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Second Appeal Analysis
PA ID# 000-U0065-00; New York State Department of Transportation
PW ID# PW 2595; Appeal Timeliness, Support Documentation
Tropical Storm Lee caused damage throughout the State of New York from September 7 to September 11, 2011, which prompted the New York State Department of Transportation (Applicant) to activate its Statewide Transportation Incident Coordination Center (STICC) and Regional Emergency Operations Centers (EOCs) in order to provide: (1) coordination of the Applicant’s assets and personnel; (2) administrative support for the affected regions; (3) information to the public regarding travel, closures, detours, and damaged areas; and (4) support for local agencies as requested by the New York State Division of Homeland Security and Emergency Services (Grantee). FEMA prepared Project Worksheet (PW) 2595 to document the Applicant’s costs for overtime hours incurred by its force account labor to perform emergency protective measures.
On June 20, June 27, and July 3, 2012, a FEMA Project Specialist notified the Applicant of its “responsibility to provide the necessary documentation to produce this project worksheet.” 
After contacting the Applicant multiple times, FEMA received no documentation of the force account labor overtime costs incurred. Consequently, FEMA obligated zero dollars for PW 2595, and sent notification of its determination on May 2, 2013.
In a letter dated June 27, 2013, the Applicant appealed FEMA’s determination to obligate zero dollars for PW 2595, and requested $172,699.11 in force account labor overtime costs incurred to operate the STICC and EOCs.
The Applicant argued that it was unable to submit documentation of its claimed costs in a timely manner due to the magnitude of the disaster and its lack of staff. The Applicant’s support documentation for its appeal included a labor expense report and a self-selected sampling of timesheets for some of its STICC and EOC personnel.
The labor expense report included information for 317 timesheets covering two-week pay periods for some of its personnel, which included pay period dates, hours worked for regular pay and overtime pay, and regular and overtime pay rates. The Applicant also explained that it would make all other timesheets available for review at its office upon request.
The Grantee submitted the first appeal to FEMA with a recommendation letter dated August 5, 2013, and an attached support memorandum.
In its memorandum, the Grantee argued that FEMA should grant the appeal because the claimed force account labor overtime costs and underlying work would have been deemed eligible if the Applicant had provided the proper support documentation. The Grantee also stressed that the Applicant provided a sufficient random sample of documentation in accordance with FEMA policy, and offered to make all other documentation available upon request. Lastly, the Grantee explained that it conducted a review of the Applicant’s support documentation, and found it sufficient to satisfy the requirements outlined in the PA Guide
FEMA issued a Final Request for Information (RFI) on September 25, 2015, advising the Applicant that the appeal would likely be denied due to lack of supporting documentation.
FEMA requested that the Applicant provide any other information supportive of its appeal, such as: (1) evidence to support that the work associated with the claim constitutes eligible emergency protective measures;
(2) the Applicant’s written overtime policy;
(3) FEMA’s Force Account Labor Summary Form 90-123 signed by the Applicant’s authorized representative certifying that the information was obtained from records that are available for audit;
(4) a completed Applicant’s Benefit Calculation Worksheet, Form 90-128, or equivalent; and (5) the status of each employee (e.g., permanent, temporary, etc.) at the time the work was performed, per the PA Guide
The Applicant responded on November 5, 2015, with a letter explaining that it utilized 8,418 regular hours and 3,561 overtime hours of force account labor when it activated its STICC and EOCs to perform functions such as command, operations, planning, logistics, and finance and administration.
The Applicant also provided additional documentation such as: (1) a copy of the New York State Governor’s Executive Order #17 declaring a disaster for Hurricane Irene (but not Tropical Storm Lee); (2) a labor expense report listing each employee’s status, job title, and hours worked; and (3) its personnel policies pertaining to overtime and compensation during emergency situations, which state “overtime shall mean only hours worked in excess of 40 hours in any workweek,” and a “workweek shall mean a regularly recurring period of 168 hours in the form of seven consecutive 24-hour periods.”
The FEMA Region II Regional Administrator (RA) denied the appeal on March 25, 2016. The RA found that the Applicant did not demonstrate the costs were incurred for eligible emergency protective measures because it did not provide documentation describing the activities and the locations of the work performed. The RA also determined that the Applicant did not provide documentation showing that each employee worked the full work week of regular hours before accumulating overtime hours in accordance with its pay policies. Furthermore, the RA pointed out that the labor expense report was not certified by the Applicant’s authorized representative affirming the information was obtained from records available for audit.
The RA also found that the timesheets indicate some of the work was not disaster-related, and some of the claimed overtime should have been considered unpaid compensatory time according to the Applicant’s pay policies. Finally, the RA emphasized that the Applicant’s sampling of documentation was insufficient to substantiate its claims because Title 44 of the Code of Federal Regulations (44 C.F.R.) § 206.206(a) requires the Applicant to submit all documentation to justify its appeal, not just a sampling.
