraph

As a result of the coronavirus (COVID-19), the President declared a nationwide emergency on March 13, 2020.  Passamaquoddy Tribe at Pleasant Point (Applicant) requested Public Assistance (PA) for costs associated with force account labor (FAL) to provide security and barricading at access points to Pleasant Point Reservation.  FEMA awarded $37,202.23 in costs, but later deobligated funding, concluding that the claimed security work was ineligible for PA because it was not necessary to carry out emergency protective measures, and was not required as a direct result of COVID-19.  The Applicant’s first appeal argued that the security work was an eligible emergency protective measure required as a result of the declared incident and did not constitute an ineligible increased operating cost.  The Applicant also stated that section 705(c) of the Stafford Act barred FEMA from recovering funding.  The Acting FEMA Region I Regional Administrator denied the appeal, finding that the costs were ineligible increased operating costs and determined that FEMA was not barred from deobligating funding.  The Applicant submitted its second appeal reiterating its previously raised arguments.  The Applicant also responded to a Request for Information by providing data that showed its population was vulnerable and explained that the security staff at the checkpoints performed temperature screening, handed out personal protective equipment, and kept contact tracing logs. 

Authorities and Second Appeals

  • Stafford Act § 403(a)(3).
  • 44 C.F.R. §§ 206.223(a)(1), 206.225(a)(3)(i).
  • PAPPG, at 19, 57-58.
  • Fact Sheet, Eligible Emergency Protective Measures, at 1-2.

Headnotes

Conclusion

The Applicant demonstrated the security work was required due to an immediate threat resulting from the declared incident and, accordingly, the FAL costs in the amount of $37,202.23 are eligible for PA funding.  Therefore, this appeal is granted.

Appeal Letter

 

Elizabeth M. Dana

Chief, Passamaquoddy Tribe at Pleasant Point

P.O. Box 343

Perry, ME 04667

 

Re:  Second Appeal – Passamaquoddy Tribe at Pleasant Point, PA ID 000-59635-00,

        FEMA-3498-EM, Grants Manager Project 168747/Project Worksheet 3, Immediate Threat

 

Dear Chief Dana:

This is in response to your letter dated October 25, 2021, which transmitted the referenced second appeal on behalf of Passamaquoddy Tribe at Pleasant Point (Applicant).  The Applicant is appealing the U.S. Department of Homeland Security’s Federal Emergency Management Agency’s denial of funding in the amount of $37,202.23 for costs associated with security and barricading at access points to Pleasant Point Reservation.

As explained in the enclosed analysis, I have determined that the Applicant demonstrated the security work was required due to an immediate threat resulting from the declared incident and, accordingly, the FAL costs in the amount of $37,202.23 are eligible for PA funding.  Therefore, this appeal is granted.  By copy of this letter, I am requesting the Regional Administrator to take appropriate action to implement this determination. 

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:  Lori Ehrlich

Regional Administrator

FEMA Region I

Appeal Analysis

Background

As a result of the coronavirus (COVID-19), the President declared a nationwide emergency on March 13, 2020, with an incident period beginning on January 20, 2020, and continuing.  Passamaquoddy Tribe at Pleasant Point (Applicant) elected to become a Grantee under the Public Assistance (PA) program and executed a FEMA-Tribe Agreement (FEMA-3498-EM) on April 13, 2020.  The Applicant requested reimbursement under the PA program for costs associated with force account labor (FAL) to provide security and barricading at access points to its Tribal land because of “high mortality rates seen in Indian Country nationwide” and “an increasing number of COVID-19 cases erupting in surrounding communities.”[1]  As explained in the project application, the Applicant closed the Tribal land to non-residents and created a security force at border checkpoints on Pleasant Point Reservation.  The Applicant explained that it operated these checkpoints on a 24 hour a day schedule, 7 days a week.[2]  FEMA wrote Grants Manager Project 168747/Project Worksheet 3 for the Applicant’s FAL claimed costs and, on March 12, 2021, awarded $37,202.23. 

On April 2, 2021, FEMA issued a Determination Memorandum, finding that the project was ineligible for PA because the claimed work implemented an ineligible mitigation strategy and was not an emergency protective measure, such as operating a community vaccination center (CVC) or a non-congregate shelter, required as a direct result of COVID-19.  FEMA deobligated all funds for this project on April 22, 2021. 

First Appeal

On May 28, 2021, the Applicant submitted its first appeal and stated that the security work was required as a result of the declared incident and was an eligible emergency protective measure.  The Applicant stated that FEMA’s policies include security and law enforcement as eligible emergency protective measures.  The Applicant also stated that the claimed security work did not constitute an increased cost of operating a facility or providing a service because the work represented new costs, which included checkpoints, barricades, and security, to prohibit non-Tribal members from entering Tribal land.  The Applicant asserted that these costs were necessary as the Tribe was forced to take extraordinary measures to protect its vulnerable population from the rapid spread of COVID-19.  Lastly, the Applicant stated that Section 705(c) of the Robert T. Stafford Disaster Relief and Emergency Assistance (Stafford) Act barred FEMA from deobligating funding.  

