Request for Public Assistance, Private Nonprofit

Appeal Brief Appeal Letter Appeal Analysis

Appeal Brief

Disaster4585
ApplicantDouglas Island Pink and Chum, Inc.
Appeal TypeSecond
PA ID#110-U83AQ-00
PW ID#N/A
Date Signed2022-03-30T16:00:00

Summary Paragraph

Douglas Island Pink and Chum, Inc. (Applicant) submitted a Request for Public Assistance (RPA) to receive Public Assistance (PA) funding for its fish hatchery (Hatchery) affected by severe storms.  FEMA denied the RPA, finding the Hatchery was not an eligible PNP facility as its primary purpose did not fall under the category of a noncritical essential social service, nor did its education component meet the primary use requirements for a mixed-use facility.  The Applicant appealed stating that its Hatchery provides significant cultural and economic services to citizens of Alaska and therefore meets the requirements of an eligible PNP facility.  The FEMA Region X Regional Administrator denied the first appeal as the Hatchery did not meet the requirements of a noncritical essential social service PNP and was therefore not an eligible PNP facility.  The Applicant filed a second appeal arguing it meets the requirements of an eligible PNP facility and provides significant food security for Alaskan residents.

Authorities and Second Appeals

  • Stafford §406(a)(1)(B).
  • 44 C.F.R. §§ 206.221(e), 206.222(b), 206.223(b).
  • PAPPG at 46, Table 2.

Headnotes

  • To be eligible for PA, a PNP applicant must own or operate an eligible PNP facility.  An eligible PNP facility includes one that provides a noncritical, but essential social service to the general public.  FEMA policy provides a list of PNP eligible noncritical, but essential social services.
    • The Applicant’s Hatchery does not provide a noncritical essential social service, and is therefore not an eligible PNP facility.

Conclusion

FEMA finds the PNP Applicant is not eligible for PA funding because it does not own or operate an eligible PNP facility.

Appeal Letter

Bryan J. Fisher                       

Director                                                                      

Department of Military and Veterans Affairs;

Division of Homeland Security and Emergency Management         

P.O. Box 5750                                   

JBER, Alaska 99505-0750

 

Re:  Second Appeal – Douglas Island Pink and Chum, Inc., PA ID: 110-U83AQ-00, FEMA-4585-DR-AK, Request for Public Assistance, Private Nonprofit  

 

Dear Mr. Fisher:

This is in response to your letter dated January 11, 2022, which transmitted the referenced second appeal on behalf of Douglas Island Pink and Chum, Inc. (Applicant).  The Applicant is appealing the U.S. Department of Homeland Security’s Federal Emergency Management Agency’s denial of its Request for Public Assistance.  

As explained in the enclosed analysis, I have determined that the Private Nonprofit (PNP) Applicant is not eligible for Public Assistance funding because it does not own or operate an eligible PNP facility.  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:  Vincent Maykovich  

Acting Regional Administrator

FEMA Region X

 

Appeal Analysis

Background

During the incident period, November 30 through December 2, 2020, severe storms, flooding, mudslides, and landslides affected Southeast Alaska.[1]  The Douglas Island Pink and Chum Inc. (Applicant) operates salmon hatcheries[2] in the disaster-declared area.  Per the Alaska Salmon Fisheries Enhancement Annual Report, hatcheries such as the Applicant’s are meant to supplement wild stock salmon populations in Alaskan waters. 

On March 1, 2021, the Applicant submitted a Request for Public Assistance (RPA) to FEMA as a Private Nonprofit (PNP).  The Applicant sought Public Assistance (PA) funding for repairs to its Macauly Fish Hatchery (Hatchery) affected by the incident, along with debris removal and emergency protective measures.  Housed within the Hatchery is the Ladd Macauley Visitor Center (Visitor Center), which the Applicant identified as an educational and tourist center.  

On April 27, 2021, FEMA sent an informal Request for Information (RFI), requesting information to show that more than 50 percent of the Hatchery was dedicated to the Applicant’s services of promoting public understanding of Alaska’s salmon resources and salmon fisheries through research, education, and tourism.  The Applicant replied on May 4, 2021, stating that the Visitor Center had 3,000 square feet (SF), while the Hatchery had 43,600 SF of additional space.

FEMA transmitted a Determination Memorandum (DM) on June 17, 2021, finding the Applicant was not eligible for PA as it did not operate an eligible PNP facility.  FEMA stated that the time and space dedicated within the Hatchery to education services did not satisfy the primary use requirements for a mixed-use PNP facility, and it did not provide any other eligible service.

First Appeal

In a letter dated August 6, 2021, the Applicant appealed FEMA’s determination that the Hatchery was not an eligible PNP facility.  The Applicant stated that while PNP salmon hatcheries may not be directly mentioned in applicable law as essential social services, they are essential to the welfare of those living within the state of Alaska.  The Applicant stated they provide cultural and economic services to citizens of Alaska.  The Alaska Division of Homeland Security and Emergency Management (Grantee) forwarded the Applicant’s appeal to FEMA, in a letter dated August 17, 2021, in support of the Applicant’s position.    

