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Request for Public Assistance

Appeal Brief Appeal Letter Appeal Analysis

Appeal Brief

Disaster4081-DR-MS
ApplicantHancock County Amateur Radio Association
Appeal TypeSecond
PA ID#N/A
PW ID#N/A
Date Signed2014-06-03T00:00:00

Conclusion:  The Applicant’s radio station constitutes an “other essential governmental service facility” because it provides “health and safety services of a governmental nature” and, therefore, the Applicant, a private nonprofit organization, is an eligible PNP Public Assistance Program applicant.

Summary Paragraph

The Hancock County Amateur Radio Association (Applicant) operates a low-power FM radio station.  The Applicant is a 501(c)(3) private, nonprofit (PNP) organization. In 2005, in response to Hurricane Katrina, the Applicant moved its operations to the Hancock County Emergency Operations Center (EOC) and enabled the EOC and other organizations to broadcast vital information during the event.  Following Hurricane Isaac in 2012, the Applicant submitted a Request for Public Assistance. In a letter dated October 30, 2012, FEMA denied the Applicant’s RPA, stating that the Applicant did not operate a facility falling within the six categories of facilities set forth in applicable Public Assistance (PA) Program regulations and, therefore, that the Applicant was not an eligible PNP applicant under the program.  On first appeal, the Applicant argued that it is an eligible PNP applicant because it operates “a critical facility that serves citizens in the local community and surrounding areas” by providing “essential emergency information for the safety of life, health and property.”  The FEMA Regional Administrator denied the first appeal, concluding that the Applicant’s emergency public service transmissions were infrequent and that the Applicant typically engages in more varied activities. On second appeal, the Applicant explained in more detail its emergency response role and highlighted its connection with the Hancock County EOC and Emergency Alert System responsibilities.

Authorities Discussed

  • Internal Revenue Code, 26 U.S.C. § 501(c)(3)
  • Robert T. Stafford Disaster Relief and Emergency Assistance Act (Stafford Act), Sections 102 (42 U.S.C. § 5122) & 406 (42 U.S.C. § 5172)
  • 44 C.F.R. § 206.221; 44 C.F.R. § 206.222; 44 C.F.R. § 206.223

Headnotes

  • Under the PA Program, PNP organizations or institutions that own or operate a PNP facility (as legally defined) are eligible to apply for assistance.
  • Eligible PNP facilities include those considered an “essential governmental service facility,” which includes, among other things, zoos, community centers, libraries, and homeless shelters, and “facilities which provide health and safety services of a governmental nature.”
  • The Applicant’s radio station qualifies as an “essential governmental service facility”:
  • Under Hancock County Emergency Management Agency (EMA) guidelines, the Applicant’s radio station is to operate out of Hancock County’s Emergency Operations Center during hurricanes and tropical storms and other catastrophic events.
  • The Applicant’s radio station is the only Emergency Alert System-licensed station in the county. 

Appeal Letter

June 3, 2014

Mr. Robert Latham, Jr.
Executive Director
Mississippi Emergency Management Agency
220 Popps Ferry Road
Biloxi, Mississippi  39531

Re:     Second Appeal—Hancock County Amateur Radio Association, Request for Public Assistance, FEMA-4081-DR-MS

Dear Mr. Latham:

This is in response to your letter dated August 30, 2013, appealing the Department of Homeland Security’s Federal Emergency Management Agency (FEMA) denial of the Request for Public Assistance (RPA) submitted by the Hancock Amateur Radio Association (Applicant).

As explained in the enclosed analysis, under the facts of this case, the Applicant has demonstrated that it operates a facility that provides health and safety services of a governmental nature and, therefore, it is an eligible private nonprofit (PNP) Public Assistance Program applicant.  Therefore, I am granting the appeal.  Under statutory and regulatory provisions governing PNP applicants, however, the Applicant must first apply for a disaster loan from the U.S. Small Business Administration to cover the costs of any damaged facilities.  If the SBA declines to issue a loan, or the loan amount does not cover all of the Applicant’s eligible costs, the Applicant may then seek assistance from FEMA.

This determination relates to the Applicant’s RPA submitted under Hurricane Isaac only, not Hurricane Katrina.  By copy of this letter, I am requesting that the Regional Administrator take appropriate action to implement this determination.

Please inform the Applicant of my decision.  This determination constitutes the final decision on this matter pursuant to 44 C.F.R. § 206.206, Appeals.

