Department of Homeland Security
 

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FEMA’s Application of Rules and Federal 


Regulations in Determining Debris Removal 


Eligibility for Livingston Parish, Louisiana 


OIG-14-01-D October 2013
 
 

 

 

 

 

 

 

 

 

 

 

 

 

 

OFFICE OF INSPECTOR GENERAL 

Department of Homeland Security 

Washington, DC 20528 / www.oig.dhs.gov 

October 24, 2013 

MEMORANDUM FOR: Joseph Nimmich 

Associate Administrator, Response and Recovery 

Federal Emergency Management Agency 

FROM: John V. Kelly 

Assistant Inspector General 

Office of Emergency Management Oversight 

SUBJECT: FEMA’s Application of Rules and Federal 

Regulations in Determining Debris Removal 

Eligibility for Livingston Parish, Louisiana 

FEMA Disaster Number 1786-DR-LA (Hurricane Gustav) 

Audit Report Number OIG-14-01-D 

We audited the Federal Emergency Management Agency (FEMA) to determine whether 

it correctly applied its rules and regulations to determine the eligibility of debris removal 

costs that Livingston Parish, Louisiana (Parish), claimed for recovery from Hurricane 

Gustav, which occurred in September 2008. We conducted this audit at the request 

of the Parish and Congress pursuant to the requirements of Section 565 of 

Public Law 113-6. 

We conducted this performance audit between April 2013 and August 2013, pursuant to 

the Inspector General Act of 1978, as amended, and according to generally accepted 

government auditing standards. Those standards require that we plan and perform the 

audit to obtain sufficient, appropriate evidence to provide a reasonable basis for our 

findings and conclusions based upon our audit objective. We believe that the evidence 

obtained provides a reasonable basis for our findings and conclusions based upon our 

audit objective. We conducted this audit by applying the statutes, regulations, and 

FEMA policies and guidelines in effect at the time of the disaster. 

We interviewed FEMA officials at the Louisiana Recovery Office in New Orleans and 

Baton Rouge, Louisiana; FEMA Region VI Office in Denton, Texas; and FEMA 

Headquarters in Washington, DC. We also interviewed officials at the Parish and the 

Governor’s Office of Homeland Security and Emergency Preparedness (GOHSEP), a 

FEMA grantee; reviewed available documentation; researched and reviewed FEMA rules 

and regulations applicable to reviewing claims for Category A work (debris removal) 

under the Public Assistance grant program; and performed other procedures considered 
 

 

 

 

 

 

 

 

OFFICE OF INSPECTOR GENERAL 

 Department of Homeland Security 

necessary to accomplish our objective. We did not assess the adequacy of FEMA’s 

internal controls applicable to grant activities because it was not necessary to 

accomplish our audit objective. We did, however, gain an understanding of FEMA’s 

processes for determining debris removal eligibility. 

BACKGROUND 

High winds and rain from Hurricane Gustav damaged trees throughout the Parish. FEMA 

developed debris removal grant projects for the Parish to remove leaners and hangers, 

clear waterways, and monitor debris removal.1

 FEMA subsequently reduced project 

funding because FEMA deemed some of the costs ineligible. The Parish filed its first 

appeal of FEMA’s unfavorable funding decision for debris removal monitoring and FEMA 

partially granted the appeal. The Parish then filed first and second appeals for the 

leaners and hangers; however, FEMA denied both appeals. The Parish later filed first 

and second appeals for clearing waterways; FEMA denied the first appeal, and, for the 

second appeal, did not make a decision. Instead, FEMA responded to the Parish saying 

that FEMA was no longer reviewing the Parish’s claims because of the Parish’s request 

for this audit by our office. 

We received a letter from the Parish, dated April 3, 2013, and a letter from Senator 

Mary Landrieu, dated April 11, 2013, both requesting an audit pursuant to Section 565 

of the Consolidated and Further Continuing Appropriations Act, 2013, Public Law 113-6. 

SEC. 565. The Inspector General shall review the applications for public assistance 

provided through the Disaster Relief Fund with a project cost that exceeds 

$10,000,000 and the resulting decisions issued by the Federal Emergency 

Management Agency for category A debris removal for DR–1786 upon receipt of a 

request from an applicant made no earlier than 90 days after filing an appeal with 

the Federal Emergency Management Agency without regard to whether the 

Administrator of the Federal Emergency Management Agency has issued a final 

agency determination on the application for assistance: Provided, That not later 

than 180 days after the date of such request, the Inspector General shall 

determine whether the Federal Emergency Management Agency correctly applied 

its rules and regulations to determine eligibility of the applicant’s claim: Provided 

further, That if the Inspector General finds that the Federal Emergency 

Management Agency determinations related to eligibility and cost involved a 

misapplication of its rules and regulations, the applicant may submit the dispute to 

1

“Leaners” are typically storm-damaged trees that pose an immediate threat to lives, public health and 

safety, or improved property. “Hangers” are typically hanging limbs (still attached to trees) that threaten 

public areas. Public Assistance Debris Management Guide (FEMA 325, July 2007, pp. 24-25) sets forth the 

eligibility criteria for leaners and hangers. 