The FEMA Region X Regional Administrator (RA) denied the Applicant’s appeal in a letter dated September 30, 2021.  FEMA found that the Hatchery was not an eligible PNP facility and therefore the Applicant was not eligible for PA funding. 

Second Appeal

The Applicant appealed in a letter dated November 29, 2021, stating that the Hatchery falls under the definition of an eligible PNP facility that provides essential governmental type services to the general public, similar to a museum or a zoo.  The Applicant asserts that its Hatchery is open to the public, with necessary security measures akin to a zoo, while also providing low-cost opportunities for populations with food security issues.  This is done by providing low prices for licenses for fishing, and, during periods of high abundance, donating salmon to various charities and food banks.

The Applicant cites to the President’s Executive Order 14008 (“Executive Order on Tackling the Climate Crisis at Home and Abroad”), dated January 27, 2021, pointing out how climate change is a major threat to fish hatchery operations and how Federal funding can assist the Applicant and other hatcheries recover from future disasters.  The Applicant also provides several articles supporting its argument regarding the issues of food insecurity and climate change and how its operations are essential services to Alaskan residents.  The Grantee forwarded the Applicant’s appeal to FEMA with a concurrence letter dated January 11, 2022.

 

Discussion

FEMA may provide funding for repair, restoration, reconstruction, or replacement of PNP facilities damaged or destroyed by a major disaster.[3]  To be eligible for PA, a PNP applicant must own or operate an eligible facility.[4]  An eligible PNP facility includes one that provides educational, utility, emergency, medical, or custodial care services, or other essential social service to the general public.[5]  FEMA policy provides a list of PNP eligible noncritical, essential social services, including zoos and food assistance programs such as food banks or storage for food banks.[6]  Eligibility of a PNP facility that provides both eligible and ineligible services depends on the primary use of the facility.[7]

The Applicant asserts that its Hatchery is an eligible PNP facility providing an essential social service to the general public, specifically food assistance.  However, the Applicant acknowledges that the Hatchery is not the location wherein the food is available to procure.[8]  Instead, the salmon is relocated to certain fish release areas, separate from the Hatchery, where seafood processors bid for the right to fish and compensate the Applicant accordingly.[9]  This arrangement is not comparable to a food assistance program such as a food bank.

The Applicant also has not demonstrated that the Hatchery is primarily used to store food for food banks.  While the Applicant states that donations occur to various food banks and other charities, it notes this only occurs during periods of high abundance.  Similarly, the Applicant has not demonstrated that its Hatchery is primarily used for any purpose comparable to that of a museum or zoo.

Therefore, the Applicant has not demonstrated the Hatchery is an eligible PNP facility that provides an essential social service.       

 

Conclusion

FEMA finds the PNP Applicant is not eligible for PA funding because it does not own or operate an eligible PNP facility.  Therefore, this appeal is denied.

 

[1] The President issued a major disaster declaration on February 17, 2021.

[2] A fish hatchery is a place for artificial breeding, hatching, and rearing through the early life stages of animals—finfish and shellfish in particular.  Hatcheries produce larval and juvenile fish, shellfish, and crustaceans, primarily to support the aquaculture industry.

[3] Robert T. Stafford Disaster Relief and Emergency Assistance (Stafford) Act § 406(a)(1)(B), Title 42, United States Code (42 U.S.C.) § 5172(a)(1)(B) (Supp. 1 2020). 

[4] Stafford Act § 102(11), 42 U.S.C. 5122(11); Title 44 Code of Federal Regulations (44 C.F.R.) §§ 206.222(b), 206.223(b) (2020); FEMA Public Assistance Program and Policy Guide, FP 104-009-2, at 43 (June 1, 2020) [hereinafter PAPPG].

[5] 44 C.F.R §§ 206.221(e), 206.222(b); PAPPG, at 43.  

[6] PAPPG, at 46, Table 2.   

[7] Id. at 56.

[8] Letter from Exec. Dir., Douglas Island Pink and Chum, Inc. (DIPAC), to Dir., State of Alaska Div. of Homeland Sec. and Emergency Mgmt., at 1 (Nov. 29, 2021) (acknowledging that the Hatchery “is not where the public can enjoy the essential social services we offer”). 

[9] Letter from Exec. Dir., DIPAC, to Att’y-Advisor, Off. of Chief Couns., FEMA, at 2 (Aug. 6, 2021) (“The vast majority of [the Applicant’s] operating revenue comes from [the Alaska Department of Fish and Game] determined Special Harvest Areas (SHA) where cost recovery fishing occurs.  [The Applicant] bids out the right to fish within the SHA to a seafood processor and receives a yearly determined price per pound.”).

Last updated April 6, 2022