Sincerely,

/s/

Brad Kieserman
Assistant Administrator
Recovery Directorate

Enclosure

cc:  Major P. May
      Regional Administrator
      FEMA Region IV

Appeal Analysis

Background

The Hancock County Amateur Radio Association (Applicant) operates a low-power FM radio station under the call letters WQRZ out of Bay Saint Louis, Mississippi.  The Applicant is a private, nonprofit (PNP) organization that qualifies as tax-exempt under Section 501(c)(3) of the Internal Revenue Code.[1]

In 2005, in response to Hurricane Katrina, the Applicant moved its operations to the Hancock County Emergency Operations Center (EOC).  The Applicant submitted a Request for Public Assistance (RPA) under the Hurricane Katrina major disaster declaration for the State of Mississippi (FEMA-1604-DR-MS).  FEMA denied the request because the Applicant had failed to provide FEMA with its Internal Revenue Service (IRS) tax-exempt determination letter to demonstrate its status as a 501(c)(3) organization.

On August 28, 2012, Hurricane Isaac made landfall on the Mississippi coast, causing damage in various locations, including Hancock County.  The Applicant submitted an RPA dated September 7, 2012 under the Hurricane Isaac major disaster declaration for the state (FEMA-4081-DR-MS).  In a letter dated October 30, 2012, FEMA denied the Applicant’s RPA, stating that the Applicant did not operate a facility falling within the six categories of facilities set forth in applicable Public Assistance (PA) Program regulations and, therefore, that the Applicant was not an eligible PNP applicant under the program.

First Appeal

The Applicant submitted a first appeal in a letter dated December 31, 2012, maintaining that it is an eligible PNP applicant because it operates “a critical facility that serves citizens in the local community and surrounding areas” by providing “essential emergency information for the safety of life, health and property.”  The Applicant included its November 21, 2002 IRS tax-exempt determination letter, as well as letters addressed to the Applicant sent in 2005 and 2006 from emergency response and other community organizations indicating that they relied on the Applicant’s radio operations for information during Hurricane Katrina and its aftermath. 

The FEMA Region IV Regional Administrator denied the first appeal in a letter dated May 24, 2013.  In his decision, the Regional Administrator acknowledged that Applicant had provided important emergency public service transmissions to residents in its broadcast area but explained that those broadcasts “are dependent upon the infrequent activation of local emergencies” by county authorities.  The Regional Administrator explained that the Applicant’s “normal activities are more varied,” citing the Applicant’s various stated organization objectives, including advancing amateur radio service and promoting self-sustaining radio broadcast stations and repeater towers.  Such activities do not provide “an essential government-type service” under applicable regulations, the Regional Administrator explained.  Because, as the Regional Administrator concluded, the Applicant’s radio station was not used primarily for an eligible purpose, the Applicant was not an eligible PNP applicant.

Second Appeal

The Applicant submitted a second appeal in a letter dated July 29, 2013.  The Applicant asserts that FEMA should consider it eligible under applicable PA Program regulations as an operator of an “educational,” “utility,” “emergency,” and/or “other essential governmental service” facility.  As an educational facility, the Applicant argues, it provides training to volunteer students.  With respect to operating an emergency and essential government service facility, the Applicant asserts, among other things, that:

  • It operates year-round as an all-hazards community warning system.
  • It is the only Federal Communications Commission-licensed Emergency Alert System (EAS) station located within Hancock County with service to local government and the general public.
  • It operates as a public information station in partnership with the Hancock County Emergency Management Agency (EMA) and Hancock County EOC, and serves as the Radio Amateur Civil Emergency Service primary contact for the county.
  • Its services are included in Hancock County’s hurricane/tropical storm standard operating guidelines and its hazard mitigation plan.
  • It provides external affairs/public information officer services, such as “rumor control” and providing “mitigation solutions and real-time situation awareness.”
  • Its staff is always on standby for emergencies and is the “Official Voice” of the Hancock County EOC.

The Mississippi Emergency Management Agency (Grantee) transmitted the second appeal to the FEMA Region IV Regional Administrator in a letter dated August 30, 2013.  The Grantee supports the Applicant’s appeal.

