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Second Appeal Analysis
PA ID# 000-UW9XH-00; Washington State Patrol
PW ID# (PW) 3 ; FMAG – Mutual Aid Agreements
The Snag Canyon Fire burned 12,667 acres in Kittitas County, Washington in August 2014. On August 3, 2014, FEMA approved a request for a Fire Management Assistance Grant (FMAG) declaration, and on August 5, 2014, the Washington State Patrol (Applicant) activated its Washington State Fire Services Resource Mobilization Plan (Mobe Plan) for statewide mutual aid assistance to combat the fire. The Mobe Plan is an agreement between the Applicant and local fire protection districts, and allows for other local fire districts to assist the applicant once all local mutual aid resources are exhausted. FEMA determined that the Mobe Plan was a mutual aid agreement and awarded Project Worksheet (PW) 3 for reimbursement of fire suppression and force account labor costs, as well as contract costs for career fire service labor and equipment, that were incurred as mutual aid under the Mobe Plan. The Applicant submitted time reports, which were filled out in the field, and time records, which were filled out after the fact, to document the hours each firefighter worked. In a Determination Memorandum dated November 11, 2016, FEMA identified $14,640.59 in ineligible labor costs and reduced the award accordingly, resulting in $413,022.41 being awarded to the Applicant. FEMA found that the costs were ineligible because the claimed labor hours included time spent not performing emergency work, including stand-by time and time preparing to deploy.
The Applicant appealed the determination via a letter dated January 9, 2017, arguing that the Mobe Plan was a contractual agreement that required reimbursement of the regular shift hours of career fire personnel, and that FEMA needed to honor that agreement. The State of Washington Military Department Emergency Management Division of Emergency Management (Grantee) transferred the Applicant’s appeal by a letter dated March 10, 2017, supporting the Applicant’s arguments. In an attached memorandum, the Grantee argued that the Mobe Plan was a binding contract that required reimbursement of a “lost-pay stipend.” According to the Grantee, this lost-pay stipend was established under the contract so that responding firefighters would not incur a loss in pay if they missed regular shift hours in their home districts. Specifically, the Grantee argued that because the contract authorized payment of the lost-pay stipend and the contract was in effect at the time of the disaster, the costs were eligible under FEMA Recovery Policy 9525.7 - Labor Costs – Emergency Work. Lastly, the Grantee argued that FEMA miscalculated the hours spent performing emergency work for some firefighters and inaccurately calculated the adjustment in pay for other firefighters, totaling $2,589,71.
FEMA Region X issued a Final Request for Information (RFI) dated June 1, 2017, requesting information showing that all labor costs were eligible following activation of the Mobe Plan. The Grantee responded to the Final RFI in a memorandum dated June 30, 2017, arguing that the Mobe Plan was a contractual agreement and that FEMA needed to reimburse any agreed-upon hours under that agreement. The Grantee also argued that FEMA’s regulations pertained to a 40-hour work week, whereas firefighters’ regular shift hours occurred in a 24-hour cycle, and that while regularly scheduled shifts at the base camp were 24 hours long, the hours regularly extended past that due to travel, briefings, and transitions amongst teams. Moreover, the Grantee maintained that Title 5 Code of Federal Regulations (C.F.R.) § 551.432 allowed paying firefighters for time spent not actively fighting fires because their shifts and nature of the work did not provide for an uninterrupted period of sleep, or for regularly scheduled meals.
FEMA denied the appeal on March 12, 2018, finding that the ineligible hours were not spent performing emergency work. The Regional Administrator (RA) stated that FEMA did not dispute that the Mobe Plan constituted a legal agreement between the Applicant and local fire entities, but that the Mobe Plan did not impose any legal obligations on FEMA. Moreover, even if the Mobe Plan contractually required the Applicant to reimburse 24-hour shifts, the RA stated that FEMA policy did not allow funding labor costs that were not spent performing emergency work. Lastly, the RA found that due to errors in calculating the labor costs, FEMA would award an additional $2,801.37. The remaining $11,839.22 in labor costs, however, remained ineligible because the time was not spent on performing emergency work.
