Other Federal Agency

Appeal Brief

Summary Paragraph

On the incident period date of March 3, 2020, severe storms generated tornadoes, straight-line winds, and flooding across Tennessee. The Applicant requested $384,686.25 in PA funding for repairs to/replacements of traffic control devices at 19 site locations. FEMA prepared GMP 661784, a permanent work project, to capture the claimed work and costs. On May 2, 2022, FEMA issued a Determination Memorandum, denying reimbursement of the $384,686.25, noting that the invoice submitted for the costs included work on federal-aid routes, which are under the authority of the Federal Highway Administration’s (FHWA) Emergency Relief (ER) Program and did not fall within the purview of FEMA’s PA program. The Applicant submitted its first appeal, contending that: 1) the documentation provided was sufficient to establish the Applicant’s legal responsibility for the related repairs; and 2) it did not receive funds from another federal agency for the work. The FEMA Region 4 Regional Administrator partially granted the appeal, awarding $99,446.75 in repair costs for traffic control devices at one of the site locations. FEMA denied the remainder of costs, $285,239.50, because it determined the other sites were located at intersections with federal-aid routes classified as major collectors, minor arterials, or principal arterials and thus fell under the purview of FHWA’s ER Program. The Applicant submitted its second appeal, reiterating its first appeal arguments and emphasizing that it is legally responsible for traffic control device repairs under its governing agency jurisdiction, that its legal responsibility for repairs is consistent with FEMA policy, and that it did not receive funding from FHWA for the work.

Authorities

• Stafford Act §§ 102(10), 406.
• 23 U.S.C. §§ 101, 103, 125. 
• 23 C.F.R. §§ 470.103, 470.107.655.603; 44 C.F.R. §§ 206.206, 206.221(h), 206.223.
• PAPPG at 17, 115-116.
• Martin County, FEMA-DR-FL, at 2-3; Ocean Springs, FEMA-4350-MS, at 3.

Headnotes

• A “public facility” includes “any non-Federal aid street, road, or highway” owned by a State or local government. Road components include associated facilities, such as lighting, sidewalks, and signs. FHWA Federal-aid routes are not eligible for PA reimbursement even if the ER Program is not activated, or if the program is activated but FHWA does not provide funding for the work.
  • The documentation in the record shows the 18 sites at issue are each located at an intersection with a Federal-aid route. Therefore, the traffic control devices are road components of Federal-aid routes and are consequently not associated with eligible public facilities. Even though the Applicant states it did not receive funding from FHWA, the requested repair work associated with the Federal-aid routes is ineligible for PA funding.

Conclusion

The traffic control devices are road components of Federal-aid routes and consequently ineligible for PA funding. Therefore, this appeal is denied.

Appeal Letter

Appeal Analysis

Background

On the incident period date of March 3, 2020, severe storms generated tornadoes, straight-line winds, and flooding across Tennessee. The Applicant requested $384,686.25 in Public Assistance (PA) funding for repairs to/replacements of traffic control devices at 19 site locations.[1] FEMA prepared GMP 661784, a permanent work project, to capture the claimed work and costs. On May 2, 2022, FEMA issued a Determination Memorandum, denying reimbursement of the $384,686.25, noting that the invoice submitted for the costs included work on federal-aid routes, which are under the authority of the Federal Highway Administration’s (FHWA) Emergency Relief (ER) Program and therefore did not fall within the purview of FEMA’s PA program.[2] FEMA observed the Applicant had acknowledged that several signal locations were under FHWA jurisdiction. Additionally, FEMA stated that other sites, which may be the responsibility of the local jurisdiction to maintain, were also classified as federal-aid routes.

First Appeal 

On June 30, 2022, the Applicant submitted its first appeal, stating: (1) certain authorities, such as Chapter 4 of the Tennessee Department of Transportation (TDOT) Traffic Design Manual, TDOT’s Traffic Operations Memorandum No. 2104, and FWHA’s Manual on Uniform Traffic Control Devices, established the Applicant’s legal responsibility for the related repairs;[3] and (2) it did not receive funds from another federal agency for the work. On July 1, 2022, the Tennessee Emergency Management Agency (Recipient) transmitted the Applicant’s first appeal to FEMA with its support. 

On July 18, 2023, the FEMA Region 4 Regional Administrator partially granted the appeal, awarding $99,446.75 in repair costs for traffic signals at 1 of the 19 site locations. FEMA denied the remainder of costs, $285,239.50, associated with the remaining 18 locations because it determined the other sites were located at intersections with federal-aid routes classified as major collectors, minor arterials, or principal arterials and thus fell under the purview of FHWA’s ER Program. FEMA stated that regardless of which entity is responsible for general maintenance, the Agency was prohibited from providing PA funding for damage on FHWA routes.

Second Appeal

On September 15, 2023, the Applicant submitted its second appeal, reiterating its first appeal arguments and emphasizing that: (1) it is legally responsible for traffic signal repairs under its governing agency jurisdiction; (2) its legal responsibility is consistent with FEMA policy; and (3) it did not receive funding from FHWA for the requested work. On September 22, 2023, the Recipient transmitted the Applicant’s second appeal to FEMA with its support.

Discussion

FEMA may provide funding for the repair of public facilities damaged or destroyed as a result of a major disaster.[4] A “public facility” includes “any non-Federal aid street, road, or highway” owned by a State or local government.[5] Road components include associated facilities, such as lighting, sidewalks, and signs.[6] FEMA PA funding is generally not available when another federal agency has the specific authority to restore facilities damaged or destroyed by an event which is declared a major disaster.[7] Other federal agencies have authority to conduct work that may overlap with FEMA’s authority.[8] Permanent work to restore roads is eligible unless restoration is under the specific authority of another agency such as FHWA.[9] Congress has authorized FHWA to restore, under the ER Program, Federal-aid routes which include highways on the Federal-aid highway system and all other public roads, including traffic control systems, not classified as local roads or rural minor collectors that suffer serious damage as a result of a natural disaster.[10] Federal-aid routes are not eligible for PA reimbursement even if the ER Program is not activated, or if the program is activated but FHWA does not provide funding for the work.[11]

Here, the documentation in the record shows the 18 sites at issue are each located at an intersection with a Federal-aid route.[12] Therefore, the traffic control devices are road components of Federal-aid routes and are consequently not associated with eligible public facilities. Although the Applicant asserts that it is legally responsible for the repairs/replacements of the traffic control devices, the issue of whether an applicant has legal responsibility to complete repair work to facilities is different than the issue of whether another federal agency has specific authority to restore the facilities.[13] Here, even though the Applicant states it did not receive funding from FHWA, the requested work associated with the Federal-aid routes is nonetheless ineligible for PA funding.[14] 

Conclusion

The traffic control devices are road components of Federal-aid routes and consequently ineligible for PA funding. Therefore, this appeal is denied.