Work must be the Legal Responsibility of the applicant at the time of the disaster  to be eligible.  Ownership of the facility is generally  sufficient to establish  the responsibility for work to repair the facility. However, if the applicant leases the facility as a tenant, repairs to that facility are not eligible unless the lease specifically states that the lessee is responsible for the repairs. A copy of the lease agreement should  be provided to FEMA to determine responsibility. The lease usually contains general repair  and  maintenance language; however, responsibility for damage resulting from a disaster may not be established. In the absence  of any mention in the lease, the owner of the facility is assumed  to be responsible for the repair.

When an applicant leases an owned facility to a tenant, the lease should be examined to establish  responsibility for disaster repairs.

Facilities  owned  by Federal  agencies  typically are  not  eligible  for public  assistance. Some Federal  agencies,  however, own facilities but turn responsibility for operation and maintenance of these facilities over to local agencies.  These  may be eligible  for public  assistance.  An example could be reservoirs  and  water delivery systems constructed by the U.S. Bureau  of Reclamation.

Roads on U.S. Government Trust  Lands  are the  responsibility of the Bureau of Indian Affairs. However, other roads on Tribal lands may be eligible if the Tribe  is included in the Federally Recognized Indian Tribal  List Act of 1994.

Debris removal from private property generally is not eligible (see Debris Removal).

To be eligible, work must be the legal responsibility of the Applicant requesting assistance.76 To determine legal responsibility for Emergency Work, FEMA evaluates whether the Applicant

requesting the assistance either had jurisdiction over the area or the legal authority to conduct the

work related to the request at the time of the incident.

To determine legal responsibility for facility restoration, FEMA evaluates whether the Applicant claiming the costs had legal responsibility for disaster-related restoration of the facility at the time of the incident based on ownership and the terms of any written agreements (such as for facilities under construction, leased facilities, and facilities owned by a Federal agency).

(a) Facility Ownership

When an Applicant requests PA funding to restore a facility, it is the Applicant’s responsibility to provide proof that it owns the facility. To determine ownership, FEMA may review deeds, title documents, and local government tax records.

Ownership of a facility is generally sufficient to establish the Applicant’s legal responsibility to restore the facility, provided it is not under construction by a contractor or leased to another entity at the time of the incident.

(b) Facilities under Construction

If the facility is under construction by a contractor at the time of the incident, FEMA reviews the contract to determine whether the Applicant is legally responsible for the repair of damage caused by the incident.77 At a minimum, FEMA evaluates the contract to determine if it:

• Identifies the contractor or owner as being responsible for disaster-related repairs;

• Requires a builder’s risk policy for losses that occur while the contractor has control of the facility;

74 44 CFR § 206.223(e).

75  44 CFR § 206.223(a)(2).

76  44 CFR § 206.223(a)(3).

• Has a Force Majeure provision, which is a clause that relieves the contractor from responsibility for damage beyond its reasonable control, such as natural disasters (often referred to “acts of God”) or acts of war; or

• Has a provision that identifies the point at which the contractor transfers legal responsibility for the facility, or portions of the facility, back to the owner.

(c) Leased Facilities

An Applicant may own a facility and lease it to a tenant, or an Applicant may lease a facility owned by another party. In either case, FEMA reviews the lease agreement to determine legal responsibility for repair of damage caused by the incident. If the lease does not specify either party as responsible, FEMA considers the owner of the facility legally responsible for the costs to restore the facility.

If the lease is between two eligible Applicants, FEMA provides PA funding to the Applicant legally responsible for the restoration.

(d) Federal Facilities

Facilities owned and maintained by Federal agencies are not eligible. However, if a Federal agency constructed a facility and formally designated the Applicant as the legally responsible entity for facility operation, maintenance, and repairs, then the facility is eligible. FEMA reviews the agreement between the Federal agency and the Applicant to confirm the legally responsible entity.

(e) Jurisdiction over an Area

In general, an Applicant only has legal responsibility to conduct Emergency Work activities within its jurisdiction. If an Applicant conducts Emergency Work activities outside its jurisdiction, it must demonstrate its legal basis and responsibility to conduct those activities.

(f) Conducting Activities on Private Property

To determine whether a State, Territorial, Tribal, or local government has legal responsibility to conduct activities on private property, FEMA reviews the Applicant’s legal basis and authority to conduct the activities.

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