Immediate Threat

Appeal Brief

Summary Paragraph

Hurricane Laura caused flooding and high winds with an incident period from August 23- 27, 2020. The City of Port Neches (Applicant) requested FEMA Public Assistance (PA) for costs associated with claimed emergency protective measures including: (1) force account labor (FAL), force account equipment (FAE), and materials related to operating the Applicant’s Emergency Operations Center (EOC), evacuations, and staging and planning efforts; (2) FAL overtime (OT) for police and fire responders and FAE related to the Applicant’s use of police cars; (3) meals for public works employees; and (4) repairs to a boat ramp and purchasing sewer plant generator batteries.  FEMA issued a Determination Memorandum, partially granting $56,903.00 in eligible FAL, FAE, materials for staffing the EOC, evacuations, and staging/planning. FEMA denied the remaining $82,088.25, in FAL OT, FAE, materials, and employee meals, finding that the work and costs were ineligible emergency protective measures and were an increased operating cost and the repairs were permanent work rather than emergency protective measures. The Applicant appealed. FEMA denied the appeal, finding that the FAL, FAE, and materials were not used for eligible emergency protective measures. FEMA also denied costs for meals not tied to eligible work and costs for the repairs. The Applicant submitted a second appeal, requesting previously denied costs.

Authorities and Second Appeals

• Stafford Act § 403(a).
• 44 C.F.R. §§ 206.223(a)(1), 206.225(a)(3)(i). 
• PAPPG, at 51, 65, 110, and 117.
• Fort Myers Beach Fire Control District, FEMA-4486-DR-FL, at 2 (May 15, 2023).
• City of Deer Park, FEMA-4586-DR-TX, at 3 (July 21, 2023).

Headnotes

• Increased costs of operating a facility or providing a service are generally ineligible, even when directly related to the incident. To be eligible, costs must be directly tied to the performance of eligible work. 
  • The Applicant’s documentation, including police and fire department call logs and summaries, does not demonstrate that the FAL OT or FAE are associated with eligible emergency work outside of the employees’ normal routine work activities. 
• Meals are ineligible when employees are not engaged in eligible emergency work. 
  • The meal costs are ineligible because the Applicant has not demonstrated the employees were not engaged in eligible work.
• It is the Applicant's responsibility to provide documentation to support its claim as eligible, and to clearly explain how the documentation supports its appeal.
  • The Applicant has not provided clarifying information or documentation that demonstrates either the boat ramp repairs, or two sewer plant generator batteries, are eligible emergency protective measures.

Conclusion

The Applicant did not demonstrate that its claimed FAL, FAE, and meals are directly tied to the performance of eligible emergency protective measures.

Appeal Letter

Appeal Analysis

Background

Hurricane Laura caused heavy rain, flooding and high winds that resulted in a major disaster declaration for the State of Texas on December 9, 2020, with an incident period from August 23-27, 2020. The City of Port Neches (Applicant) requested FEMA Public Assistance (PA) for costs associated with claimed emergency protective measures including: (1) force account labor (FAL), force account equipment (FAE), and supplies related to operating the Applicant’s Emergency Operations Center (EOC), evacuations, and staging and planning efforts; (2) FAL overtime (OT) for police and fire responders and FAE related to the Applicant’s use of police cars; (3) meals for public works employees provided through September 6, 2020; and (4) repairs to a boat ramp and the purchase of two sewer plant generator batteries. FEMA prepared Grants Manager Project 18360/Project Worksheet 17 for $138,991.25, to document the claimed work completed from August 23, 2020, through September 6, 2020. FEMA issued a Determination Memorandum (DM) on August 3, 2022, partially granting the costs. FEMA approved $56,903.00 for FAL, FAE, and materials related to staffing the EOC, evacuations, and staging and planning efforts. It also approved meals for public works employees provided during the incident period. However, FEMA denied $82,088.25, for the FAL OT related to police and fire responders, FAE for the police cars, meals for public works employees purchased after the incident period, and boat ramp repairs.[1] First, FEMA found that the Applicant had not demonstrated the first responder costs related to eligible emergency protective measures and were instead, increased operating costs. Second, FEMA found that the meals did not meet the requirements for PA reimbursement. Lastly, FEMA found that because the boat ramp repairs were permanent work, they were ineligible as emergency protective measures. 

