Time Limitations/Extensions, Request for Public Assistance

Appeal Brief Appeal Letter Appeal Analysis

Appeal Brief

Disaster	4366
Applicant	Kapoho Kai Water Association
Appeal Type	Second
PA ID#	N/A
PW ID#	RPA
Date Signed	2020-11-06T17:00:00

Summary Paragraph

The Kilauea Volcano began erupting on May 3, 2018.  Lava flow from the volcano damaged the infrastructure of Kapoho Kai Water Association’s (Applicant) water distribution system.  The incident period continued until August 17, 2018, and the deadline for submitting Requests for Public Assistance (RPAs) ended on July 9, 2018.  The Applicant submitted an RPA to the Hawaii Emergency Management Agency (Grantee) on March 8, 2018.  The Grantee transmitted the Applicant’s RPA to FEMA on June 12, 2019, along with the Grantee’s request that FEMA accept the late RPA.  FEMA denied the RPA in a July 2, 2019 Determination Memorandum finding the Applicant failed to demonstrate extenuating circumstances beyond its control that would have prevented it from timely submittal of an RPA.  In its first appeal, dated September 7, 2019, the Applicant argued FEMA failed to take into account extenuating circumstances it claimed justified the late submission of its RPA.  Specifically, the Applicant noted at the time of the RPA deadline, its directors were displaced and were unaware of the deadline until several months later, but once made aware, moved quickly to apply for assistance.  The Grantee transmitted the appeal with a letter in support on September 11, 2020.  On April 27, 2020, FEMA denied the first appeal, stating the Applicant did not demonstrate extenuating circumstances existed that justified a late submission of the RPA nearly 8 months after the deadline.  The Applicant files a second appeal reasserting previous arguments and states the circumstances of the disaster differed from other disasters because of the inability to return to the disaster site.

Authorities and Second Appeals

• Stafford Act § 406(a)(3).
• 44 C.F.R. § 206.202(a)-(c), (f).
• PAPPG, at 130.
• North Miami Beach Med. Ctr., FEMA-4337-DR-FL; Milford Redev. And Hous. P’ship, FEMA-4087-DR-CT; Fla. Div. of Cmty. Colleges, FEMA-1679-DR-FL; Church Homes, Inc., FEMA-4046-DR-CT.

Headnotes

• 44 C.F.R. § 206.202(b) and (c) delegate to the Grantee the responsibility to provide technical advice and assistance to all applicants, to ensure all potential applicants are aware of available Public Assistance and the process for requesting assistance, including the relevant deadlines, to submit documents necessary for an award of grants, and to send the completed RPA within the 30 day time period.  The justification must be based on extenuating circumstances beyond the Applicant’s or the Grantee’s control.
• The PAPPG, at 130, sets forth guidelines regarding the Grantee’s responsibility to collect and transmit all RPAs within the regulatory deadline.
• The Applicant’s lack of awareness of the RPA deadline does not constitute extenuating circumstances beyond its own or the Grantee’s control.  As such, the Applicant’s reasons fail to justify an extension by FEMA of the established deadline for submitting the RPA.

Conclusion

The Applicant did not demonstrate its delay in submitting its RPA was due to an extenuating circumstance beyond its or the Grantee’s control to warrant extending the deadline for the RPA.  Therefore, the appeal is denied.

Appeal Letter

Appeal Analysis

Background

On May 3, 2018, the Kilauea Volcano began erupting, with lava flow causing damage on the island of Hawaii.  The lava flow destroyed the water distribution system of the Kapoho Kai Water Association (Applicant), a Private Nonprofit (PNP) entity,  and the Vacationland subdivision it served.  The President declared a major disaster on May 11, 2018 and designated June 9, 2018 as the deadline for submitting Requests for Public Assistance (RPAs)  Due to the continuing nature of the incident, the Hawaii Emergency Management Agency (Grantee) requested an extension to the RPA deadline.  FEMA granted a one-time, 30-day extension to the deadline until July 9, 2018.  The declared incident period continued until August 17, 2018. 

In January 2019, when researching funding options, the Applicant discovered FEMA provided grants to PNPs.  The Applicant submitted a letter dated February 15, 2019 to the Grantee, requesting assistance in obtaining FEMA funding. 

The Applicant thereafter submitted its RPA dated March 8, 2019 to the Grantee.  On June 12, 2019, the Grantee transmitted the RPA to FEMA, recommending approval.  In support, the Grantee explained the lava from the disaster had cut off access to the Kapoho area and residents had to evacuate their homes for temporary shelter.  The Grantee stated that evaluation of damage and potential for rebuilding had been difficult due to the inaccessibility of the area.  The Grantee also stated RPA submission timelines used for disasters like flooding, fire and tsunamis were unreasonable and unfair when applied to continuing disasters like volcanic eruptions.

FEMA denied the Applicant’s RPA in a Determination Memorandum dated July 2, 2019. FEMA found the Applicant failed to demonstrate extenuating circumstances beyond its control that prevented timely submittal of an RPA or from requesting an extension to the deadline from the Grantee.  FEMA also determined the Applicant failed to demonstrate extenuating circumstances beyond its or the Grantee’s control that would have qualified for an exception to the deadline requirements under Title 44 Code of Federal Regulations (44 C.F.R.) § 206.202(f)(2).

