FMAG – Mutual Aid Agreements

Appeal Brief

Appeal Letter

Appeal Analysis

Background

From July 19 to 22, 2014, firefighters battled the Watermelon Hill Fire in Washington State.  The fire burned approximately 11,416 acres, threatening businesses, utilities, and cultural resources.  As a result, the Washington State Patrol (Applicant) activated the Washington State Fire Services Resource Mobilization Plan (Mobe Plan) to provide statewide mutual aid resources to address 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.

In addition to activating the Mobe Plan, the Applicant requested assistance from FEMA.  The Region X Regional Administrator (RA) approved a Fire Management Assistance Grant (FMAG), establishing an incident period beginning at 1447 PDT on July 19, 2014, to 2359 PDT on July 22, 2014.  FEMA determined that the Mobe Plan was a mutual aid agreement and awarded Project Worksheet (PW) 6 to reimburse labor costs associated with fire mitigation, management, and control costs during the designated incident period.  The Applicant submitted time reports,[1] which were filled out in the field, as well as time records,[2] which were completed after the fact, to document the hours each firefighter worked.  In a Determination Memorandum dated October 18, 2016, FEMA identified ineligible labor costs totaling $17,163.94, finding that $1,024.34 in costs were ineligible because the claimed hours included time not spent performing emergency work, and that $16,139.60 in costs were ineligible because the emergency work occurred outside the incident period.[3]  After the reduction, the total amount that FEMA awarded the Applicant for eligible costs was $231,470.36.  

First Appeal

The Applicant appealed the determination via a letter dated December 19, 2016, 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.[4]  In addition, the Applicant disagreed that some of the hours were completed outside the incident period.[5]  The State of Washington Military Department Emergency Management Division (Grantee) forwarded the Applicant’s appeal by a letter dated February 17, 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.”[6]  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.[7]  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.[8]  Lastly, the Grantee argued that FEMA miscalculated the hours for a firefighter and inaccurately calculated the rate of pay for another one.[9]

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 and showing that all claimed hours occurred during the declared incident period.[10]  The Grantee responded to the Final RFI in a memorandum dated June 30, 2017, reiterating the argument that the Mobe Plan was a contractual agreement and that FEMA needed to reimburse any agreed-upon hours under that agreement.[11]  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 14 hours long, the hours regularly extended past that due to travel, briefings, and for time required to make transitions between teams.[12]  Moreover, the Grantee maintained that Title 5 Code of Federal Regulations (C.F.R.) § 551.432 provided for paying firefighters for time spent not actively fighting fires because the shifts and nature of the work did not provide for an uninterrupted period of sleep.[13] 

FEMA Region X denied the appeal on March 12, 2018.  The Regional Administrator (RA) determined that the remaining requested hours were not eligible because the hours were not spent conducting emergency work, finding that the hours included time standing by or preparing to deploy.[14]  In addition, the RA noted that FEMA policy only allows reimbursement for the performance of emergency work, even if an applicant’s contract requires reimbursement of 24-hour shifts.[15]  The RA also stated that 5 C.F.R. applied only to federal agencies, not state and local entities, and did not apply to the FMAG program.[16]  Moreover, the RA found that the Mobe Plan was not a procurement contract per FEMA’s grant regulations.  However, the RA found that FEMA had miscalculated the hours worked for one of the firefighters, and consequently awarded an additional $272.34.[17]  Finally, the RA asserted that it had correctly determined that $16,139.60 in costs were ineligible because work was performed outside the incident period.[18]

Second Appeal

The Applicant submitted its second appeal via a letter dated May 18, 2018.  The Applicant withdraws its argument that all claimed hours occurred within the declared incident period, and requests $782.00 in reimbursement for what it claims are eligible labor costs.[19]  The Applicant argues 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 acknowledges that the base camp cycle was 24 hours of fire suppression activities, but maintains that the time extended regularly to ensure smooth transitions, attend meetings, and travel back to base camp.[20] 

Via a letter dated July 10, 2018, the Grantee transmitted the Applicant’s appeal and also attached a memorandum outlining the Grantee’s arguments.  Like the Applicant, the Grantee no longer argues that all claimed hours occurred within the incident period, and instead requests the remaining $782.00 in labor costs.  The Grantee maintains that the claimed costs were eligible as part of lost-pay stipend, which ensures that firefighters in other districts do not lose pay when they respond under the Mobe Plan and miss regularly assigned shift hours in their home districts.[21]  The Grantee also points to RP 9525.7 – Labor Costs – Emergency Work, highlighting that the policy provides that straight time and overtime are determined according to an applicant’s predisaster policies, and also states that costs for contract labor, mutual aid in accordance with an existing agreement, or temporary hires are eligible for reimbursement.[22]  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 the lost-pay stipend, FEMA policy provides that the costs are eligible.[23] 

Discussion

FMAG - Eligible Labor Costs

Section 420 of the Robert T. Stafford Disaster Relief and Emergency Assistance Act and its implementing regulations vest FEMA with the authority to offer fire management assistance to state and local governments.[24]  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.[25]  Costs for contract, labor, mutual aid in accordance with an existing agreement, or temporary hires needed to accomplish emergency work are eligible for reimbursement.[26]  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, overtime, and benefits eligible for reimbursement.[27]  FEMA will determine eligible straight time and overtime in accordance with an applicant’s predisaster policies, and all costs must be reasonable and equitable.[28]  Importantly, reimbursement of labor costs for employees performing emergency work is limited to actual time worked.[29]  Costs for firefighting employees preparing to deploy or standing-by are not eligible for reimbursement, except for certain pre-positioning costs.[30]  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.[31]  In addition, an applicant has the burden of substantiating its arguments and must explain how documentation supports its appeal.[32] 

On second appeal, both the Applicant and the Grantee argue that 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 district.  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 here how the hours were eligible, other than by arguing the hours were part of the firefighters’ regular shift hours required under the Mobe Plan.  Thus, the claimed 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.[33]  FEMA reimburses costs for eligible emergency work under mutual aid agreements in accord with FEMA policy.[34]  FEMA’s grant regulations define “contract” as “a procurement contract under a grant or subgrant [and also a] procurement subcontract under a contract.”[35]  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.”[36] 

In awarding PW 6, FEMA determined that the Mobe Plan is a mutual aid agreement, and consequently reimbursed the Applicant $231,70.36 for costs associated with eligible mutual aid emergency work.  One 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 working.  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 regulations because it is a not a procurement contract under a grant or subgrant,[37] 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 working 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. 

Conclusion

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.