FEMA finds that the Applicant has not demonstrated that the box truck rental and FAL OT costs are associated with eligible emergency protective measures in response to COVID-19. Appeal Letter SENT VIA EMAIL Rayana Gonzales Deputy Commissioner for Disaster Recovery Programs New York State Division of Homeland Security and Emergency Services 1220 Washington Ave., Bldg. 7A, Floor 4 Albany, New York 12242 Daniel Appler Deputy Director Oneida County Department of Emergency Services 120 Base Road Oriskany, New York 13424 Re: Second Appeal – Oneida County, PA ID: 065-99065-00, FEMA-4480-DR-NY, Grants Manager Project 154610/Project Worksheet 2479, Immediate Threat Dear Rayana Gonzales and Daniel Appler: This is in response to the New York State Division of Homeland Security and Emergency Services’ (Recipient) letter dated September 13, 2024, which transmitted the referenced second appeal on behalf of Oneida County (Applicant). The Applicant is appealing the U.S. Department of Homeland Security’s Federal Emergency Management Agency’s (FEMA) denial of funding in the amount of $30,819.26 for rented equipment and force account labor (FAL) overtime (OT) costs. As explained in the enclosed analysis, I have determined that the Applicant has not demonstrated that the box truck rental and FAL OT costs are directly tied to the performance of eligible emergency protective measures in response to the coronavirus (COVID-19) pandemic. Therefore, this appeal is denied. This determination is the final decision on this matter pursuant to 44 C.F.R. § 206.206, Appeals. Sincerely, /S/ Robert M. Pesapane Director, Public Assistance Enclosure cc: David Warrington Regional Administrator FEMA Region 2 Appeal Analysis Background The coronavirus (COVID-19) pandemic resulted in a major disaster declaration for New York State on March 20, 2020, with an incident period of January 1, 2020, to May 11, 2023. Relevant to this appeal, Oneida County (Applicant) requested Public Assistance (PA) funding for, among other things, a rented box truck, and force account labor (FAL) overtime (OT) costs incurred between March 13, 2020, and September 28, 2020.[1] FEMA created Grants Manager Project 154610 to capture the claimed costs and on June 11, 2021, issued a Request for Information asking the Applicant what work it performed with the rented box truck and FAL. The Applicant replied, explaining that it relocated essential staff to alternate work sites to facilitate social distancing and used the rented box truck and FAL to move office equipment to the alternate sites after one of its trucks broke down. The Applicant stated its FAL also installed directional signs, cleaned and disinfected equipment, and repaired a county-owned driveway for use as a COVID-19 testing site. On April 17, 2023, FEMA issued a Determination Memorandum denying the box truck rental costs ($13,670.69) and FAL OT costs ($24,072.74), explaining that the costs were not tied to the performance of eligible emergency protective measures in response to COVID-19. First Appeal In a letter dated June 9, 2023, the Applicant submitted a first appeal requesting FEMA approve the box truck rental costs and a portion of the denied FAL OT costs ($17,148.57).[2] The Applicant stated that it performed the claimed work during the earliest days of the pandemic based upon COVID-19 related guidance issued by multiple entities.[3] The Applicant noted that the ordinary and necessary work of a county government is to provide a variety of critical and essential services to the public. The Applicant stated its office locations allowed for easy transmission of COVID-19 and could not accommodate social distancing. As such, the Applicant moved essential staff and their office equipment to alternate work sites, limited entry to the county office building, and started a staggered shift schedule so staff could continue to provide essential services while practicing social distancing. The Applicant reiterated the rented box truck was necessary to move office equipment of essential staff to alternate work sites after one of its trucks broke down. In addition, the Applicant asserted its FAL installed a temporary wind barrier outside the county office building’s main entrance to protect people awaiting entry to the building from harsh weather and opened and closed county buildings outside normal hours due to the staggered shift schedule. In a letter dated August 8, 2023, the New York State Homeland Security and Emergency Services (Recipient) transmitted the appeal to FEMA, expressing its support. On May 15, 2024, the FEMA Region 2 Regional Administrator denied $30,819.26 for the Applicant’s claimed costs for the box truck rental and FAL OT. FEMA explained that the box truck rental was not associated with any eligible emergency protective measures included under FEMA Policy 104-21-0003, Coronavirus (COVID-19) Pandemic: Safe Opening and Operation Work Eligible for Public Assistance (Interim), Version 2 (O&O Policy). FEMA added that the Applicant installed the wind barrier to