 

First Appeal

The Applicant submitted its first appeal on September 7, 2019.  The Applicant stated the unique nature of the lava event resulted in the evacuation of the directors of the PNP, who also lost their housing and all their possessions.  The Applicant stated it had no previous experience with FEMA requirements which could have alerted it to the possibility of requesting assistance and the associated deadline.  The Grantee transmitted the appeal on September 11, 2019, supporting the Applicant.  The Grantee asserted the Applicant’s delay in submitting its RPA was due to extenuating circumstances beyond its control.  It further asserted the Applicant acted quickly upon realizing it had missed the application deadline.

On April 27, 2020, the FEMA Region IX Regional Administrator denied the appeal, determining that the Applicant did not demonstrate extenuating circumstances existed that justified a late submission of the RPA.  Specifically, FEMA found that the Applicant did not present documentation demonstrating extenuating circumstances explaining the nearly 8-month delay in filing its RPA.  In its response, FEMA noted the loss of community and the hardships of living with and recovering from a disaster are not extenuating circumstances that prevent a timely RPA from being submitted.

Furthermore, FEMA determined the Applicant’s lack of previous FEMA experience, lack of awareness of application deadlines, and failure to exert reasonable efforts to uncover information about available assistance similarly did not constitute extenuating circumstances.  FEMA also stated that, under 44 C.F.R. § 206.202(c), the grantee is responsible for ensuring all potential applicants are aware of available Public Assistance (PA), as well as requirements for submitting necessary documentation for grant awards.  Thus, the lack of outreach and insufficient communication between grantees and potential applicants are not extenuating circumstances that prevent the submittal of a timely RPA.

 

Second Appeal

In its second appeal dated June 27, 2020 and transmitted to FEMA by the Grantee on August 8, 2020, the Applicant reiterates its position and arguments from the first appeal.  The Applicant also states it reviewed all other declared disasters in 2018 and determined that, in all those cases, the disaster victims were able to visit the impacted areas to assess damage prior to the RPA submittal deadline.

 

Discussion

Section 406 of the Robert T. Stafford Disaster Relief and Emergency Assistance Act authorizes FEMA to grant funds to PNP entities for critical services, including water.[1]  If an applicant wishes to seek PA funding, it must first submit an RPA to FEMA through the grantee within 30 days after designation of the area where the damage occurred.[2]  The grantee is responsible for providing technical advice and assistance to all eligible applicants, ensuring all potential applicants are aware of available PA, submitting documents necessary for the award of grants, and sending the completed RPA to the RA within the 30-day time period.[3]  FEMA expects the grantee will collect RPAs as soon as possible after the area is designated in the declaration or at the conclusion of the applicant briefing, but will accept RPAs up to the 30-day deadline.[4]

FEMA may extend the deadline for submitting an RPA when the grantee justifies and makes a request for such extension in writing.[5]  The applicant or grantee must base the justification on circumstances beyond their control.[6]

Here, it was the Grantee’s responsibility to ensure the Applicant was aware of available PA.  The Applicant’s lack of knowledge and lack of understanding of the PA Program are not circumstances outside of its or the Grantee’s control.[7]  The Applicant’s RPA was submitted almost 8 months after the deadline passed.  The hardships the Applicant encountered due to the effects of the disaster do not constitute extenuating circumstances beyond the Applicant’s or the Grantee’s control to warrant an extension of the regulatory RPA deadline.

 

Conclusion

Neither the Applicant nor the Grantee has demonstrated extenuating circumstances beyond either’s control to justify submitting the RPA after the required deadline.  Therefore, the second appeal is denied.

 

[1] Robert T. Stafford Disaster Relief and Emergency Assistance (Stafford) Act, as amended, § 406(a)(3), 42 U.S.C. § 5172 (2018).

[2] Title 44 Code of Federal Regulations (44 C.F.R.) § 206.202(c) (2017).

[3] Id. at § 206.202(b)-(c).

[4] Public Assistance Program and Policy Guide, FP 104-009-2, at 130 (Apr. 1, 2018).

[5] 44 CFR § 206.202(f)(2).

[6] Id.

[7] FEMA Second Appeal Analysis, North Miami Beach Med. Ctr., FEMA-4377-DR-CT (Sept. 16, 2020) (finding the Applicant’s lack of knowledge and understanding of the PA program resulting in nearly an 8-month delay in submitting an RPA is not an extenuating circumstance outside of its or the Grantee’s control that would support approval of an untimely RPA); FEMA Second Appeal Analysis, Milford Redev. & Hous. P’ship, FEMA-4087-DR-CT, (Dec. 4, 2013) (finding the Grantee has responsibility to notify PA program applicants of program availability and the Applicant’s lack of understanding of the application process is not an extenuating circumstance beyond Applicant’s control); FEMA Second Appeal Letter, Fla. Div. of Cmty. Colleges, FEMA-1679-DR-FL, (Sept. 11, 2012) (finding that miscommunication causing a delay of five months does not constitute extenuating circumstances beyond the Applicant’s or Grantee’s control to warrant extending the deadline); FEMA Second Appeal Analysis, Church Homes, Inc., FEMA-4046-DR-CT, (Aug. 24, 2012) (noting a breakdown in communication between Grantee and Applicant is not an extenuating circumstance beyond the applicant’s or Grantee’s control to warrant extending the deadline).