In a letter dated May 25, 2016, the Applicant appeals the RA’s decision and requests $172,699.11 in force account labor overtime costs incurred for emergency protective measures.
On second appeal, the Applicant argues that documentation previously submitted in response to the Final RFI justifies approval of the appeal, and reiterates that the requested overtime costs were incurred when it activated the STICC and EOCs. The Applicant also submitted additional support documentation with the second appeal, which includes its Incident Command Procedures for three STICC positions (i.e., Information Officer, Finance and Administration Section Chief, and Liaison Officer).
The Grantee submitted the second appeal to FEMA with a recommendation letter dated August 8, 2016, and an attached support memorandum.
In its support memorandum, the Grantee argues that the Applicant was only required to provide documentation of the claimed costs, and claims that a comment in the Emergency Management Mission Integrated Environment (EMMIE)
dated October 29, 2012, notes that “the PW was eligible, but that the costs needed to be documented.”
In addition, the Grantee emphasizes that the Applicant might have had access to the information needed to create daily work logs if FEMA would have requested them during the PW’s initial preparation, but it was impossible for the Applicant to retrospectively create the work logs upon FEMA’s request in the Final RFI four years later. The Grantee also asserts that that the Applicant provided each employee’s job title in its labor expense report, and work locations are discernable in the sampling of lodging receipts submitted with its appeal for FEMA-4031-DR-NY, PW 2594. Further, the Grantee states that the employee job titles provided with the Applicant’s November 5, 2015 Final RFI response adequately describe the work performed, and the Incident Command Procedures for three STICC positions submitted with the second appeal are a sufficient substitute for daily work logs.
The Robert T. Stafford Disaster Relief and Emergency Act (Stafford Act) § 423 provides that: “[a]ny decision regarding eligibility for, from, or amount of assistance under this title may be appealed within 60 days after the date on which the applicant for such assistance is notified of the award or denial of award of such assistance.”
Furthermore, 44 C.F.R. § 206.206(c)(2) requires the grantee to review and forward an applicant’s appeal, together with a written recommendation, to the FEMA RA within a 60-day timeframe triggered by the date the grantee receives the applicant’s appeal.
Neither the Stafford Act nor 44 C.F.R. provides FEMA with authority to grant time extensions for filing appeals.
The Grantee received the Applicant’s second appeal on May 25, 2016, which it transmitted to FEMA with a letter dated August 8, 2016.
FEMA Region II received it on August 12, 2016.
As the Grantee forwarded the second appeal beyond the 60-day timeframe stipulated by 44 C.F.R. § 206.206(c)(2), the submission is untimely. Timeliness aside, the Applicant’s second appeal would otherwise be denied because it did not comply with other appeal procedures.
Pursuant to 44 C.F.R. § 206.206(a), an appeal must contain documented justification supporting an applicant’s position.
The burden to fully substantiate appeals with documented justification falls exclusively to the applicant and hinges upon its ability to produce its own records and to clearly explain how those records should be interpreted as relevant to support the appeal.
In considering the second appeal, FEMA must rely exclusively upon the administrative record. In order to establish eligibility of the Applicant’s force account labor overtime costs requested on appeal, the administrative record must contain information demonstrating those costs are directly tied to the performance of eligible work.
More specifically, the record must include the information necessary to substantiate the Applicant’s claim that its force account labor overtime costs were incurred in the performance of emergency protective measures. Under the PA program, it is the applicant’s responsibility to document all costs and to provide FEMA with the necessary documentation supporting the eligibility of its claims.
Both the PA Applicant Handbook
and PA Guide
provide detailed information on the documentation and record keeping requirements for PA projects, as well as recommended best practices.
Section 403(a) of the Stafford Act, as implemented by 44 C.F.R. § 206.225, authorizes FEMA to reimburse costs for emergency protective measures necessary to eliminate or lessen immediate threats to life, public health, safety, and improved property.
Examples of eligible emergency protective measures include “clearance of roads . . . necessary to the performance of emergency tasks” and “dissemination of public information and assistance regarding health and safety measures.”
An applicant’s activation of a State or local EOC may also be eligible as an emergency protective measure, but the applicant must keep track of the duties performed by EOC personnel.
Only overtime labor is eligible for an applicant’s nonexempt employees performing emergency protective measures, regardless of whether the tasks performed were the employees’ normal or reassigned duties.
Overtime for nonexempt employees and compensatory time for exempt employees is determined in accordance with the applicant’s predisaster policies,
which should be applied consistently in both disaster and non-disaster situations.