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OFFICE OF INSPECTOR GENERAL 

 Department of Homeland Security 

the arbitration process established under the authority granted under section 601 

of Public Law 111–5 not later than 15 days after the date of issuance of the 

Inspector General’s finding in the previous proviso: Provided further, That if the 

Inspector General finds that the Federal Emergency Management Agency provided 

unauthorized funding, that the Federal Emergency Management Agency shall take 

corrective action. 

RESULTS OF AUDIT 

Although nothing came to our attention to indicate that FEMA’s decisions on the 

eligibility of the Parish’s debris removal costs were not appropriate, FEMA did not 

always follow Federal rules and regulations in making those decisions. Specifically, for 

two appeals (one granted and one denied), FEMA did not respond within the 90-day 

time limit that Federal regulation requires. Finally, in a third instance related to the 

Parish’s second appeal for reimbursement of costs it incurred for clearing waterways, 

FEMA held the appeal for 655 days—more than 21 months—before it responded. 

However, in its response, FEMA did not notify the Parish of its final appeal 

determination, but rather stated that it was no longer reviewing the Parish’s claims 

because of this audit. We did not ask FEMA to stop making eligibility determinations 

because of our audit. However, by not making a decision on this second-level appeal, 

FEMA has, in effect, denied the Parish’s appeal for reimbursement without following 

Federal regulation. 

Criteria for Assessing the Eligibility of Debris 

FEMA’s authorities governing debris removal are supplied by statute, regulation, and 

FEMA policies (see exhibit A). Much of the criteria apply to the applicant, providing 

specific guidance on what debris is eligible and how the applicant must document costs 

for eligible debris removal. However, there are few regulations that instruct FEMA on 

how to apply the criteria, which affords FEMA the flexibility to carry out its mission 

according to the circumstances of each unique disaster. 

Federal regulation 44 CFR 206.206(c)(3) establishes deadlines for FEMA to respond to 

appeals, which generally relate to eligibility decisions or cost reasonableness: 

Within 90 days following receipt of an appeal, the Regional Director (for first 

appeals) or Associate Director/Executive Associate Director (for second appeals) 

will notify the grantee in writing of the disposition of the appeal or of the need for 

additional information. A request by the Regional Director or Associate 

Director/Executive Associate Director for additional information will include a date 

by which the information must be provided. Within 90 days following the receipt 

of the requested additional information or following expiration of the period for 

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OFFICE OF INSPECTOR GENERAL

 Department of Homeland Security 

providing the information, the Regional Director or Associate Director/Executive 

Associate Director will notify the grantee in writing of the disposition of the 

appeal. If the decision is to grant the appeal, the Regional Director will take 

appropriate implementing action. 

FEMA Did Not Always Respond Timely to Appeals 

As table 1 shows, FEMA did not respond timely to the Parish’s appeals in three 

instances. 

Table 1. Untimely Responses to Appeals 

Days 

Date FEMA Date of Date FEMA FEMA 

Project Project Appeal Received Parish Oral Responded Took to 

Numbers Descriptions Type Appeal Presentation to Grantee Respond 

Debris 

166 Monitoring First 06/01/2010 N/A 11/19/2010 171 

Leaners & 

54 Hangers Second 01/18/2011 05/10/2011 01/06/2012 241 

5590, 5591, 

5593, 5594 Waterways Second 09/15/2011 N/A 07/01/2013 655 

FEMA Region VI received a first-level appeal from the Parish, through GOHSEP, 

on June 1, 2010, for debris monitoring under Project 166. FEMA Region VI 

partially granted this appeal, but its November 19, 2010, response was more 

than 2 months beyond the 90-day deadline of August 30, 2010. 

FEMA Headquarters received a second-level appeal from the Parish, through 

GOHSEP, on January 18, 2011, for leaners and hangers under Project 54. The 

Parish also made an oral presentation to FEMA on this appeal on May 10, 2011. 

FEMA Headquarters denied this appeal on January 6, 2012, which was almost a 

year from the date FEMA received the appeal and almost 8 months after the 

Parish’s oral presentation. 

