Time Limitations/Extensions

Appeal Brief Appeal Letter Appeal Analysis

Appeal Brief

Disaster	4340
Applicant	Virgin Islands Housing Authority
Appeal Type	Second
PA ID#	000-UEVGF-01
PW ID#	N/A
Date Signed	2022-05-06T16:00:00

Summary Paragraph

From September 16-22, 2017, the United States Virgin Island of St. Croix was impacted by Hurricane Maria, damaging the Applicant’s properties.  FEMA held a Recovery Scoping Meeting with the Applicant on November 8, 2017.  After an extension, FEMA established a deadline of March 8, 2018, for the Applicant to identify and report disaster-related damages.  On January 22, 2020, the Applicant submitted a request to create a new project capturing damages related to playground equipment.  FEMA issued a Request for Information for documentation showing that the Applicant identified the damaged playground equipment prior to the regulatory deadline.  In response, the Applicant provided documentation related to the damages and asserted that the playground equipment was already included in existing projects.  FEMA denied the Applicant’s request because the claimed damage to playground equipment was not identified until two years after the deadline.  It also found that neither the Applicant nor the Grantee demonstrated extenuating circumstances that prevented the timely identification of the damages.  The Applicant appealed, arguing that extenuating circumstances affected its ability to identify the damages in a timely manner.  The FEMA Region II Acting Regional Administrator denied the appeal.  FEMA determined that the Applicant submitted the damage inventory (DI) after the applicable deadline, and there were no extenuating circumstances beyond its or the Grantee’s control that justified a time extension.  The Applicant submitted a second appeal reiterating its first appeal arguments.  

Authorities and Second Appeals

• 44 C.F.R. §§ 206.202(d)(ii); 206.202(f)(2).
• PAPPG, at 134.
• Jackson Cty. Water Co., Inc., FEMA-4424-DR-MS, at 2-3.

Headnotes

• Per 44 C.F.R. § 206.202(d)(ii) an applicant has 60 days following its first substantive meeting with FEMA to identify and report damages.
  • The Applicant has not demonstrated that the playground damages were identified and reported to FEMA before the regulatory deadline.
• Per 44 C.F.R. § 206.202(f)(2), FEMA may extend the time limitations for identifying and submitting damages when the Grantee justifies and makes a request in writing.  The justification must be based on extenuating circumstances beyond the Applicant’s or Grantee's control.

• Neither the Applicant nor the Grantee has demonstrated that extenuating circumstances beyond either party’s control impacted the submission for the playground’s damages in a timely manner.

Conclusion

The Applicant has not demonstrated that the playground damages were identified and reported to FEMA before the regulatory deadline.  Neither the Applicant nor the Grantee has demonstrated that extenuating circumstances beyond either party’s control impacted the submission of the damages at issue in a timely manner.  Therefore, this appeal is denied.

Appeal Letter

Appeal Analysis

Background

From September 16 - 22, 2017, the United States Virgin Island of St. Croix was impacted by Hurricane Maria.[1]  During the disaster, multiple facilities owned and operated by Virgin Islands Housing Authority (Applicant) sustained damages.  FEMA held a Recovery Scoping Meeting[2] (RSM) with the Applicant on November 8, 2017.^[3]  The regulatory deadline to submit the Damage Inventory (DI) was March 8, 2018.^[4] 

In a letter dated January 22, 2020, the Applicant submitted a request to create a new project to capture work and costs for the repair of damages to playground equipment in eight housing communities.^[5]  The Applicant stated that the playground equipment in these communities was already identified, but not specifically detailed in the existing projects for each housing community.  On February 18, 2020, the Virgin Islands Office of Disaster Recovery (Grantee) transmitted the new project request to FEMA stating that a new project worksheet will document the scope of work and cost estimates necessary to restore the damaged playground equipment to its pre-disaster design, function, and capacity.^[6] 

On March 30, 2020, FEMA issued a Request for Information (RFI) requesting additional information, including: (1) documentation showing that the playgrounds were previously documented and presented to FEMA prior to the regulatory deadline; and (2) if the damages were not identified prior to the deadline, documentation explaining the extenuating circumstances that prevented identification of the damages within the regulatory timeframe.[7]  The Applicant replied to the RFI, providing a list of the impacted communities and locations and photographs of the damages.  The Applicant stated that it prepared a DI Form for all damages related to the disaster, and the non-building elements (e.g., gazebos, exterior lighting, benches, fences, and playground equipment) were grouped into a single DI called “Grounds.”  Finally, it stated that the projects might advance more expeditiously if the “Grounds” DIs were consolidated into one island-wide project.

On January 5, 2021, FEMA denied the Applicant’s request to create a new project because the claimed damage to playground equipment was not identified until two years after the regulatory deadline.  It also found that neither the Applicant nor the Grantee demonstrated extenuating circumstances that prevented the timely identification of the damages to FEMA or that prevented the Applicant from submitting a request during the regulatory timeframe.  FEMA explained that there was no indication that the photographs of the damaged playground equipment were submitted to FEMA prior to the RFI response or that the damages were addressed during the site inspections. 

