Rocky Top Sports World (Applicant) seeks reimbursement for costs associated with sheltering displaced survivors of a November 2016 wildfire. On July 11, 2017, FEMA denied all funding in Project Worksheet (PW) 24, finding that only overtime labor was reimbursable, the Applicant did not incur or allow for overtime pay, and the American Red Cross (ARC) had contracted to reimburse all other expenses. On first appeal, the Applicant requested reimbursement of $32,858.01 for straight-time and overtime labor, utilities (gas and electricity), communications, and direct administrative costs (DAC), and submitted supporting documentation for: its overtime pay policy; straight-time labor, overtime labor, and utility expenses during the disaster; wages, benefits, and hours for employees; and energy consumption figures for utilities. The Applicant also claimed that any payments provided by the ARC were voluntary and did not cover labor or utility costs. FEMA requested documentation in a Final Request for Information (RFI) pertaining to dates and areas of eligible services and utility usage, duties performed, expense calculations, and payments from the ARC. FEMA did not receive a response. On March 26, 2018, the Regional Administrator denied the appeal, finding that the Applicant’s documentation did not establish: that labor, utility, or communications expenses were reasonable, necessary, and directly related to eligible emergency sheltering activities; that straight time labor or DAC were eligible; and that funding would not duplicate benefits already provided by the ARC. On second appeal, the Applicant requests reimbursement of $14,565.81 for overtime pay, utilities, and DAC, and submits new documentation pertaining to dates of sheltering, emergency duties performed, utility calculations, DAC, and ARC payments. The Applicant also reiterates that it had no contractual agreement with the ARC, although it claims the ARC obtained an unauthorized signature from one of the Applicant’s employees on an ARC Facility Use Agreement.
Authorities and Second Appeals
- Stafford Act, § 403(a).
- 44 C.F.R. §§ 206.206(a), 206.225(a).
- PAPPG, at 21, 37-38, 60, 64-68.
- Public Assistance Program Appeal Procedures, at 14.
- Dep’t of Transp., FEMA-4068-DR-FL, at 5; Cal. Dep’t of Developmental Serv., FEMA-1646-CA, at 4 n.15; N.Y. State Dep’t of Transp., FEMA-4031-DR-NY, at 5-6; City of Atlanta, FEMA-4165-DR-GA, at 6, 9-10.
- The Stafford Act § 403(a), 44 C.F.R. § 206.225(a), and the PAPPG authorize public assistance (PA) for emergency sheltering services and related overtime and utility costs. The PAPPG requires that costs must be directly tied to the performance of the eligible work and adequately documented.
- The PAPPG also authorizes PA for DAC tracked and charged directly to a specific project, including DAC for activities such as reviewing the PW and requesting disbursement of PA funds.
- 44 C.F.R. § 206.206(a) requires documented justification supporting an applicant’s appeal. In second appeal decisions, FEMA has explained that the burden of producing documentation and explaining how it supports the appeal falls exclusively on the applicant, and, per FEMA’s PA Program Appeals Procedures, information submitted for the first time on second appeal will not be considered once the record is closed.
- Here, the Applicant has not demonstrated through supporting documentation that its overtime and utility costs are directly related to eligible work, because it did not provide information before the administrative record closed clarifying dates of eligible work or duties performed, or demonstrating that it incurred additional utility expenses in areas used for sheltering based on the exigency of the circumstances. The Applicant also did not provide any documentation supporting its request for DAC, including administrative activities performed and their connection to an eligible project.
The Applicant has not demonstrated through supporting documentation that its claimed overtime costs, utility costs, and DAC are directly related to eligible work. Therefore, the second appeal is denied.