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Second Appeal Letter
PA ID# 000-FUOIQ-00; State Emergency Management Office
PW ID# N/A; Regular Time Costs for Emergency Work and Increased Security Measures
June 17, 2003
Mr. John A. Agostino
Alternate Governor’s Authorized Representative
1220 Washington Avenue
Building 22, Suite 101
Albany, New York 12226-2251
RE: Second Appeals: State Emergency Management Office, PA ID # 000-FUOIQ-00, Regular Time Costs for Emergency Work and Increased Security Measures, FEMA-1391-DR-NY
Dear Mr. Agostino:
This is in response to your letters of December 16, 2002, and December 27, 2002, making second appeals “on behalf of all counties” with regular time costs for emergency work and/or for increased security measures following the attack on the World Trade Center. To the extent the State considers these letters “statewide” appeals to which the Federal Emergency Management Agency (FEMA) is requested to provide a disposition for all counties in New York, the appeals are denied. In accordance with 44 CFR §206.206, an appeal must be from a “determination previously made related to an application for or the provision of Federal assistance . . .” Also, the appeal must contain “the monetary figure in dispute. . .” The State’s letters on behalf of all counties do not represent an appeal from a specific determination for a specific applicant nor do they specify a monetary figure in dispute.
With respect to the second appeals for the Counties of Albany, Monroe, Nassau, Suffolk, Ulster, and Wayne, FEMA has reviewed these appeals and notes that some of the sub-grantee letters enclosed with your correspondence contain a mixture of costs in both categories. For this reason, I am making the following determinations for the types of costs listed in paragraphs below for the six applicants in this disaster represented by your appeals.
Regular time of permanent employees doing emergency work within an applicant’s own jurisdiction is ineligible under 44 CFR §206.228(a)(4), which states that “straight or regular time salaries and benefits of a subgrantee’s permanently employed personnel are not eligible in calculating the cost of eligible work under sections 403 and 407 of the Stafford Act.”
In response to the incident, numerous counties and municipalities came to the aid of New York City under written or verbal mutual aid agreements. Regular time for these personnel was deemed ineligible because regular time for the existing local New York City workforce was also ineligible. This policy was implemented by the waiver letter dated November 1, 2001, for FEMA 1391-DR-NY (copy enclosed). However, expenses for backfilling these mutual aid employees who worked at the World Trade Center site are eligible for reimbursement. If any of these six applicants have such expenses they should submit them to Walter Melnick, FEMA’s Public Assistance Officer 30 days from the date of this letter. Reimbursement of backfill employees filling in for personnel activated by the military (or National Guard) is not eligible, since they were not working under an actual mutual aid agreement.
Costs for applicants’ increased security measures are addressed at 44 CFR §206.223(a)(1), which states, “[t]o be eligible for financial assistance, an item of work must: . . . [b]e required as the result of the major disaster event.” Those activities occurring outside the actual World Trade Center site are not eligible. While it is accurate that we did grant designation status for the counties, it was for the express purpose of assisting in the recovery effort at the World Trade Center site. Therefore, increased security costs outside the World Trade Center site are not eligible.
Except for the special category of backfill costs noted above, the appeals are denied. By copy of this letter, I am requesting the Regional Director to implement this action. Please inform the applicants of my decision. My determination is the final decision on this matter in accordance with 44 CFR §206.206. The denial of the greater portion of this appeal does not preclude FEMA from considering the costs requested as “associated” costs pursuant to authority recently provided FEMA in the Consolidated Appropriations Resolution, 2003, P.L. 108-7.
Laurence W. Zensinger
Acting Director, Recovery Division
Emergency Preparedness and Response Directorate
Department of Homeland Security
cc: Joseph F. Picciano
Acting Regional Director