FEMA Region VI initially denied the Parish’s first appeal on leaners and hangers, 

saying that FEMA field staff had performed a thorough assessment to validate 

eligible work, and that a second sampling that GOHSEP performed resulted in 

less eligible work, confirming the reasonableness of FEMA’s determination. 

In its denial of this second-level appeal on leaners and hangers, FEMA 

Headquarters said that FEMA Region VI used the appropriate methodology and 

applied the appropriate regulations and policy to deny the Parish’s claim. FEMA 

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OFFICE OF INSPECTOR GENERAL

 Department of Homeland Security 

Headquarters added that the Parish’s contractor completed ineligible debris 

removal work. 

FEMA Headquarters received the Parish’s second appeal, through GOHSEP, on 

September 15, 2011, for clearing waterways under Projects 5590, 5591, 5593, 

and 5594. Federal regulation 44 CFR 206.206(c)(3) required FEMA to respond by 

December 14, 2011. However, FEMA did not respond until July 1, 2013, more 

than a year after the 90-day deadline. 

FEMA Region VI had previously denied the first-level appeal for waterways 

because the Parish failed to (1) prove immediate threat; (2) comply with 

environmental laws and regulations; and (3) obtain required permits.2 

FEMA Headquarters July 1, 2013, letter to the Parish said that it was no longer 

reviewing the Parish’s claims related to this second appeal because of this Office 

of Inspector General audit.3

 Thus, although FEMA Headquarters did respond, it 

did not notify the Parish of its second appeal disposition. This effectively denied 

the appeal. 

Our audits of debris removal generally assess whether applicants followed Federal 

procurement standards in contracting for the debris-related work and maintained 

documentation to validate and support the costs for the amounts of debris the 

applicants claimed. However, unless the records indicate otherwise, we generally rely 

on FEMA’s expertise to assess the eligibility of the debris itself.4

 FEMA typically 

determines eligibility, soon after the disaster. Such timeliness is essential because, while 

a review of paperwork years later can often prove that debris was not eligible, it can 

seldom prove that debris was eligible. For example, FEMA uses its expertise to decide 

whether (1) the debris resulted from a major disaster event;5

 (2) leaners and hangers 

met eligibility criteria; and (3) applicants removed debris from eligible areas, such as 

2

44 CFR 206.221(c) defines immediate threat as “the threat of additional damage or destruction from an 

event which can reasonably be expected to occur within 5 years.” 3

FEMA’s letter of July 1, 2013, addressed both (1) the Parish’s December 2012 request for reconsideration 

of the second appeal on Project 54 for leaners and hangers and (2) the Parish’s second appeal on Projects 

5590, 5591, 5593, and 5594 for clearing waterways. 

4

Public Assistance Debris Management Guide (FEMA 325, July 2007, p. 23) states, “Only FEMA has the 

authority to make eligibility determinations for Public Assistance grant funding; contractors cannot make 

eligibility determinations.” 

5

44 CFR 206.223(a)(1) states that to be eligible for financial assistance an item of work must be required 

as a result of the major disaster event. 

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OFFICE OF INSPECTOR GENERAL 

 Department of Homeland Security 

publically-owned property, rather than from ineligible areas, such as private property or 

wooded areas that do not threaten the general public.6 

By not issuing a decision on the Parish’s second appeal for the waterways, FEMA failed 

to follow Federal regulation requiring a notice of disposition within 90 days. FEMA 

should assess the lessons learned from its interactions with Livingston Parish and 

consider (1) strengthening its policies, procedures, and internal controls regarding first ­

and second-level appeals to ensure that the agency responds in a timely manner as 

Federal regulation 44 CFR 206.206(c)(3) requires; and (2) documenting the reasons why 

a timely response was not feasible when FEMA cannot complete its determination in 

the specified time. 

Conclusion 

FEMA has an abundance of policies, rules, and regulations regarding how applicants 

should conduct debris removal, but few instruct FEMA on how to apply those criteria in 

assessing the eligibility of debris. However, Federal regulation 44 CFR 206.206(c)(3) does 

impose specific deadlines on FEMA to respond to appeals from a grantee or grant 

applicant. FEMA did not meet these deadlines in three instances; and, in the third 

instance, FEMA did not make a decision on the appeal. 

This audit did not identify any instances where FEMA misapplied any of its policies or 

procedures when it made a determination on the eligibility of the applicant’s claim. 

However, by not making a decision on the eligibility of work in the Parish’s waterways 

second appeal, FEMA, in effect, denied the Parish’s reimbursement without following 

Federal regulation. 