The Applicant argues that it incurred the claimed force account labor overtime costs in the performance of emergency protective measures to save lives and to protect public health and safety when it deployed its force account labor and activated the STICC and Regional EOCs. However, the Applicant’s support documentation provides no description of the activities or locations of actual work performed, not did it describe any specific eligible emergency protective measures its personnel performed in connection with the claimed costs. Its documentation consists of a labor expense report listing information for 317 timesheets and a sampling of 43 employee timesheets, which include no information about the underlying work performed. The Applicant was also required to keep track of the work performed by its EOC personnel,
but did not provide that information in its support documentation.
The Grantee claims that the Applicant provided adequate descriptions of the work by providing employee job titles
in its Final RFI response, and the STICC Incident Command Procedures submitted by the Applicant on second appeal are a sufficient substitute for daily work logs.
The Grantee also insists that the work locations are discernable from the lodging invoices provided in the Applicant’s sampling of travel expense documentation submitted with its appeal for PW 2594. Even if the travel expense documentation and Incident Command Procedures submitted on second appeal could be included in the administrative record, both do not describe any of the actual work performed, nor do they provide any information needed to demonstrate the underlying work’s eligibility. Also, the lodging invoices contain some of the lodging locations associated with the Applicant’s claim, but the Grantee does not explain how or why the lodging invoices have any relevance to the work locations.
The Grantee argues that it was impossible for the Applicant to retrospectively create daily work logs with the level of detail requested in the Final RFI, and FEMA should have requested that information from the Applicant four years earlier. As noted in the PW, a FEMA Project Specialist made the Applicant aware of its “responsibility to provide the necessary documentation to produce this project worksheet” on June 20, June 27, and July 3, 2012, and received no documentation supporting the Applicant’s claim before obligating zero dollars for PW 2595 in October 2012.
Regardless, it is the Applicant’s responsibility to document all costs and to provide FEMA with the necessary documentation supporting the eligibility of its claims even if FEMA does not specifically request it.
Lastly, the Applicant’s documentation contains inconsistencies and patterns of deviation that have not been explained to justify eligibility.
For example, the Applicant’s pay policy requires employees to work 40 hours per workweek before they are eligible for overtime, but its labor expense report reflects 155 instances of overtime claimed in timesheets with less than 40 hours of regular time logged over an entire two-week pay period.
In addition, the Applicant’s sampling of 43 timesheets included 23 timesheets referencing Hurricane Irene (FEMA-4020-DR-NY) as the purpose of work.As explained above, the Applicant did not demonstrate the eligibility of its claimed force account labor overtime costs, nor did it show those costs were tied to eligible work. Consequently, the Applicant’s second appeal is not supported with documented justification in accordance with 44 C.F.R. § 206.206(a).
The Applicant’s second appeal is untimely because the Grantee submitted it beyond the timeframe stipulated by 44 C.F.R. § 206.206(c)(2). Timeliness aside, the appeal does not comply with 44 C.F.R. § 206.206(a), which requires the Applicant to substantiate its appeal with documented justification. Accordingly, the Applicant’s second appeal is denied.
FEMA also prepared PW 2594 separately documenting travel expenses associated with the labor performed under PW 2595.
Project Worksheet 2595, New York State Department of Transportation, Version 0 (Oct. 25, 2012).
Letter from Dir. of Accounting Bureau, N.Y. State Dep’t of Transp., to Project Officer, N.Y. State Div. of Homeland Sec. and Emergency Servs. (June 27, 2013). The Grantee did not submit the Applicant’s first appeal letter to FEMA until after the administrative record had already closed. However, the Grantee’s first appeal letter included a support memorandum reiterating the Applicant’s appeal claims and all support documentation attached with the Applicant’s first appeal letter.
The Applicant stated that it provided a sampling of 40 timesheets, but it actually provided 43 timesheets. In 23 of the 43 timesheets, Hurricane Irene was referenced (by name or project identification number: “AX1905701”) as the purpose of work.
Letter from Alternate Governor’s Authorized Representative, N.Y. State Div. of Homeland Sec. and Emergency Servs., to Acting Reg’l Adm’r, FEMA Region II (Aug. 5, 2013). The Applicant’s first appeal letter is not in the administrative record because it was not transmitted to FEMA before the administrative record closed, but the attachments included with that letter were transmitted by the Grantee on August 5, 2013.
at Attachment (citing to the Public Assistance Guide
, FEMA 322, at 103 (June 2007) [hereinafter PA Guide
Letter from Recovery Div. Deputy Dir., FEMA Region II, to Dir. of Accounting Bureau, N.Y. State Dep’t of Transp., and Alt. Gov. Auth. Repr. N.Y. State Div. of Homeland Sec. and Emergency Servs., at 1 (Sept. 25, 2015).
at 2 (advising the Applicant to refer to the PA Guide
at pages 54–55 and 71–74 for guidance on whether the claimed costs constitute ineligible increased operating expenses rather than eligible emergency protective measures).