Discussion

Under the PA Program, PNP organizations or institutions that own or operate a PNP facility (as legally defined) are eligible to apply for assistance.[2] Section 102 of the Robert T. Stafford Disaster Relief and Emergency Assistance Act (Stafford Act) defines “private nonprofit facility” to include a PNP educational, utility, irrigation, emergency, medical, rehabilitational, or custodial care facility.[3]  The term also includes “any private nonprofit facility that provides essential services of a governmental nature to the general public,” including “health and safety services of a governmental nature.”[4]

PA Program regulations reiterate these definitions and further define specific types of PNP facilities.[5]  An “educational” facility “means classrooms plus related supplies, equipment, machinery, and utilities of an educational institution necessary or appropriate for instructional, administrative, and support services.”[6]  A “utility” facility “means buildings, structures, or systems of energy, communication, water supply, sewage collection and treatment, or other similar public service facilities.”[7]  An “emergency” facility “means those buildings, structures, equipment, or systems used to provide emergency services, such as fire protection, ambulance or rescue, to the general public.”[8]  An “other essential governmental service facility” means, among other things, zoos, community centers, libraries, and homeless shelters, as well as “facilities which provide health and safety services of a governmental nature.”[9]

Having provided FEMA with its effective ruling letter from the IRS granting it tax-exempt status, the Applicant has demonstrated that it is a PNP under PA Program regulations.[10]  The Applicant argues that is eligible for assistance as a PNP applicant because it operates a PNP facility as defined in the regulations.  Specifically, the Applicant asserts that it operates an “educational,” “utility,” “emergency,” and/or “other essential governmental service” facility.  Although the Applicant asserts that it provides training to students in broadcast communications, “weather spotting,” principles of emergency management, and related subject areas, FEMA finds that the Applicant’s radio station facility does not constitute an “educational” facility, as it is not an “educational institution” as set forth under the regulations and FEMA guidance.[11]   Nor does the Applicant’s radio station constitute a “utility” facility.  Although the definition of a “utility” facility includes “communication” systems, and the Applicant’s radio station provides broadcast communications, FEMA recognizes PNP “communications” services as applying to “transmission, switching, and distribution of telecommunications traffic”—and not to broadcasting.[12]  The Applicant also does not operate an “emergency” facility; its radio station does not provide emergency response services, such as fire protection or ambulance and rescue services.

Under the facts of this case, however, FEMA recognizes the Applicant’s radio station as an “essential governmental service facility” because it provides “health and safety services of a governmental nature.”[13]  In reaching this conclusion, FEMA has taken into consideration a variety of factors, including the Applicant’s unique relationship with the Hancock County government and the prominent role it has played in providing information to community residents during past disasters and emergencies.  According to documentation provided by the Applicant, the Applicant’s radio station serves as the lead broadcast station for the county for issuing warnings and notifications to the public during hurricanes and tropical storms and other catastrophic events.[14]  Hancock County hurricane and tropical storm operating guidelines reflect that the Applicant’s radio station also operates out of Hancock County’s EOC during all such events.[15]  The county guidelines recognize that the Applicant’s station operates the EAS warning system and is the only Federal Communications Commission-licensed EAS station within the county.  Correspondence from representatives of the Hancock County EMA, Chamber of Commerce, and Chancery Clerk’s office indicates that the Applicant’s radio station, operating out of the EOC, provided the EOC with the only means of communication during Hurricane Katrina and its aftermath, allowing government officials, the American Red Cross, and other organizations to provide vital information regarding food, water, medical, and rescue services to the public.  In light of the role the Applicant’s radio station plays during community disasters and emergencies, FEMA finds that the Applicant operates an “essential governmental service facility” that provides health and safety services.  As such the Applicant is eligible as a PNP to apply for assistance.

The Regional Administrator’s first appeal decision rested on the notion that the Applicant’s radio station provides other services in addition to its emergency broadcast services, such as the promotion of amateur radio service, and, therefore, it is not “primarily” used as an “essential government service facility.”  The first appeal decision applied a FEMA PA policy requiring that, in order to be eligible for assistance, a PNP facility “must be primarily used for eligible services.”[16]  Under DAP 9521.3, the “primary use” determination generally depends on how facility space is used; a facility must have over 50 percent of its space dedicated to eligible uses in order for it to be eligible under the PA Program.[17]  When space is not dedicated to specific activities, or space is used for eligible and ineligible purposes, “primary use” is determined by the amount of time used for eligible services.[18]  Although, as the first appeal decision recognizes, the Applicant is called upon to provide emergency broadcasts relatively infrequently, FEMA recognizes that the Applicant’s radio station is available all of the time to provide EAS broadcasts and to operate out of the Hancock County EOC when necessary.  Under the facts of this case, FEMA concludes that the Applicant’s radio station satisfies the requirements set forth in DAP 9521.3.

