Timeliness

Appeal Brief

Appeal Letter

Appeal Analysis

Background

During the incident period of June 26, 2006 through July 10, 2006, heavy rains caused extensive overland flooding of the Mohawk River in the State of New York and damaged several facilities that form part of the New York State Barge Canal System, which is owned and operated by the New York State Thruway Authority and Canal Corp. (Applicant).  The President declared a disaster under FEMA-1650-DR-NY and FEMA drafted multiple Project Worksheets (PWs) to capture the damage to the Applicant’s facilities, including PW 4785, which covered damage to the Lock E-15 Lock House and Storage Shed, and the Lock E-13 Storage Shed. 

Then, during the incident periods of August 26, 2011 through September 5, 2011, and September 7, 2011 through September 11, 2011, Hurricane Irene and the Remnants of Tropical Storm Lee caused extensive widespread overland flooding of the Mohawk River and the barge canal system owned and operated by the Applicant.  The President declared disasters under FEMA-4020-DR-NY and FEMA-4031-DR-NY.  FEMA prepared numerous PWs to capture the disaster-related damage to the Applicant’s facilities, including the following:

• PW 2384 – Lock E-10 Power House;
• PW 2448 – Lock E-9 Lock House, Power House, Storage Shed and three Lock Cabins;
• PW 2544 – Equipment, tools, furnishings and other materials from the Lock E-10 Lock House, Control Cabins, Power House and Storage Shed, as well as the Lock E-11 Lock House, Power House and Storage Shed;
• PW 2549 – Equipment, tools, furnishings and other materials from the Lock C-3 Storage Shed, the Lock E-8 Lock House, Power House and Storage Shed, as well as the Lock E-9 Lock House and Power House;
• PW 2551 – Lock E-11 Lock House, Tool Shed, Power House and two Lock Cabins;
• PW 2552 – Lock E-10 Lock House, Storage Shed and four Lock Cabins;
• PW 7991 – Guy Park Manor.

With respect to PWs 2384, 2551, 4785, and 7991, FEMA applied a mandatory reduction pursuant to Section 406(d) of the Stafford Act because the facilities were insurable buildings under the National Flood Insurance Program (NFIP), were located in a Special Flood Hazard Area (SFHA) identified for more than one year, and were not covered by flood insurance at the time of the declared event.  Consistent with Section 406(d) of the Stafford Act, FEMA reduced funding for each PW by the amounts that would have been payable under a Standard Flood Insurance Policy (SFIP) for the damages to the facilities had they been covered by a SFIP at the time of the flooding. 

For PWs 2448, 2544, 2549, 2551 and 2552, FEMA determined that it had provided assistance for the applicable facilities under a prior declared event, but the Applicant failed to obtain and maintain insurance as required under Section 311 of the Stafford Act.  As such, FEMA deducted the estimated costs to restore those facilities from their respective PWs.[1]  

First Appeal

Between November 2012 and April 2015, the Applicant submitted eight separate first appeal letters to the New York State Division of Homeland Security and Emergency Services (Grantee) concerning FEMA’s reductions in funding for PWs 2384, 2448, 2544, 2549, 2551, 2552, 4785, and 7991.  In its appeals, the Applicant argued that it was covered by the State of New York’s self-insurance plan that was approved by the Federal Insurance Administrator.  Thus, the Applicant asserted that FEMA’s insurance requirements were satisfied and no deductions should have been taken. 

FEMA sent multiple Requests for Information (RFIs) to the Grantee and Applicant between June 16, 2015 and January 4, 2017, requesting documentation relating to the State’s self-insurance plan and coverage.  Neither the Grantee nor Applicant responded to the RFIs until January 6, 2017, when the Grantee submitted a response by e-mail, stating that it had intended that its June 23, 2016, response to numerous RFIs for appeals from various State agencies related to insurance reductions to cover all open appeals in this category.[2]  The June 23, 2016, response stated:

• Where there is an actual and enforceable obligation to cover costs relating to damage to State facilities, such liabilities are satisfied by State funds through an established process; 

   

• There is no documentation that specifically establishes a definable obligation to transfer money from the insurer to the State with respect to the damage to the facilities at issue which shows the State’s self-insurance affirmatively applies to the facilities at issue at the time of disaster;

   

• There is no documentation that shows the State’s self-insurance affirmatively applied to the facilities at issue at the time of the disaster; and

   

• The State’s funding process does meet its obligation for coverage in the event of an occurrence when required of the State.  In the present case, and with respect to the Applicant’s facilities, the State maintains no such obligation. [3]

On December 22, 2016, and December 23, 2016, the FEMA Region II Regional Administrator (RA) issued the first appeal determinations for PWs 2384, 2448, 2549, 2551, 2552, and 7991.  The RA upheld the insurance-related reductions, finding that the Applicant failed to provide any documentation, plan or policy demonstrating the State’s self-insurance, documentation demonstrating that the Applicant satisfied the obtain and maintain insurance requirement, or any other documentation showing the insurance reductions were improper.  The Applicant received notice of these first appeal determinations on December 28, 2016.[4]  On January 26, 2017, the RA issued the first appeal determinations for PWs 4785 and 2544.  Again, the RA upheld the insurance-related reductions.  The Applicant received notice of these first appeal determinations on January 30, 2017.[5]  Each of the first appeal determination letters issued by the RA advised the Applicant that it had 60 days from the date of receipt to submit a second appeal to the Grantee.   

Second Appeal

The Applicant appealed the RA’s decisions in one consolidated memorandum to the Grantee dated May 24, 2017.[6]  The Applicant argues that the State is self-insured and exempt from the Stafford Act requirements to purchase flood insurance pursuant to 44 C.F.R. § 75.14.  “Because the State is legally exempted from the flood insurance requirement, there is no insurance requirement and no obtain and maintain requirement for the State to fulfill with respect to the damages at issue.”[7]  The Applicant also states that the damages to the facilities at issue were not reimbursed from any insurance or other source, so there is no conflict with Stafford Act Section 312’s prohibition on duplication of benefits.  The Applicant has not received any other assistance for these facilities and no other benefits are available from any other source.[8]  Finally, the Applicant claims that Stafford Act Section 705(c) prohibits any deobligation of the disputed amounts.  The Applicant requests reinstatement of the funds deducted from the PWs. 

Discussion

The Robert T. Stafford Disaster Relief and Emergency Assistance Act (Stafford Act) § 423 provides that “[a]ny decision regarding eligibility for, from, or amount of assistance under this title may be appealed within 60 days after the date on which the applicant for such assistance is notified of the award or denial of award of such assistance.”[9]  44 C.F.R. § 206.206(c)(1) implements that provision and states that applicants must submit appeals within 60 days of receipt of the notice of the action that is being appealed.[10]  Neither the Stafford Act nor 44 C.F.R. provides FEMA with authority to grant time extensions for filing appeals.[11]

Between December 22, 2016 and January 26, 2017, FEMA issued first appeal decisions for the PWs at issue.  By January 30, 2017, the Applicant had received notice of each of these first appeal decisions.  Thus, pursuant to 44 C.F.R. § 206.206(c)(1), the Applicant had 60 days to file its second appeals.  The Applicant did not submit its second appeal to the Grantee until May 24, 2017, 114 and 147 days after receiving notice of the appealable actions.  Accordingly, FEMA finds that the Applicant’s second appeal is untimely and therefore is denied.

Conclusion

The Applicant did not file its second appeal within the required timeframe established by Stafford Act § 423(a) and 44 C.F.R. § 206.206(c)(1).  Consequently, the second appeal is denied.