6

Public Assistance Debris Management Guide (FEMA 325, July 2007, p. 22) cites an example of ineligible 

debris removal as any debris removal from an eligible applicant’s unimproved property or undeveloped 

land. The guide also states (p. 33) that private property debris removal is generally not eligible for 

reimbursement because debris on private property does not typically present an immediate health and 

safety threat to the general public. 

www.oig.dhs.gov 6 OIG-14-01-D 
 

 

 

 

 

 

 

OFFICE OF INSPECTOR GENERAL 

 Department of Homeland Security 

MANAGEMENT COMMENTS AND OIG ANALYSIS 

FEMA officials commented verbally and provided us copies of documentation during the 

discussion of our draft report with them at the exit conference on August 14, 2013. On 

August 29, 2013, FEMA provided a written response to the draft report, which we have 

included in its entirety as exhibit B. Below, we summarize FEMA’s verbal and written 

comments and our analysis of those comments. 

FEMA’s Verbal Comments at the Exit Conference 

At the August 14, 2013, exit conference, FEMA officials agreed that they were 

sometimes late in responding to the Parish’s appeals. However, they objected to our 

finding regarding the second appeal of the waterways, saying that the Parish requested 

FEMA suspend the Parish’s appeal request so that it could submit additional 

documentation. FEMA also contended that, because the Parish continued to provide 

FEMA supplemental information, the Parish implied that it wanted FEMA to consider 

the supplemental information in its appeal determination. FEMA said it could, therefore, 

not make a determination within the 90-day requirement. FEMA presented 

documentation that it interpreted as supporting the Parish’s request for FEMA to refrain 

from responding to the appeal until the Parish submitted all its supplemental 

information and oral presentations. 

FEMA’s Written Comments on the Draft Report 

On August 29, 2013, FEMA’s Associate Administrator for Response and Recovery and 

FEMA’s Chief Counsel responded to our draft report saying they did not believe that 

failure to respond timely to appeals constituted a determination related to eligibility 

(see exhibit B). Further, they said our report did not satisfy the OIG’s statutory 

obligation under Section 565 of Public Law 113-6. FEMA asserted the law requires the 

OIG to assess FEMA’s eligibility determinations regarding the eligibility of the Parish’s 

debris removal activities. They also agreed to the need to strengthen FEMA’s policies 

and procedures regarding first and second appeals to ensure timeliness. 

OIG Analysis of FEMA’s Comments 

While we understand FEMA’s interpretation of the law regarding our responsibilities 

under Section 565, we do not agree that the legislation required us to assess FEMA’s 

eligibility decisions. FEMA has few promulgated rules instructing its administration of 

Public Assistance grants; rather, nearly all its rules and regulations are directed towards 

applicants. FEMA stated in its comments that we should have assessed whether it made 

www.oig.dhs.gov 7 OIG-14-01-D 
 

 

 

 

 

 

 

 

 

 

OFFICE OF INSPECTOR GENERAL 

 Department of Homeland Security 

correct eligibility determinations pursuant to 44 CFR 206.223 and 44 CFR 206.224. 

However, 206.223 concerns applicant eligibility not FEMA responsibilities. Section 

206.224 provides merely the factors FEMA should consider in assessing whether 

removing debris is in the public interest. It does not explicitly say how FEMA must 

consider these factors. Therefore, given the nature of the regulations and the fact that 

we were not present in Livingston Parish after Hurricane Gustav, we believe that Section 

565 required us to assess whether FEMA applied its rules in the determination of 

eligibility, not whether FEMA made the correct determination regarding the eligibility of 

the debris work. In that regard, the only instance we noticed as to whether FEMA 

correctly applied its rules and regulations concerned timeliness. Federal regulation 44 

CFR 206.206(c)(3) requires a timely response to appeals, and FEMA did not always notify 

the Parish of its disposition within the required time frame. In one instance, FEMA did 

not make a final decision or issue a final disposition notice. Therefore, FEMA did not 

comply with this Federal regulation. 

We reviewed the documentation FEMA provided at the exit conference to support its 

decision to not issue a final appeal disposition notice. However, the documentation did 

not include a request by the Parish for FEMA to suspend its appeal process. Even if it 

did, such a request would not have prevented FEMA from responding within the time 

frame allowed by Federal regulation. Further, the timeline FEMA provided in its written 

response shows that FEMA received the Parish’s final documentation on February 27, 

2013, and FEMA did not respond to the Parish until July 1, 2013, over a month beyond 

the 90-day response deadline. 