First Appeal 

The Applicant filed a first appeal on October 5, 2022, stating that the work was associated with eligible emergency response efforts related to the disaster.[2] The Texas Division of Emergency Management (Recipient) forwarded the appeal with its support on October 10, 2022. In a Request for Information (RFI) dated February 21, 2023, FEMA requested documentation demonstrating how the denied costs were eligible emergency protective measures. The Applicant responded to FEMA’s RFI in a letter dated March 20, 2023, reiterating its position from the first appeal. The Applicant provided five attachments:[3] a FAL summary, the Applicant’s Essential Services Policy, the Applicant’s Employee Policy Handbook, Fire Department call logs and Police Department call logs. The Applicant also withdrew its claim for the boat ramp repair costs.

The FEMA Region 6 Regional Administrator denied the first appeal on June 5, 2023. FEMA conducted a review of the daily logs and payroll records and found that the Applicant did not demonstrate the FAL OT and FAE were used to perform eligible emergency protective measures. FEMA noted that additional staffing for first responders, while prudent, did not meet criteria for eligible emergency protective measures. FEMA found the increased call volume constituted an increased operating cost. Next, FEMA found that meals purchased outside of the incident period were ineligible because the Applicant did not document that the conditions at the time of the meal purchases made meals not readily available.[4]

Second Appeal

In a letter dated July 31, 2023, the Applicant submitted a second appeal requesting$82,088.25, and reiterating previously raised arguments.[5] The Recipient forwarded the appeal, with its support of the Applicant’s position in a letter dated August 11, 2023.

Discussion

FEMA is authorized to provide PA for emergency protective measures necessary to save lives, and protect public health and safety.^[6] For emergency protective measures to be eligible, the applicant is responsible for showing the work is required due to an immediate threat resulting from the declared incident.^[7]  Increased costs of operating a facility or providing a service are generally ineligible, even when directly related to the incident.[8] The exception, is that short-term increased costs that are directly related to accomplishing specific emergency health and safety tasks as part of emergency protective measures may be eligible, provided all requirements outlined in FEMA policy are met.[9] Increased operating costs related to staff that were retained to work additional hours, but did not perform eligible emergency work, are ineligible.[10] The provision of meals may be eligible for employees engaged in eligible emergency work.[11]Not all costs incurred as a result of the disaster are eligible.[12] To be eligible, costs must be directly tied to the performance of eligible work.^[13] It is the Applicant’s responsibility to provide documentation to support its claim as eligible, and to clearly explain how the documentation supports its appeal.[14]

First, the Applicant is requesting funding for FAL OT performed by fire and police department staff and FAE for the use of the Applicant’s police cars. However, the provided documentation, including police and fire department call logs and summary spreadsheets, does not demonstrate that the claimed costs are associated with eligible emergency work. Rather, the records generally describe routine work activities. For example, the Applicant claimed eighteen hours of FAL OT for a police sergeant on August 27, 2020.[15] On this day, the call log for the employee includes calls in response to burglar alarms, a traffic stop, and miscellaneous work, none of which were listed as related to the disaster.[16] The Applicant also claimed 24 hours of FAL OT for a firefighter on August 28, 2020, yet the call logs for that day include four calls for smoke removal, a hazardous condition, and a vehicle fire, which were not listed as related to the declared incident.[17] The documentation lists the types of activities that are performed in the course of the employees’ normal job functions, regardless of a declared disaster, and were not documented to a degree to allow FEMA to verify they are eligible emergency protective measures to address an immediate threat resulting from the declared disaster. Because the documentation provided by the Applicant does not directly tie costs to the performance of eligible work, the Applicant has not demonstrated that work associated with the claimed FAL OT constitutes eligible emergency protective measures. 

Second, the Applicant requests funding for meals purchased after the period for which the Applicant-claimed FAL ended. The claimed meal costs extend through September 6, 2020, but the claimed FAL costs end on August 31, 2020. Further, the Applicant has not shown that the meal costs relate to any other eligible work funded for this disaster. As the Applicant has not demonstrated the employees were engaged in eligible emergency work at the time the meals were purchased, the costs for meals are ineligible.[18]

Conclusion

The Applicant did not demonstrate that its claimed costs are directly tied to the performance of eligible emergency protective measures. Therefore, this appeal is denied.