The Applicant submitted its second appeal via a letter dated May 18, 2018 arguing again that the Mobe Plan is a contract that includes an agreement to pay career fire service personnel for their regular shifts, which are 24 hours long. Moreover, the Applicant contends that the base camp cycle was 24 hours of fire suppression activities, but that time extended regularly to ensure smooth transitions, attend meetings, and travel back to base camp. The Grantee transmitted the Applicant’s second appeal in a letter dated July 10, 2018, and attached a memorandum outlining the Grantee’s arguments on second appeal. In the memorandum, the Grantee maintains that FEMA incorrectly determined that the claimed costs were for time spent not working, and that the decision not to reimburse the costs violates 2 C.F.R. part 200 and Recovery Policy 9525.7 – Labor Costs – Emergency Work. The Grantee argues the costs claimed were for the lost-pay stipend, which ensures that firefighters in other districts do not lose pay when they respond under the Mobe Plan. The Grantee notes that Recovery Policy 9525.7 – Labor Costs – Emergency Work provides that straight time and overtime are determined according to an applicant’s predisaster policies, and that costs for contract labor, mutual aid in accordance with an existing agreement, or temporary hires are eligible for reimbursement. Thus, the Grantee argues that because the Mobe Plan is a contractual agreement that was in effect prior to the disaster and is also codified under the Revised Code of Washington, and requires reimbursement for all claimed costs, Recovery Policy 9525.7 applies and FEMA must reimburse the Applicant accordingly.
FMAG - Eligible Labor Costs
Section 420 of The Robert T. Stafford Disaster Relief and Emergency Assistance Act of 1988 and its implementing regulations vest FEMA with the authority to offer fire management assistance to state and local governments. In addition, emergency work performed under a mutual aid agreement is eligible if it is necessary to meet immediate threats to life, public safety, and improved property, including firefighting activities. “The costs for contract, labor, mutual aid in accordance with an existing agreement, or temporary hires needed to accomplish emergency work are eligible for reimbursement.” Under FEMA Recovery Policy (RP) 9523.6 – Mutual Aid Agreements for Public Assistance and Fire Management, a providing entity’s force account labor will be considered contract labor, with regular time and overtime and benefits eligible for reimbursement. FEMA will determine eligible straight time and overtime in accordance with an applicant’s predisaster policies, and all costs must be reasonable and equitable. Importantly, reimbursement of labor costs for employees performing emergency work is limited to actual time worked. Costs for fire employees preparing to deploy or standing-by are not eligible for reimbursement, except for certain pre-positioning costs. For pre-positioning costs to be eligible, the grantee must immediately notify the RA of the intent to claim them, and must provide a detailed explanation of the need for the prepositioning costs, including locations, hours, and estimated costs of the efforts, based on various scientific factors. In addition, an applicant has the burden of substantiating its arguments and must explain how documentation supports its appeal.
On second appeal, both the Applicant and the Grantee argue that all of the claimed hours included the firefighters’ regular shifts, thus making all of the hours eligible for reimbursement by FEMA. Moreover, the Grantee argues that the hours equate to a “lost-pay stipend,” a necessary form of reimbursement for firefighters who respond under the Mobe Plan but are not compensated by their home districts. However, neither the Grantee nor the Applicant demonstrate, either through documentation or argument, how the hours were spent conducting emergency firefighting activities. Although the Applicant claimed that some of the hours were eligible as time spent traveling to the fire and attending briefings, the Applicant did not specify which hours for which employee were dedicated to these tasks. Neither did the Grantee provide evidence that it had submitted notice to the RA of its intent to seek pre-positioning costs as required under 44 C.F.R. § 204.42(e). The Applicant bears the burden of substantiating its claims on appeal, and did not explain how the hours were eligible, other than by arguing they were part of the firefighters’ regular shift hours required under the Mobe Plan. Thus, the labor costs remain ineligible for reimbursement.
Mutual Aid Agreements
Mutual aid agreements are agreements between jurisdictions or agencies to provide services across boundaries during an emergency or disaster. FEMA reimburses costs for eligible emergency work under mutual aid agreements, but only in accord with FEMA policy. Federal regulation defines “contract” as “a procurement contract under a grant or subgrant [and also a] procurement subcontract under a contract.” Moreover, “[r]eimbursement of labor costs for employees performing emergency work is limited to actual time worked, even when [an] applicant is contractually obligated to pay for 24 hour shifts.”