DISCUSSION WITH MANAGEMENT 

We discussed the results of our audit with Parish officials on June 24, 2013, with FEMA 

Region VI officials on July 18, 2013, and with FEMA Headquarters officials on 

July 22, 2013. We also provided a draft report in advance to FEMA officials and 

discussed it at an exit conference with them on August 14, 2013. We have included 

FEMA’s verbal and written comments in this report, as appropriate, and have included 

FEMA’s written response, in its entirety, as exhibit B. 

This report does not contain any recommendations; therefore, you do not need to 

provide our office with a written response. 

Consistent with our responsibility under the Inspector General Act, we will provide 

copies of our report to appropriate congressional committees with oversight and 

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OFFICE OF INSPECTOR GENERAL 

 Department of Homeland Security 

appropriation responsibility over the Department of Homeland Security. We will post 

the report on our website for public dissemination. 

Major contributors to this report are Christopher Dodd, Acting Director; Judy Martinez, 

Audit Manager; and Susan Stipe, Auditor-in-Charge. 

Please call me with any questions at (202) 254-4100, or your staff may contact 

Christopher Dodd, Acting Director, Central Regional Office, at (214) 436-5200. 

www.oig.dhs.gov 9 OIG-14-01-D 
 

 

 

 

 

 

 

 

5207 

OFFICE OF INSPECTOR GENERAL

 Department of Homeland Security 

Exhibit A 

List of Applicable Criteria 

Robert T. Stafford Disaster Relief and Emergency Act, as amended, 42 U.S.C. §§ 5121­

Section 403 Essential Assistance 


Section 407 Debris Removal 


44 CFR 

Section 206.206 Appeals 

Section 206.221(c) defines immediate threat 

Section 206.221(d) defines improved property 

Section 206.223(a)(1) Be required as a result of the major disaster event 

206.224 Debris Removal 

Public Assistance Applicant Handbook, FEMA-323, September 1999 

Public Assistance Debris Management Guide FEMA 325, July 2007 

Public Assistance Guide FEMA 322, June 2007 

Public Assistance Pilot Program—Program Guidance—Guidance for FEMA, State, and 

Local Officials FEMA 598, June 2007 

Public Assistance Policy Digest FEMA 321, January 2008 

Disaster Assistance Policies (DAP), Standard Operating Procedures (SOP), Recovery 

Policies, and Fact Sheets 

9523.11 Hazardous Stump Extraction and Removal Eligibility, May 2007 

9523.12 Debris Operations—Hand-Loaded Trucks and Trailers, May 2006 

9523.13 Debris Removal from Private Property, July 2007 

9570.14 Program Management and Grant Closeout, August 2012 

9580.4 Debris Operations—Clarification Emergency Contracting vs. Emergency 

Work, January 2001 

9580.201 Debris Removal Applicant’s Contracting Checklist, Prepared August 

2006 

9580.202 Debris Removal Authorities of Federal Agencies, January 2007 

9580.203 Debris Monitoring, May 2007 

www.oig.dhs.gov 10 OIG-14-01-D 
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FICE OF INSPECTOR GENERAL 

 Department of Homeland Security 

Exhibit B 

FEMA Response 

11.>;. O.pamn.,.. of UomdllDd s..u~ 

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W.ubint""'· DC !lk 72 

AUG 2 9 ZU13 

MEMOR.I\NDUM I'OR: John V. Kelly 

Assistant Inspector General 

Office of=zmer ency Management Oversight 

._...t!t.~r~ !·ROM: ~cp•y~ lC m- ::::.........._ :S .. Associate Administrator for Response and Recovery 

.('..,Brad 1. Kieserman 

Chief Counsel 

4 / "? / /[ 

StffiJECT: FEMII '11 Application of Rules and Federal Regulalions in 

Dctermi11ing /Jehris Removal £/igihility.for Livi11gston Parish. 

Loui.riana, FEMA Di.~astcr Number 1786·DR-LA (Hurricane 

Gust:1n) Audit Report Number DD 13-## 

The purpose of this memorandum is to pro\'ide FEMA comment to lhe Office oflnspector 

General (010) audit ''to determine whether [FEMA] correctly applied its rules and Federal 

regulations to determine the cligjbility of debris removal cost~ that Living:;ton Parish.. Louisiana 

(Parish) claimed for recovery from Hurricane Gusta\.'. FEMA disagrees lhat a failure to timely 

decide a second level appeal coustiMes a "determination[] related to eligibility." More 

unportantly, fEMA does not agree that the OIG's audit of this matter satisfies its statutory 

obligation to review FEMA decisions for Category I\ debris removal ~ulting from Livingston 

Parish's application for public assistance. 