First Appeal

In the Applicant’s first appeal, it stated that extenuating circumstances beyond its control affected its ability to identify the damages in a timely manner.[8]  The Applicant claimed that part of the issue was “[t]he sheer amount of damage [from Hurricane Maria] and work undertaken.”[9]  It stated that it had 708 DI items and 73 projects formalized, and that each project was subject to multiple revisions.  Also, the Applicant argued that the process of converting the Project Worksheets into a new format on Grants Manager required additional work for each project.  Finally, it stated that it has limited staff and that disaster recovery work was not its primary function.  Additionally, the Applicant argued that the playground damages were identified and discussed during the site inspections, and damages related to playground equipment were open and obvious.  Finally, the Applicant assumed partial responsibility for the lack of written documentation but asserted that FEMA should look for that information in its files.  The Grantee supported the Applicant’s appeal in its May 7, 2021, transmittal.

On October 12, 2021, the FEMA Region II Acting Regional Administrator denied the appeal.  FEMA stated that the Applicant submitted DI items after the applicable deadline, and that it did not demonstrate extenuating circumstances beyond its or the Grantee’s control that justified a time extension.  FEMA stated there was no evidence that the documents submitted in response to the RFI were sent to FEMA before the deadline.  

Second Appeal

On December 13, 2021, the Applicant submitted a second appeal reiterating its first appeal arguments.  On January 27, 2022, the Grantee transmitted and endorsed the second appeal.

 

Discussion

Applicants have 60 days from the date of the first substantive meeting, the RSM, to identify and report all damage and submit all costs for disaster-related funding.[10]  FEMA may extend the deadline for identifying and reporting damage if the Grantee submits a request in writing with justification based on extenuating circumstances beyond the Grantee’s or Applicant’s control.[11] 

Here, the Applicant had until March 8, 2018 to submit its DI to FEMA.  The Applicant argues that the playground equipment damage was viewed and discussed during the site inspections.  However, the Applicant has not submitted any documentation showing that the damage to the playground equipment was recorded in the site inspections report or recorded elsewhere in the available documentation.  Therefore, the Applicant did not demonstrate that the playground damages were identified and reported to FEMA before the deadline.  The Grantee transmitted the new project request to FEMA on February 18, 2020, one year and eleven months after the deadline. 

The Applicant explains the delay was due to an extenuating circumstance beyond its control because of a high workload due to the amount of damages caused by the hurricane, understaffing, and oversight.  However, this justification does not constitute extenuating circumstances beyond its control that would justify an extension of the DI deadline.[12] 

 

Conclusion

The Applicant has not demonstrated that the playground damages were identified and reported to FEMA before the regulatory deadline.  Neither the Applicant nor the Grantee has demonstrated that extenuating circumstances beyond either party’s control impacted the submission of the damages at issue in a timely manner.  Therefore, this appeal is denied.

 

[1] The President declared a major disaster on September 20, 2017. 

[2] Previously, this meeting was referred to as the "Kickoff Meeting." Public Assistance Program and Policy Guide, FP 104-009-2, at 132 (Apr. 2017) [hereinafter PAPPG].

[3] The FEMA Kickoff Meeting sheet is dated November 8, 2017.  However, in Grants Manager the date of the RSM is inadvertently dated November 7, 2019.  See, Grants Manager, Applicant Profile, Virgin Island Housing Authority (VIHA) / St. Croix, PA Code 000-UEVGF-01.

[4] The original deadline was on January 7, 2018.  However, FEMA subsequently extended the deadline an additional 60 days, for a total of 120 days after each applicant’s Kick-off meeting to identify disaster-related damage.  Letter from Fed. Coordinating Officer, Disaster Recovery Manager, FEMA to Comm’r, Dep’t of Fin., at 1 (Dec. 12, 2017).

[5] Letter from Exec. Dir., VIHA, to Dir., Off. of Disaster Recovery, V.I. Pub. Fin. Auth., at 1 (Jan. 22, 2020). 

[6] Letter from Territorial Pub. Assistance Officer, V.I. Pub. Fin. Auth., to Coordinating Officer, FEMA, at 1 (Feb. 18, 2020).

[7] The RFI erroneously identifies March 9, 2018, as the deadline for the Applicant to submit its damage inventory.

[8] FEMA issued an RFI and confirmed that the Applicant submitted its first appeal within the regulatory time frame.  The Applicant submitted the first appeal to the Grantee on March 9, 2021.

[9] Letter from Acting Exec. Dir., VIHA, to Governor’s Authorized Representative, V.I. Pub. Fin. Authority., at 2 (n. d.).

[10] Title 44 Code of Federal Regulations (44 C.F.R.) § 206.202(d)(ii) (2016); PA PPG V3.1 (Apr. 2018) at 134.

[11] 44 C.F.R. § 206.202(f)(2); PAPPG., at 134.

[12] See, FEMA Second Appeal Analysis, Jackson Cty. Water Co., Inc., FEMA-4424-DR-MS, at 2-3 (July 12, 2021).  FEMA established that high workload and oversight are not justifications that constitutes extenuating circumstances.