On August 27, 2021, the Acting FEMA Region I Regional Administrator denied the appeal, finding that the security work was not eligible for PA funding.  FEMA stated the costs were ineligible increased operating costs associated with implementing a community mitigation strategy to prevent the spread of COVID-19.  FEMA also determined that section 705(c) of the Stafford Act did not prohibit FEMA from deobligating funding because the Applicant (acting as its own Grantee) had not drawn down any funds for the project at the time FEMA took the corrective action.

Second Appeal

On October 25, 2021, the Applicant submitted its second appeal.  The Applicant reiterates its previously raised arguments and states that FEMA policy provides a non-exhaustive list of emergency protective measures and costs that may be eligible, which includes security, such as barricades, fencing, or law enforcement.  The Applicant states it did not request funds for routine regular work, rather, it claims it requested the funds for security staffed with unbudgeted employees.  The Applicant asserts that it did not merely increase the level of security, but created an entirely new security function.  The Applicant also states that FEMA does not provide a definition of community mitigation measures or guidance on how it would delineate between eligible and ineligible measures for COVID-19.  The Applicant states that the claimed security measures are analogous to operating a CVC or providing security necessary to control traffic and ensure that only qualified individuals with appointments entered the site.  Lastly, the Applicant disputes FEMA’s determination that section 705(c) of the Stafford Act did not prohibit FEMA from deobligating funding.

On January 5, 2022, FEMA requested the Applicant provide information concerning the   guidance from public health officials that it used to decide to close the borders and hire staff to enforce the closure from August 31, 2020, through September 4, 2020.  The Applicant responded by providing data that showed its population was vulnerable, and therefore, required aggressive measures to prevent the spread of COVID-19, in accordance with public health guidance.  Furthermore, the Applicant explained that the security staff at the checkpoints performed temperature screening, handed out personal protective equipment, and kept contact tracing logs.  

 

Discussion

FEMA may provide assistance for emergency protective measures that eliminate or lessen immediate threats to lives, public health, or safety.[3]  All work must be a required as a direct result of the declared incident and for COVID-19 declarations, be done at the direction or guidance of public health officials.[4]  Eligible emergency protective measures may include security, such as barricades, fencing, and law enforcement.[5] 

Here, the Applicant requested reimbursement for costs associated with FAL completed from August 31 through September 4, 2020, to provide security and barricading at access points to its Tribal land to eliminate or lessen the spread of COVID-19 by ensuring that only authorized individuals entered.  In the second appeal, the Applicant provides additional information and explanation to support the eligibility of its security and barricading measures and associated FAL costs.  The Applicant conducted these activities in response to public health concerns about high mortality rates in Indian Country nationwide and the spread of COVID-19 cases in surrounding communities, in accordance with the Indian Health Service, the U.S. Department of Health and Human Services, and FEMA recommendations and directives.[6]  While FEMA does not extend emergency work eligibility to implement community-wide mitigation efforts to reduce the transmission of COVID-19, based on the circumstances of the tribal population of this appeal, the Applicant’s actions were reasonable at the time to prevent further spread of COVID-19 among its population.  The Applicant has demonstrated that it performed eligible emergency protective measures in accordance with FEMA policy guidance in effect at the time the work was conducted.  

 

Conclusion

The Applicant demonstrated the security work was required due to an immediate threat resulting from the declared incident and, accordingly, the FAL costs in the amount of $37,202.23 are eligible for PA funding.  Therefore, this appeal is granted.

 

 

[1] FEMA Grants Manager, Project 168747 Security Force Week 1, https://pagrants.fema.gov/#Project/project-application/summary/18378 (last accessed Mar. 16, 2022, at 11:25 a.m.).

[2] The Applicant claimed reimbursement for work that it performed from August 31 through September 4, 2020.

[3] 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 (C.F.R.) §§ 206.223(a)(1), 206.225(a)(3)(i) (2019).

[4] 44 C.F.R. §§ 206.223(a)(1), 206.225(a)(3)(i); Public Assistance Program and Policy Guide, FP 104-009-2, at 19, 57 (Apr. 1, 2018) [hereinafter PAPPG]; Fact Sheet, Coronavirus (COVID-19) Pandemic: Eligible Emergency Protective Measures, at 1-2 (Mar. 19, 2020) [hereinafter Fact Sheet, Eligible Emergency Protective Measures]. 

[5] PAPPG, at 58; Fact Sheet, Coronavirus (COVID-19) Pandemic: Eligible Emergency Protective Measures, at 1-2.  A later FEMA policy superseded the aforementioned Fact Sheet for work performed on or after September 15, 2020, that authorized assistance for law enforcement and security only when necessary to perform otherwise eligible emergency work listed in the policy (e.g., medical care, non-congregate medical sheltering, and mass casualty management).  See FEMA Policy FP 104-009-19, Coronavirus (COVID-19) Pandemic: Work Eligible for Public Assistance (Interim), at 1, 3-4 (Sept. 1, 2020).

[6] Email from Deputy Incident Commander, Passamaquoddy Tribal Government, to FEMA, PA Appeals, at 1 (Mar. 2, 2022 3:40 pm).

Last updated June 1, 2022