We respect that it i9 for the 010 to interpret lhe scope of its charge under section 565 of the 

Consolidated and Further Continuing Appropriations Act, 2013, Public Law 113-6. I low the 

010 interprets this statutory requirement, however, di.rcctJy affects whether there will be a 

subsequent arbitrotion and therefore impacts FEMA 's resources and program execution. It is 

FEMA 's view that Scl."lion 565 unequivocally requires the OJG to re~iew "'the applications for 

public assistance,~ received from Livingston Parish. and '1he resulting decisions issued by" 

FEM~ and determine whether those decisions or "determinations" resulted from FEMA 

"correct!)' uppl[ying] its rules and regulation;. to determin~ eligibilit; of the applicant's claim." 

In short. w~: believe the law requires the OJG to examine FEMA 's elij,tibility decisions with 

respect to Livingston Parish debris removal (of which there are many) and issue findings ,o,,-ilh 

respect to whether or not those decisions appropriately comported "'ith FEMA rules and 

regulations or whether they involved a "misapplication" of those rules and regulations. 

lnsteod, the OlG has explicitly stat.:d, "This audit •.. does not opine on the merits or lack tberoof 

concerning Lh•ingston Parish's application for disaster assistance." This is exactly, however, 

'\\hat FEMA believes the law required ofthe OlG when ircharged the OJG with reviewing 

applications for disaster a.o;.'>istanc~ and the resulting FEMA decisions. The OIG's failure to 

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pertbnn such an audit and its rdian.:e instead on the procedurdl i~suc of the timing ofFEMA's 

d~cisions, punts the subs!amive eligibility issue:; !GI lhe Civilian Board of Contracl Appeals 

(CBCA), denying the CBCA the benefit of any findings from the OTG. FBMA believo:s such an 

oul.come is contrary to the explicit language of section 565. Instead. section 565 requires the 

OIG to as8c~ ffi\fA 's elij!.ibility detcrmirunions with res poet to Livingston l'.arish's application 

fo:r assistance thr dcl>ris removal from ils watei"W!l}""S and for leaners and hangers. Such review 

should include an assessment of wile! hilt FEMA IIUide correct el igihility dcterminntiuns in 

Hflplying its rules aud re~uletions, in<:luding 44 Cl;R 206.223 and 206.224, as well as it publllihed 

pol ide~ ou debris removal in the 9500 Seties and ~MA 325, Debris MutUJKf'mem Guide. 

With re$pt:d to time I iness of decision muking on s~cond appeals, we disagree that FEMA 's 1 failun: to mecl.au appecl r~:spunse deadline is a "dcterrninttlion n:latod 11:1 eligibility.~ Tn 

addition, the draft audit re<ponse states "[b]y not making a. decision on this second-levelappcnl, 

FEM.A.. has, m effect, denied thePari~·s a.ppea.l for r::hnbmsement \\~lhnul following: due 

pro-:t:ss unJer· Fcdetal regulation." We di.sagr.::c that a failure by Fl:iM.A, to provide u timely 

response to a first or st:comllevcl appeal is ain effect," 11 denial of the app~;ul. First, the OIG's 

analysis requires <>nfy a dc:tcnnination that FEM.~ failed to adhere to a teg.ulalory requirement; 

any nddiliunal ~eftl;;ct" of such a failure i.-; (rfno impott to this analysis. Second, neither the 

StnfYord Act nor lts implementing regulll!ions require mt exhaustion of administrati vc remedies 

and, in any event, the Slllffiml Act at 42 U.S.C. 5148 "precludes judicial re\·iew" uf discretionary 

agency action. FEMA '~ de..:isions rcgaroing wlu:ther to gr.aut public assistance are "inherently a 

discreti<mury re~ponsibility," and "eligibility delt:nnlnations, .. re~ardlng the funding of eligible 

projects are Steps in this discretionary process." City ofSatt JJruM v. FE1'rU, 181 F. Supp. 2d 

1010, 1014-15 (N.D. CaL 2001); see St. Tammany Par.-~h. ex r~l Dt1¥is v. Fed Jimerger.cy 

Mgmf. Agency, 555 F.3d 307,325-26 (5th Cir. 2009). A fuilw-e by Fh!viA to mcct a statutory or 

regulttlory deadline for nn appeal responso:, thcrcf.;ue, doe~ not have tho "effect'' of providing a 

l'ttblic A:3Sistaoce npplic1111! will1 an avenue to seek, fur example, court revimv. 

