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Resurrection Catholic School, Wichita, KS - Safe Room

Appeal Brief Appeal Letter Appeal Analysis

Appeal Brief

ApplicantKansas Division of Emergency Management
Appeal Type2nd
Project Number11
Date Signed2011-07-11T00:00:00
1st Appeal
• Issue
o The State of Kansas, on behalf of Resurrection Catholic School in Wichita, Kansas submitted a sub-application to harden four classrooms and a hallway in a new addition to serve as a community safe room. Approval was granted on the condition that the design conforms to FEMA 361 and that no construction takes place until FEMA had reviewed and approved the design. The FEMA review of the design exceeded initial time frame estimates and construction was initiated approximately 5 months prior to receipt of design approval from FEMA. Subsequently, the Regional Office informed the State that it was de-obligating funds for construction due to noncompliance with the conditions of the award. Region VII approved the design costs but denied the construction costs.
• Reason for Denial
o Region VII based the denial of the 1st appeal on the fact that the project construction costs were ineligible because construction had been initiated prior to grant approval. 
• Reference(s)
o 44 CFR 206.434 Eligibility;   44 CFR 206.440 Appeals, 44 CFR 206.436Application Procedures; 44 CFR Part 13.30 Changes; 44 CFR 13.43 Remedies for Noncompliance
2nd Appeal
• Issue
o The subgrantee filed a second appeal asking for a review of the justification and rationale set forth in the first appeal. The subgrantee stated that following preliminary approval, delays in final design approval far exceeded FEMA estimates and the safe room was constructed in accordance with FEMA requirements. The primary issue for review was whether the School is eligible for the grant when it did not comply with a condition of the grant award.
• FEMA Findings
o FEMA HQ granted the 2nd appeal, overturning the 1st appeal denial.
o Rationale: A remedy for noncompliance, per 44 CFR 13.43 is to allow the subgrantee to correct the deficiency. FEMA determined that the School's safe room design was in compliance with FEMA 361.
o Reference(s):  44 CFR 206.440 Appeals; 44 CFR 206.434 Eligibility; 44 CFR 206.436 Application Procedures; 44 CFR 13.43 Remedies for Noncompliance

Appeal Letter

JUL 11 2011
 
Angee Morgan
Deputy Director
Kansas Division of Emergency Management
2800 Southwest Topeka Boulevard
Topeka, Kansas 66611-1287
 
Re: Second Appeal: Resurrection Catholic School, Safe Room FEMA DR-1711-KS, HMGP Project No. 11

Dear Ms. Morgan:

Thank you for your letter dated March 3. 2011, to the Department of Homeland Security, Federal Emergency Management Agency (FEMA), regarding the Resurrection Catholic School (School) Safe Room Project in Wichita, Kansas. The School is requesting that FEMA restore funding under a Hazard Mitigation Grant Program (HMGP) award for this project.
 
Background:
On December 2008. the State submitted an HMGP sub-application on behalf the School to harden four classrooms and a hallway in the lower level of a new addition to school. On January 5, 2009, the State requested that review the sub-application under FEMA policy MRR-2-07-1 Hazard Mitigation Assistance for Safe Rooms, dated March 7. 2008, which allows strengthening of a building's envelope. The State submitted a sub-application to FEMA on July 16, 2009, that conformed to MRR-2-07-1. In a letter dated August 11, 2009, the FEMA Region VII Office (Regional Office) notified the State that it had approved the School's project with conditions. Specifically, FEMA stated "... This project is approved based on the condition the design and the construction meet the critieria defined in FEMA 361. No Construction may proceed until FEMA reviews and accepts the design." The school began construction on the safe room in November 2009. FEMA notified the State on March 30, 2010, of its approval of the safe room design, approximately five months after receiving the School's design for the safe room.
 
FEMA subsequently learned that the School began construction on the safe room prior to FEMA's approval of the project design as stipulated in the grant award. On April 23, 2010, the Regional Office informed the State that it was deobligating funding for the safe room because the School did not comply with the conditions of the award. The Regional Office based its decision on Title 44, Code of Federal Regulations, Section 13.43(a)(2), Enforcement (44 C.F.R. § 13.43(a)(2)). The Regional Office approved $22,051 for design costs and denied $315,006 for construction costs. The Region VII Administrator sustained this decision on first appeal in a letter dated January 7, 2011. The School submitted a second appeal to the State on February 7, 2011.
 