In awarding PW 3, FEMA determined that the Mobe Plan is a mutual aid agreement, and consequently reimbursed the Applicant $413,022.41 for costs associated with eligible mutual aid emergency work. On second appeal, the Applicant and Grantee argue that the Mobe Plan functions as a binding contract between the requesting and responding fire districts, and that under the Mobe Plan, all regular shift hours for the firefighters are eligible for reimbursement, even if time is spent not conducting emergency work. In addition, the Grantee argues that the Mobe Plan mandates that firefighters must be reimbursed with a lost-pay stipend for any shift hours they would have missed with their home jurisdiction, in addition to payment for their regular shift hours during the fire incident period. Although both the Applicant and Grantee maintain that the Mobe Plan is a contract that requires FEMA to reimburse all of the claimed hours, that is not the case. The Mobe Plan does not meet the definition of a contract under FEMA’s grant regulations because it is a not a procurement contract under a grant or subgrant, nor did the Applicant procure the services of the responding districts. Furthermore, whether or not the Mobe Plan is considered a procurement contract or a mutual aid agreement, FEMA policy provides that only actual time spent conducting emergency work is eligible. This is the case even if a contract, or mutual aid agreement, requires payment for 24-hour shifts Moreover, the Mobe Plan does not include language referencing a “lost-pay stipend” and FEMA does not reimburse costs for standing-by or preparing to deploy, even if the Mobe Plan requires it. Thus, the firefighters’ regular shift hours, including stand-by time and lost-pay stipends, are not eligible for reimbursement.
The Applicant has not demonstrated that the claimed labor costs were for time spent conducting emergency work. In addition, while the Mobe Plan qualifies as a mutual aid agreement under FEMA policy, the Mobe Plan is not a contract procured under a subgrant. Whether or not the Mobe Plan is considered a procurement contract or mutual aid agreement, FEMA policy does not allow for reimbursement for time not spent performing emergency work, even if the Mobe Plan requires reimbursement of 24-hour shifts. Therefore, the second appeal is denied.
 The Emergency Firefighter Time Reports are known as “OF-288” reports. Emergency firefighters fill out these reports in the field to document the hours of emergency work they perform.
 Firefighters fill out the time records after the fire. In these records, firefighters record the hours that the Mobe Plan authorizes, in addition to those hours worked in the field; for example, a 24-hour shift.
 Letter from Applicant Agent, Wa. State Patrol, to Reg’l Adm’r, FEMA Region X, at 2 (Jan. 9, 2017).
 Staff Analysis Memorandum from State of Wa. Military Dep’t, Emergency Mgmt. Div., at 3-4 (Mar. 10, 2017) [hereinafter Staff Analysis Memorandum].
 Staff Analysis Memorandum, at 4-5.
 The copy of the Final RFI contained in the administrative record is undated, but the Regional Administrator (RA) states that the Final RFI was dated June 1, 2017, in the RA’s first appeal determination.
 Staff Analysis Memorandum from State of Washington Military Dep’t, Emergency Mgmt. Div., at 1 (June 30, 2017).
 First Appeal Analysis, Washington State Patrol, FEMA-5071-FM-WA, at 3-4 (Mar. 12, 2018).
 Letter from Applicant Agent, Washington State Patrol, to Reg’l Adm’r, FEMA Region X, at 1 (May 18, 2018).
 Staff Analysis Memorandum from State of Washington Military Dep’t, Emergency Mgmt. Div., at 3-4 (July 10, 2018).
 FEMA Second Appeal Analysis, Washington State Patrol, FEMA-5059-FM-WA, at 3 (May 14, 2018) (citing Robert T. Stafford Disaster Relief and Emergency Assistance Act of 1988 § 420, 42 U.S.C. § 5187 (2013); Title 44 Code of Federal Regulations (C.F.R.) §§ 204.1-204.64 (2013)).
 FEMA Recovery Policy (RP) 9523.6, Mutual Aid Agreements for Public Assistance and Fire Management, at 5 (Nov. 10, 2012).
 FEMA Recovery Policy 9525.7, Labor Costs – Emergency Work (Nov. 16, 2006).
 44 C.F.R. § 204.42(e); RP 9523.6, at 5; RP 9525.7, at 3.
 44 C.F.R. § 204.42(e).
 FEMA Second Appeal Analysis, Town of Nichols, FEMA-4031-DR-NY, at 5 (May 10, 2018) (citing FEMA Second Appeal Analysis, Village of Waterford, FEMA-4020-DR-NY, at 4 (Sept. 4, 2014) (an “[a]pplicant has the burden of substantiating its claims . . .”)).
 FEMA Fire Management Assistance Grant Program Guide, FEMA P-954, at 23 (Feb. 2014) (referencing RP 9523.6).
 Contracts procured under a grant or subgrant must comply with the requirements detailed at 44 C.F.R. § 13.36, such as providing full and open competition, securing bonding, and including certain contract provisions.