protect people from bad weather, not from COVID-19, and noted that the staff providing building access were performing their normal duties, albeit on a different schedule. As such, FEMA found that the Applicant did not demonstrate that the box truck rental was an eligible emergency protective measure under the O&O Policy or that the work performed by the FAL reduced or eliminated an immediate threat from COVID-19; nor did it demonstrate that the costs were directly tied to the performance of eligible work under the O&O Policy. Second Appeal In a letter dated July 15, 2024, the Applicant submits a second appeal requesting $30,819.26 for box truck rental and FAL OT costs and reiterated its prior arguments. In support of the appeal, the Applicant submits a photograph of the county office building main entrance and cost summaries. The Applicant states it is home to the largest refugee center in New York State and notes that the O&O Policy focuses on “Equitable Pandemic Response and Recovery” to ensure underserved populations receive assistance. The Applicant asserts that denial of the FAL OT costs to install the wind barrier is inconsistent with the O&O Policy, which allows for the installation of temporary barriers, and which enabled FEMA to approve funding for certain material purchases in its initial determination. The Applicant states that social distancing in the county office building’s small elevator lobby forced people to line up outside, under the main entrance canopy, to await entry for appointments. In addition, the Applicant clarifies that due to the reduction in on-site personnel, the employees who opened and closed the buildings were not normally assigned to such work but took on these new unbudgeted duties for the duration of the pandemic resulting in FAL OT costs. On September 13, 2024, the New York State Division of Homeland Security and Emergency Services transmitted the second appeal to FEMA, expressing its support. Discussion FEMA is authorized to provide assistance for emergency protective measures to save lives and protect public health and safety.[4] For emergency protective measures to be eligible, the applicant is responsible for showing that the work is required due to an immediate threat resulting from the declared incident.[5] In response to COVID-19, FEMA may provide assistance to eligible PA applicants for measures implemented to reduce immediate threats to public health and safety, as well as certain specific, limited measures to facilitate the safe opening and operation of eligible facilities, including the acquisition and installation of temporary physical barriers, such as plexiglass barriers and screens/dividers, and signage to support social distancing.[6]To be eligible, costs must be directly tied to the performance of eligible work and adequately documented.[7] Here, the Applicant requests PA funding for rental of a box truck to move the office equipment of essential staff to alternate work sites after one of its box trucks broke down. However, the O&O Policy limits eligible emergency protective measures in response to the pandemic to specific categories, and moving office furniture to facilitate social distancing is not an eligible emergency protective measure under that policy, nor is the work associated with any eligible activity listed in FEMA Fact Sheet: Coronavirus (COVID-19) Pandemic: Eligible Emergency Protective Measures or FEMA Policy 104-009-19, Coronavirus (COVID-19) Pandemic: Work Eligible for Public Assistance (Interim), which were in effect when the Applicant incurred the costs.[8] Consequently, the claimed costs for the truck rental are not directly tied to the performance of eligible work in response to COVID-19. The Applicant is also requesting PA funding for FAL OT costs associated with installing a temporary wind barrier and opening and closing county buildings outside of normal hours due to an implemented staggered shift schedule. The Applicant asserts that FEMA should approve the FAL costs for installation of the wind barrier because the O&O Policy provides for the installation of temporary barriers. However, the Applicant has conversely stated it installed the wind barrier to protect the public against harsh weather while they awaited entry to the office building due to implemented social distancing measures. As such, the wind barrier did not address an immediate threat resulting from COVID-19 nor was it necessary to facilitate social distancing. Therefore, the wind barrier is not considered an eligible temporary barrier under FEMA’s COVID-19 policies and the FAL OT costs associated with its installation are not eligible.[9] Regarding the FAL OT costs claimed for staff opening and closing buildings outside of normal hours, the Applicant has not identified any eligible emergency work performed by its employees during those OT hours, and therefore it has not demonstrated that the costs are directly tied to the performance of eligible emergency protective measures found in FEMA’s COVID-19 policies. Conclusion