Analvsis:
The issue in this appeal is not the eligibility of safe rooms or whether the School constructed the room in accordance with FEMA 361, Design and Construction Guidance for Community Safe Room, as required by program guidelines. Rather, the issue is whether the School is eligible for the grant when it did not comply with a condition of the grant award. Specifically, FEMA awarded a grant with the condition that the School not begin construction of the safe room until FEMA reviewed the design to ensure that it was consistent with the standards in FEMA 361. The School began construction of the safe room several months before FEMA completed its review and approved the design.
 
Clearly, the School did not comply with this condition of the grant. All grant recipients are reqnired to comply with all terms and conditions of the grant. 44 C.F.R. § 13.43(a) states in part: "If a grantee or sub-grantee materially fails to comply with any term of an award, whether stated in a Federal statute or regulation, an assurance, in a State plan or application, a notice of award, or elsewhere, the awarding agency may take one or more of the following actions: ( 1) Temporarily withhold cash payments pending correction of the deficiency by the grantee or subgrantee or more severe enforcement action by the awarding agency, ... (2) Disallow (that is, deny both use offunds and matching credit for) all or part of the cost of the activity or action not in compliance ... " The Region VII Administrator exercised discretion to deny funding pursuant to 44 C.F.R. § 13.43(a)(2), even though FEMA later determined that the School's safe room design complied with the requirements of FEMA 361.
 
Conclusion:
Based on review of all information submitted with the appeal, I have determined that the School did not comply with all conditions of the grant. 44 C.F.R. § 13.43 allows the awarding agency several remedies when a grantee or subgrantee does not comply with the terms of the grant. One remedy, pursuant to 44 C.F.R § l3.43(a)(1), is to allow the grantee or subgrantee an opportunity to correct the deficiency and meet the grant objective. Properly designed and constructed rooms save lives. Since FEMA determined that the School's safe room design was in compliance with FEMA 361, I have determined that the School is eligible for construction costs for the safe room. Accorningly, the second appeal is granted. By copy of this letter, I ask the Regional Administrator to take appropriate action to implement this determination.

Please inform the School of my determination. My determination is FEMA's final decision on this matter persuant to 44 C.F.R. § 206.440, Appeals.
 
Sincerely,
 
Sandra K. Knight, PhD, PE
Deputy Federal Insurance and Mitigation Administrator, Mitigation
 
cc: Beth Freeman, Regional Administrator FEMA Region VII

 

Appeal Analysis

The issue in this appeal is not the eligibility of safe rooms or whether the School constructed the room in accordance with FEMA 361, Design and Construction Guidance for Community Safe Room, as required by program guidelines. Rather, the issue is whether the School is eligible for the grant when it did not comply with a condition of the grant award. Specifically, FEMA awarded a grant with the condition that the School not begin construction of the safe room until FEMA reviewed the design to ensure that it was consistent with the standards in FEMA 361. The School began construction of the safe room several months before FEMA completed its review and approved the design.

Clearly, the School did not comply with this condition of the grant. All grant recipients are reqnired to comply with all terms and conditions of the grant. 44 C.F.R. § 13.43(a) states in part: "If a grantee or sub-grantee materially fails to comply with any term of an award, whether stated in a Federal statute or regulation, an assurance, in a State plan or application, a notice of award, or elsewhere, the awarding agency may take one or more of the following actions: ( 1) Temporarily withhold cash payments pending correction of the deficiency by the grantee or subgrantee or more severe enforcement action by the awarding agency, ... (2) Disallow (that is, deny both use offunds and matching credit for) all or part of the cost of the activity or action not in compliance ... " The Region VII Administrator exercised discretion to deny funding pursuant to 44 C.F.R. § 13.43(a)(2), even though FEMA later determined that the School's safe room design complied with the requirements of FEMA 361.
Last updated Aug 19, 2014