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Permanent Work

Appeal Brief Appeal Letter

Appeal Brief

ApplicantNew York State Department of Transporation
Appeal TypeSecond
PA ID#000-U0065-00
PW ID#207-212
Date Signed2003-04-21T04:00:00
Citation: FEMA-1404-DR-NY; NYS Dept. of Transportation, Permanent Work, PWs 207-212

Cross-reference: Permanent Work

Summary: A snowstorm dropped 81.5 inches of snow on Erie County from December 24-29, 2001. The Federal Emergency Management Agency (FEMA) declared FEMA-1404-DR-NY on March 1, 2002, for all categories of work in the County. FEMA made Project Worksheets (PWs) 207-212 ineligible in June 2002 because permanent work on federal aid roads is not eligible for Public Assistance funding. The New York State Department of Transportation (NYSDOT) argued in the first appeal that the damage was not eligible for Emergency Relief from the Federal Highway Administration and, therefore, should be eligible for FEMA funding. The Acting Regional Director denied the first appeal because FEMA did not believe the work noted on the PWs was “Emergency Work”. Rather, it was permanent work on federal aid roads, which FEMA is prohibited from providing Public Assistance Program funds for.

Issues: Is the replacement of curb, sidewalk, guiderails, signs, and sod on Federal-Aid Roads eligible as emergency protective measures?

Findings: No. This type of work is considered permanent work and, therefore, ineligible for Public Assistance funding.

Rationale: 44 CFR §206.221(h)

Appeal Letter

April 21, 2003

Mr. Edward J. Jacoby
Governor’s Authorized Representative
New York State Emergency Management Office
Public Security Building 22, State Campus
Albany, New York 12226-5000

Re: Second Appeal: New York State Department of Transportation, PA ID 000-U0065-00, Permanent Work, FEMA-1404-DR-NY, Project Worksheets (PWs) 207-212

Dear Mr. Jacoby:

This is in response to your letter dated December 31, 2002, which transmitted the reference second appeal on behalf of the New York State Department of Transportation (NYSDOT). The NYSDOT requested that the Federal Emergency Management Agency (FEMA) reconsider its first appeal determination that project worksheets (PWs) 207-212 ($134,269) were ineligible.

A snowstorm dropped 81.5 inches of snow on Erie County on December 24-29, 2001. In June 2002, FEMA made PWs 207–212 ineligible because they were for Category C work on Federal-Aid roads.

The NYSDOT submitted a first appeal to the Governor’s Authorized Representative (GAR) on September 25, 2002. In its appeal, the NYSDOT stated that PWs 207-212 should have been classified as Category B because the work was emergency protective measures. The Acting Regional Director for FEMA Region II denied the appeal on October 11, 2002, because the work was permanent work on Federal-Aid roads and not eligible under the FEMA Public Assistance Program.

The NYSDOT submitted a second appeal dated December 17, 2002, again stating that although the repairs covered in PWs 207-212 were permanent in nature, they were performed as emergency protective measures.

The NYSDOT is seeking reimbursement for the repair or replacement of items such as attenuators, guardrails, signs, curbing, and sod. Usually, FEMA can reimburse for damage incurred during the performance of otherwise eligible work. Damaged caused during the performance of emergency work is considered permanent work. The Stafford Act does not provide for assistance for permanent repairs to Federal-Aid roads. The repairs that NYSDOT seeks reimbursement for are permanent repairs, not emergency protective measures. Unfortunately, FEMA cannot reimburse NYSDOT for those repairs. For the above reasons, I am denying the appeal.

Please inform the NYSDOT of my determination. My decision constitutes the final decision on this matter as set forth in 44 CFR §206.206.

Laurence W. Zensinger
Acting Director
Recovery Division
Emergency Preparedness and Response

cc: Joseph Picciano
Acting Regional Director
FEMA Region II
Last updated February 4, 2020