Finally, FEiviA agtees on the need to strengthen its policie~ and l'roc~ures regarding first and 

~ud- cvel nppeals to er•surc time!inc.ss, and FEMA h!iS just recently published it~ l'uhlic 

A1sistance l'rogram Appeals directive ancll'u6licAssi3iancc: ProgramAppeall'rocedlo'es 

Jll!II1uallo be exccut~d by a newly t:Stabli.shod Public Assistance Ap~s Bmm:h, Thi~ Branch i~ 

charged with improving I;~MA's appeal proces• lo -provide timely decistoos that prm·idc specific 

and reasoned decisions and also n c:ritical feedback loop to a(hise the Public A11sistancc Program 

on how and wbcr-:: to improve polici~:s and t11e project worksheet fonnulation p1-ocess. 

Significant training and outreuch lo FEM .. .<I,. regional und st11te personnel has already occumlu aud 

will be on-going, 

Thank yon for tile opportunity to cummcut.. If you have nny lldditional questions concemirq1, tltis 

matter, please contact William Roche, Director of the l'uhlic Assistance Divis inn, Ill (202) 64<i-3834. 

1 In filet, with n:spccL tu !he Pnrish's JecQnd 3ppenl t~l w11!~rway debris remoVlll, FEMA t!u::s not Dir-e that il Wt.S 

untimely, Suhsequem to its s:cond npre:;l rr!qOC>!, the l'ari.•h mw 3 FOIArei!U:Iil, an oral p1-eserrtation 1':\lll<''l· 

•n<l d req11eat to •ubmit supplem=ntal infotPt3Liun, Tlte l'ati.t. did nor confirm i;s sc<o.md nppeal iUI>llJission •s Gn.d until February, 211n. Less than on: mooth latcr, P.L. 1 l~·<i wa-.igned io!o Jaw ar~<ltlie 010 informed L'EMA in 

April 2013 !hat tile !':ui.\lt lr>.A r-.:q<~<:>Led a reviev. porsu3nc to section 56S. FEMA U•en stopped !cs second app•"ul 

review- Jess dJan 90 days lium wh..:n111e l':ni•h submlmd it$ fill~ I '''""nd r.ppeal informal inn. I' EM A. thcrefut-c, 

does 00! agree th~~ it violutcc.J ezty rule or regulation wilb JUpcctl<~lltls second appeal. s~c Timeline. at=hed. 

www.oig.dhs.gov 12 OIG-14-01-D

OFFICE OF INSPECTOR GENERAL 

 Department of Homeland Security 
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OF m FICE OF INSPECTOR GENERAL 

Department of Homeland Security 

Liyionton Parish -pebris Appeals in Hurricane Gustav 

Second Appeals Timellne 

• Debris Removallwaterwav~l {PWs 5590, 5591, 5593, 55'14)-The Parish requested $46M for the 

cost of remoVing debris from waterN~ys (dreinage canals/ditches): 

o July 16, 2011 - The Parish submitted tile second appeal to the State. 

o August 9. 2011-The Palish submitted to the State a request for additional infonn~tion 

from FEMA on the projeciS in queslfon. 

o August 17, 201 t-The State fmwarded the request for inrormation to l'EMA ~reference 

FOIA 11-716). 

o ~eptemtler 12, 2011 - The State submitted the Parish's second appnllo FEMA. 

c September 23,2011- The Parish sent a letter to the State reque.~tlng an or~ I 

presentation on the second appeal alld ~ted that they planned to submit additional 

information in support of the appeal. 

<> September 29, 2011- The St<lte forwarded to FEMA the Parish's request for ~nora[ 

presentation. 

~ Nov~mher 28,2011-The St~te ~on finned to FEMI\ in an e-mail that the Parish intended 

to submit additional information i11 support of tlleir second 2ppeal. 

o Oct:>ber 2, 2012 - Th~ FEMA Reoords Manll3ement Division sent to the f'arish a final 

response to its request for additional iniorrnation. The search for r~cords prodU<ed 

12,311 pages, provision or which included six interim releases to the Parish. Of the 

12,:111 p<!ges, 1U,7<7 w~re released in their .:ntirety and 1,572 were detennlned to be 

partially releasable. 

o October 3. 2012 -HMA met with represent<rtives or the Parish on the second appeal. 

lr1 addltlonto the oral pre;entation, the Parish's represent.ative acknowledged receiptor 

the additional information from FEMA and stated titev would review the infurm~tion to 

deteiTtline if tho f'arl.<h would subn1it any further Information on the second appeal. 

o J~nuary 23, 2013 li1~ Parish stated to FEMA in an :1-m;;il that they intend to subrnir 

additional infonnation on the second appeal. 

o February 22, :2013- The Parish st~ted to FEMA in a11 e-mail that they would submit its 

finalsupplementallr.formation on the s~cond appeal the following -.ek. 

o Febru~ry 27,2013- The. Parish submits Its final (4") supplement to FEMA forthe seoond 

appeal. 

o Marth 26, 2013-The Consolidated and Further Continuing Appropriations Act was 

signed Into law(PL 113-6). including a provision allowfne applk:ants to ask ttl¢ OIG to 

review debris removal proj~cts over $10M In Hurricane Gustav. 

a April 22. 2013- DHS OIG Informs FEMA that itt~ reviewing debris removal projects of 

livingston Parish. 

o July 1, 2013- FEMA sent a letter to the State indicating that the appc<ll was under 

review by the OIG as of April 22. 2013, and as of that date It was no longer under review 

byFEMA. 

www.oig.dhs.gov 13 OIG-14-01-D
. 

