Emergency Protective Measures

April 23, 2007

Mr. W. Craig Fugate
State of Florida Department of Community Affairs
Division of Emergency Management
2555 Shumard Oak Boulevard
Tallahassee, FL 32399-2100

Re: Second Appeal-Department of Agriculture and Consumer Services, PA ID# 000-U03D9-00, Emergency Protective Measures,
FEMA-1539/1545-DR-FL, Project Worksheets 5242, 5244, and 6746

Dear Mr. Fugate:

This letter is in response to the referenced second appeal submitted by the Department of Agriculture and Consumer Services (Applicant) to your office on July 7, 2006, and transmitted by your letter dated September 29, 2006. The Applicant is appealing the Department of Homeland Security’s Federal Emergency Management Agency (FEMA) determination to deny the costs incurred for airing public service announcements about price gouging and travel expenses for related investigations as a result of Hurricanes Charley and Frances.

Hurricanes Charley and Frances struck Florida on August 13 and September 4, 2004, respectively. The Applicant was concerned that the public would be vulnerable to unscrupulous merchants and opportunists. As such, the Applicant warned both the public and merchants about price gouging through public service announcements aired on television. The Applicant also investigated and enforced State price gouging laws. The Applicant claimed a total of $34,548.92, of which $23,568.75 related to public service announcements and $10,980.17 related to travel expenses incurred while investigating public assertions of price gouging.

FEMA deemed airing public service announcements and investigating public assertions of price gouging ineligible because they do not qualify as emergency protective measures. Therefore, FEMA obligated PW 6746 (1545-DR) on July 25, 2005, and PWs 5242 and 5244 (1539-DR) on August 4, 2005, for $0.

The Applicant submitted its first appeal on September 27, 2005, which the State forwarded to FEMA on December 21, 2005. In its appeal the Applicant asserted that “discouraging unscrupulous merchants and opportunists from engaging in price gouging by warning of the consequences, the Applicant-sponsored Price Gouging television public service announcements as well as investigating public assertions of price gouging during the declared emergency helped reduce the threat of disaster victims being unable to purchase vital food supplies, medicines, shelter and other necessary materials, and thereby helped to preserve the strained resources of disaster relief organizations.”

On April 20, 2006, FEMA denied the Applicant’s first appeal stating that although the public service announcements and investigations could potentially protect the public from negative consequences, the Applicant’s efforts did not reduce the immediate threat to lives and improved property and therefore do not meet the definition of Emergency Work as defined in Title 44 of the Code of Federal Regulations (44 CFR) § 206.201(b).

The Applicant submitted a second appeal on July 7, 2006, which was forwarded by the State to FEMA on September 29, 2006. The State in support of the Applicant’s appeal referenced 44 CFR § 206.62(c), which allows the Associate or Regional Director under an emergency declaration to “provide technical or advisory assistance to affected State and local governments for” a variety of services, including the issuance of warnings of risks or hazards and the dissemination of public health and safety information.”

The Applicant’s second appeal asserts that the hurricanes that struck Florida in 2004 created public hardships, and the availability of affordable supplies was essential to avert or lessen further impact as mandatory evacuations forced people to flee from potential great danger. The Applicant further asserts that “the actions taken to discourage price gouging helped ensure disaster victims were able to procure life-essential resources, helping to protect the public health and safety of Florida citizens’ thereby averting greater disaster than was already raining down on these victims.”

The regulation at 44 CFR § 206.62(c) is not applicable as it pertains to technical services provided by FEMA. This appeal is relative to work performed by the Applicant, not technical assistance provided or authorized by FEMA. In accordance with 44 CFR§206.63, the assistance authorized by an emergency declaration is limited to that “essential to save lives, to protect property and public health and safety.” Educating the public on price gouging is not essential to save lives, protect property and public health and safety. Similarly, emergency work is defined in 44 CFR §206.201(b) as “work which must be done immediately to save lives and to protect improved property and public health and safety, or to avert or lessen the threat of a major disaster.” An example of this would be a public service announcement instructing residents where to seek emergency assistance and shelter before and immediately after the disaster. The public service announcements warning of price gouging were not necessary to immediately save lives or to protect improved property and public health and safety. Therefore, I am denying the appeal.

Please inform the Applicant of my decision. This determination constitutes the final decision on this matter pursuant to 44 CFR §206.206.

Sincerely,
/s/
David Garratt
Acting Director of Recovery

cc: Major Phil May
Regional Director
FEMA, Region IV