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Second Appeal Brief
PA ID# 000-UW9XH-00; Washington State Patrol
PW ID# PW 4; FMAG – Mutual Aid Agreements – Procurement
Conclusion: Washington State Patrol (Applicant) has not demonstrated that the labor hours claimed are eligible for reimbursement.
During an incident period from July 10, 2014 to July 22, 2014, the Mills Canyon burned 22,000 acres of private and public owned lands, threatening various infrastructure. The fire was beyond the capability of the local fire jurisdiction to respond so the Washington State Fire Services Resource Mobilization Plan was activated. FEMA prepared a Fire Management Assistance Grant FMAG Project Worksheet 4 to document eligible costs incurred during the execution of the Mobilization Plan. FEMA subsequently determined that PW 4 included ineligible non-emergency labor costs, and reduced funding accordingly. The Applicant filed a first appeal on January 19, 2017, arguing that: (1) the Mobilization Plan supplemented the use of a contract, therefore the labor costs for time spent not actively engaged in emergency operations are eligible; (2) the labor costs reduced by FEMA should be considered as a “lost pay” stipend; and, (3) FEMA made a mistake when reducing the labor costs, which resulted in an over-reduction of $421.35. The FEMA Region X Regional Administrator denied the appeal August 11, 2017, finding that labor costs for work unrelated to eligible fire suppression or emergency response, are not eligible for FMAG funding and that there had been no miscalculation of eligible labor cost in the amount of $421.35. On October 17, 2017, the Applicant filed a second appeal arguing that the payment of on-duty labor costs included in the regular shift hours of the Career Fire Personnel is a contract cost and allowed under the Mobilization Plan’s contractual agreement.
Authorities and Second Appeals
Stafford Act § 420.
44 CFR §§ 13.3, 13.36, 204.42(c), 204.43(c).
2 C.F.R. § 225 App. A.B.8.
FEMA P-954, at 23.
RP 9523.6, at 3.
RP 9525.7 at 3.
As outlined in 44 C.F.R. § 204.42(c), eligible costs include: overtime for permanent or reassigned state and local employees; regular time and overtime for temporary and contract employees hired to perform fire-related activities.
FEMA will reimburse mutual aid costs for eligible emergency work, in accordance with FEMA Recovery Policy 9523.6, Mutual Aid Agreements for Public Assistance and Fire Management. RP 9523.6 provides examples of mutual aid work that are not eligible, including costs for preparing to deploy or standing-by.
FEMA defines contract as meaning a procurement contract under a grant or subgrant pursuant to 44 C.F.R. § 13.3 and OMB Circular A-87
FEMA Recovery RP9525. 7, Labor Costs – Emergency Work, also states that all requested hours must be for actual time worked. Standby time is not eligible under the FMAG Program
The Applicant’s Mobilization Plan was a mutual aid agreement and thus is subject to RP9523.6. While this mutual aid agreement was a contract between the Applicant and local jurisdictions, it was not a procurement contract under federal regulations, nor is it exempted from FEMA’s requirements for mutual aid agreements and labor costs.
Moreover, the Applicant has submitted timesheets to show that the Career Fire Personnel were working regular hours, rather than overtime.
In addition, the Applicant has not demonstrated that the employees were engaged in fire-related activities.