In light of the key, official role the Applicant’s radio station plays during community disasters and emergencies, FEMA finds that the Applicant operates an “essential governmental service” facility that is available all of the time to provide health and safety services.  As such, the Applicant is an eligible PNP that may apply for assistance under the PA Program.  In order to obtain assistance, the Applicant must satisfy all aspects of PA eligibility, including the requirement that the work for which it seeks assistance was required as a direct result of the disaster, Hurricane Isaac.[19]  In addition, in accordance with section 406(a)(3)(A)(ii) of the Stafford Act, the Applicant must first apply for a disaster loan from the U.S. Small Business Administration before it can obtain assistance from FEMA.[20]  If the SBA declines the Applicant’s loan application, the Applicant may then seek assistance from FEMA.[21]  If the SBA approves the loan application, but the loan amount does not cover all of the Applicant’s eligible costs, the Applicant may seek assistance from FEMA to cover its remaining costs.[22]

Conclusion

The Applicant’s radio station, as outlined in Hancock County EMA emergency response guidelines, operates out of the county’s EOC and serves as the lead broadcast station during disasters and emergencies.  It also is the only EAS-licensed station in Hancock County.  The radio station constitutes an “essential governmental service facility” because it provides “health and safety services of a governmental nature.”  Therefore, the Applicant is an eligible PNP applicant under the PA Program and may apply for assistance.  However, the Applicant must first apply for a disaster loan from the SBA before it can obtain any assistance from FEMA.  If the SBA declines to issue a loan, or the loan amount does not cover all of the Applicant’s eligible costs, the Applicant may then seek assistance from FEMA.



[1]  26 U.S.C. § 501(c)(3).

[2]  See 42 U.S.C. § 5172(a)(1)(B); 44 C.F.R. § 206.222(b).

[3]  See 42 U.S.C. § 5122(10)(A).

[4]  42 U.S.C. § 5122(10)(B).

[5]  See 44 C.F.R. § 206.221(e).

[6]  See 44 C.F.R. § 206.221(e)(1).

[7]  See 44 C.F.R. § 206.221(e)(2).

[8]  See 44 C.F.R. § 206.221(e)(4).

[9]  See 44 C.F.R. § 206.221(e)(7).

[10]  See 44 C.F.R. §§ 206.221(f)(1) & 206.221(e)(4).

[11]  See 44 C.F.R. § 206.221(e)(1); see also FEMA 322, Public Assistance Guide (July 2007) (“PA Guide”), at 15 (“Educational institutions are defined in terms of primary, secondary, and higher education schools.”).

[12]  See PA Guide at 12; see also FEMA-DR-1603-LA, Greater New Orleans Educational Television Foundation, PNP Eligibility (Nov. 14, 2007) (“FEMA has consistently interpreted “communication utility” to mean telephone services.”).

[13]  44 C.F.R. § 206.221(e)(4).

[14]  See Hancock County Emergency Management Agency Hurricane/Tropical Storm Standard Operating Guidelines, at 97 (“The Hancock County EOC shall use WQRZ 103.5 Radio Station as the lead Broadcast station for Hancock County.”); id. at 23 (stating that evacuation orders should be disseminated to, among other outlets, the Applicant’s radio station); id. at 29 (stating that the public will be notified of evacuation bus pickup points via, among other outlets, the Applicant’s radio station).  See also Hancock County Multijurisdictional Hazard Mitigation Plan Update 2013, at 4-68 (listing Applicant’s radio station as a “Buildings for Operation of Government” critical facility).

[15]  Id. at 97.

[16]  See FEMA Disaster Assistance Policy 9521.3, Private Nonprofit (PNP) Facility Eligibility (July 18, 2007) (“DAP 9521.3”) § VII(D).

[17]  Id.

[18]  Id.

[19]  See 44 C.F.R. § 206.223(a)(1)

[20]  See 42 U.S.C. § 5172(a)(3)(A)(ii); see also 44 C.F.R. § 206.226(c)(2).

[21]  See id.

[22]  See id.

 

Last updated May 28, 2020