(explaining that overtime costs are determined by the Applicant’s predisaster overtime policy according to FEMA Recovery Policy RP 9525.7, Labor Costs, Emergency Work
(stating that this form must document the claimed force account labor costs, and include the job title of each employee, and a weekly summary of each employee’s regular and overtime hours worked with corresponding dates).
Letter from Dir. of Accounting Bureau, N.Y. State Dep’t of Transp., to Recovery Div. Deputy Dir., FEMA Region II, at 1 (Nov. 5, 2015) [hereinafter Applicant’s RFI Response
Letter from Dir. of Accounting Bureau, N.Y. State Dep’t of Transp., to Disaster Assistance Officer, N.Y. State Div. of Homeland Sec. and Emergency Servs. (May 25, 2016). The Applicant submitted additional documentation on second appeal, such as its STICC’s Incident Command Procedures for the positions of Information Officer, Finance and Administration Section Chief, and Liaison Officer. However, this documentation will not be considered by FEMA on second appeal because the Applicant submitted it after the administrative record closed.
Letter from Comm’r, N.Y. State Div. of Homeland Sec. and Emergency Servs., to Reg’l Adm’r, FEMA Region II, at 1 (Aug. 8, 2016).
EMMIE is FEMA’s internet-based grants management system.
While there is no such comment in EMMIE for PW 2595, there is a comment in PW 2595’s workflow dated October 19, 2012, which states: “Work appears eligible. The P.S. has not been able to obtain supporting documentation for this project and has made it a zero dollar project.”
The Robert T. Stafford Disaster Relief and Emergency Assistance Act of 1988, Pub. L. No. 93-288, § 423(a), 42
U.S.C. 5189a (2007).
44 C.F.R. § 206.206(c)(2) (2010).
FEMA Second Appeal Analysis, Florida Dep’t of Transp.
, FEMA-1785-DR-FL, at 3 (July 19, 2016) (citing FEMA Second Appeal Analysis, Broward County School Board of Florida
, FEMA-1609-DR-FL, at 2 (Sep. 4, 2014)).
Email from Assoc. Accountant, Accounting Bureau, N.Y. State Dep’t of Transp., to Disaster Assistance Officer, N.Y. State Div. of Homeland Sec. and Emergency Servs. (May 25, 2016, 11:01 AM) (transmitting the Applicant’s second appeal letter to the Grantee via email attachment).
Memorandum from Reg’l Adm’r, FEMA Region II, to Assistant Adm’r, Recovery Directorate, FEMA (Aug. 18, 2016) (confirming that FEMA Region II received the Grantee’s second appeal transmission on August 12, 2016); see also Grantee’s Second Appeal Letter
(displaying a date stamp confirming FEMA received the appeal from the Grantee on August 12, 2016).
44 C.F.R. § 206.206(a).
FEMA Second Appeal Analysis, Village of Waterford
, FEMA-4020-DR-NY, at 4 (Sep. 4, 2014); FEMA Second Appeal Analysis, Department of Transportation
, FEMA-4068-DR-FL, at 5 (Aug. 5, 2016).
 Public Assistance Applicant Handbook
, FEMA P-323 (March 2010), at 32–34 [hereinafter PA Applicant Handbook
at 53–56; PA Guide
, at 103–09, 137.
Stafford Act § 403(a); 44 C.F.R. § 206.225.
Stafford Act § 403(a)(3).
 See id.
at 73 (explaining that the “applicant’s pre-disaster pay policies related to overtime, compensatory time, and Fair Labor Standards Act designations are integral to eligibility determinations regarding costs”).
Recovery Policy RP9525.7, Labor Costs – Emergency Work
, at 1–2 (Nov. 16, 2006); PA Guide
, at 42.
Examples of the job titles provided include: “CIVIL ENGR 2,” “KEYBOARD SPEC 1,” “CLERK 1,” etc.
The additional documentation submitted on second appeal consisted of the STICC’s Incident Command Procedures for the following positions: Information Officer, Finance and Administration Section Chief, and Liaison Officer.
Project Worksheet 2595, New York State Department of Transportation, Version 0 (Oct. 25, 2012).
 PA Applicant Handbook
, at 32–34; PA Guide
, at 103–09.
FEMA Second Appeal Analysis, Chambers County
, FEMA-1791-DR-TX (May 25, 2017), at 8 (finding that the Applicant’s support documentation contained omissions, inconsistencies, and patterns of deviation that have not been explained to justify eligibility).
 Applicant’s RFI Response,
at Attachment. Overtime hours were claimed for 203 of the 317 timesheets entered into the labor expense report. Of the 203 timesheets with claimed overtime, 155 of those timesheets logged less than 40 regular work hours for the entire two-week pay period. Only four of the 203 timesheets logged the requisite 80 regular work hours to qualify for overtime in both workweeks of the pay period.