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Overtime Labor & Travel Costs for Mutual Aid Personnel

Appeal Brief Appeal Letter

Appeal Brief

DesastreFEMA-1134-DR
ApplicantNorth Carolina Dept. of Crime Control & Public Safety
Appeal TypeSecond
PA ID#000-92130
PW ID#36860,60079
Date Signed1999-08-17T04:00:00

Citation: FEMA-1134-DR-NC, P.A. 000-92130, North Carolina Department of Crime Control and Public Safety, Division of Emergency Management, DSRs 36860 and 60079

Cross-reference: Mutual Aid, Overtime Pay, Travel Expenses, Administrative Allowance

Summary: On October 5, 1996, Damage Survey Report (DSR) 60079 obligated $78,539 to cover the regular time, overtime, benefits and travel expenses of Florida mutual aid personnel who assisted the State of North Carolina in response to Hurricane Fran. These personnel provided technical assistance and completed tasks normally performed by State employees, including writing DSRs and conducting site inspections. On
November 13, 1997, DSR 36860 deobligated $45,963 in funds associated with overtime and travel expenses for these personnel. FEMA determined that because Florida mutual aid personnel performed work on behalf of the grantee, the overtime and travel costs are covered under the administrative allowance, pursuant to 44 CFR 206.228(2)(i). The State first appealed on
March 13, 1998, claiming that Florida mutual aid personnel are not State employees as defined by the Stafford Act and applicable regulations; therefore, the overtime and travel costs are eligible, according to 44 CFR 13.22(b). The appeal was denied based on FEMA's consistent interpretation that all State resources and contractors used to perform the specific duties listed in 44 CFR 206.228(2)(i) fall under the grantee's administrative allowance. The State submitted its second appeal on December 3, 1998.

Issues: 1) Should overtime and travel costs of mutual aid personnel performing duties normally assigned to State personnel covered by the State's administrative allowance?

Findings: 1) Yes. However, in this case the State of North Carolina asked FEMA whether the costs associated with using mutual aid personnel from the State of Florida would be eligible. FEMA's response did not distinguish between emergency work and grants administration work. Therefore, in this case only, FEMA will reimburse these costs.

Rationale: 44 CFR 206.228(2)(i)

Appeal Letter

August 17, 1999

Steven N. Glenn
Deputy Chief of Operations
North Carolina Department of Crime Control and Public Safety
Division of Emergency Management
205 W. Cabarrus Street
Raleigh, North Carolina 27601

RE: Second Appeal - North Carolina Division of Emergency Management, Mutual Aid Personnel, FEMA-1134-DR-NC, DSRs 36860 and 60079

Dear Mr. Glenn:

This is in response to the referenced second appeal that you forwarded to FEMA on
December 3, 1998. Damage Survey Report (DSR) 60079 was prepared and approved for $78,539 to cover regular and overtime labor, benefits, and travel costs of mutual aid personnel from Florida. These personnel provided technical assistance to the North Carolina Division of Emergency Management in the aftermath of Hurricane Fran. DSR 36860 subsequently deobligated $45,963 in overtime wages and travel costs because these costs are considered to be included in the grant management allowance, pursuant to 44 CFR 206.228(2)(i).

The State submitted its first appeal on March 13, 1998. Its appeal was based on three claims. First, FEMA's decision is contrary to U.S. Supreme Court Decisions and presumes congressional intent. Second, the proper regulation to use to determine eligibility is 44 CFR 13.22. Finally, the State claimed that FEMA's position is illogical as it defines mutual aid personnel as State employees in reference to overtime and travel, but non-State employees in terms of regular time. The first appeal was denied on March 31, 1998.

Again, the basis for the denial was FEMA's interpretation of 44 CFR 206.228(2)(i). Specifically, this regulation provides an administrative allowance for "extraordinary costs incurred by the State for preparation of damage survey reports, final inspection reports, project applications, final audits and related field inspections by State employees, including overtime pay and per diem and travel expenses, but not including regular time for such employees." The Florida mutual aid personnel performed tasks usually completed by State personnel. FEMA determined that the mutual aid personnel were functioning as a State resource, thereby covered by the administrative allowance.

The State submitted its second appeal on December 3, 1998. In considering the second appeal, the circumstances involved in this particular disaster were taken into account. During Hurricane Fran, the State of North Carolina asked FEMA if the costs associated with using mutual aid personnel from Florida would be eligible. FEMA's answer was yes. However, FEMA provided insufficient clarification in its response as no distinction was made between those personnel involved in emergency work and those performing grants administration activities, such as preparing damage survey reports. According to 44 CFR 206.228(2)(i), the overtime, travel and per diem costs associated with grants administration are covered by the State's administrative allowance, which is provided for extraordinary costs incurred performing these functions. This distinction was not made clear when FEMA responded to the State's initial inquiry.

FEMA supports State-to-State cooperation during disasters. FEMA also recognizes that our guidance in this case was unclear. Therefore, this appeal is granted. This determination applies to this case only and should not be interpreted as a precedent-setting decision. By copy of this letter I am asking the Regional Director to prepare a DSR for $45,963.

Please inform the applicant of my determination. In accordance with the procedure governing appeal decisions made on or after May 8, 1998, my determination constitutes the final decision on this matter. The current appeal procedure was published as a final rule in the Federal Register on April 8, 1998. It amends 44 CFR 206.206.

Sincerely,

/S/

Lacy E. Suiter
Executive Associate Director
Response and Recovery Directorate

cc: John B. Copenhaver
Regional Director
FEMA Region IV