' m . 

OFFICE OF INSPECTOR GENERAL 

 Department of Homeland Security 

Debris Removal (lttaners and hansers) (PWS4)-The Parish requested $16M for the cost of 

remo\'ing hazardOtJS trees and limbs FEMA provided $2.7M In fundl£11: based on a samjlle 

validation tllat showed 16% of hazardous limbs and 34% of hazardous trees to be eligible: 

o January l2, 2011 - The State forwarded the Parish's second appeal to FEMA. 

::. May 10, 2011- FEMA met with the Parish on the second appeal at the request of tilt! 

Parish. 

o Janua1y 6, 2012 - FEMA denl(!d the second ppeal. 

o December 3, 2012-TI1e Slate forwarded the Parish's rcquo;st ror re-consideration of 

the second appeal. 

o July 1, 2013- FEMA sent it 1etler to t~e State lndlr.ating that the appeal was under 

review by the OIG as of April22, 2013, and as of that date the ~quest for 

reconsideration was no longer under reotiew bv fEMA. 

www.oig.dhs.gov 14 OIG-14-01-D
 

 

 

 

 

 

OFFICE OF INSPECTOR GENERAL 

 Department of Homeland Security 

Appendix C 

Report Distribution 

Department of Homeland Security 

Acting Secretary 

Chief of Staff 

General Counsel 

Executive Secretary 

Director, GAO/OIG Liaison Office 

Assistant Secretary for Office of Policy 

Assistant Secretary for Office of Public Affairs 

Assistant Secretary for Office of Legislative Affairs 

Acting Chief Privacy Officer 

Under Secretary for Management 

Federal Emergency Management Agency 

Administrator 

Regional Administrator, FEMA Region VI 

Chief of Staff 

Chief Financial Officer 

Chief Counsel 

Director, Risk Management and Compliance 

Director, FEMA Louisiana Recovery Office 

Audit Liaison, FEMA Region VI 

Audit Liaison, FEMA (Job Code G-13-037) 

Audit Liaison, FEMA Louisiana Recovery Office 

Office of Management and Budget 

Chief, Homeland Security Branch 

DHS OIG Budget Examiner 

Recovery Accountability and Transparency Board 

Director, Investigations, Recovery Accountability and Transparency Board 

Congress 

Senate Committee on Appropriations, Subcommittee on Homeland Security 

Senate Committee on Homeland Security and Governmental Affairs 

House Committee on Appropriations, Subcommittee on Homeland Security 

House Committee on Homeland Security 

House Committee on Oversight and Government Reform 

www.oig.dhs.gov 15 DD-14-01-D 
 

ADDITIONAL INFORMATION AND COPIES 

To obtain additional copies of this document, please call us at (202) 254-4100, fax your 

request to (202) 254-4305, or e-mail your request to our Office of Inspector General 

(OIG) Office of Public Affairs at: DHS-OIG.OfficePublicAffairs@oig.dhs.gov. 

For additional information, visit our website at: www.oig.dhs.gov, or follow us on Twitter 

at: @dhsoig. 

OIG HOTLINE 

To expedite the reporting of alleged fraud, waste, abuse or mismanagement, or any 

other kinds of criminal or noncriminal misconduct relative to Department of Homeland 

Security (DHS) programs and operations, please visit our website at www.oig.dhs.gov 

and click on the red tab titled "Hotline" to report. You will be directed to complete and 

submit an automated DHS OIG Investigative Referral Submission Form. Submission 

through our website ensures that your complaint will be promptly received and 

reviewed by DHS OIG. 

Should you be unable to access our website, you may submit your complaint in writing 

to: 

Department of Homeland Security 


Office of Inspector General, Mail Stop 0305 


Attention: Office of Investigations Hotline 


245 Murray Drive, SW 


Washington, DC 20528-0305 


You may also call 1(800) 323-8603 or fax the complaint directly to us at 

(202) 254-4297. 

The OIG seeks to protect the identity of each writer and caller.