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Regular and Overtime Labor
Appeal Brief
Appeal Letter
Citation: FEMA-1044-DR-CA; PA ID 081-73262; DSR 98826.
Cross Reference: Winter storm and flooding; debris clearing; eligibility of force account regular labor - regular time and overtime.
Summary: The 1995 winter storms deposited debris consisting primarily of fallen trees and branches onto the streets and parkways of the City of South San Francisco. In response to a request for assistance, FEMA wrote DSR 98826 and approved it on May 11, 1995, for $13,121. The DSR funded the City for the overtime hours of its regular employees that were directed towards cleanup of the city streets and the equipment costs. The City claimed that it dedicated its employees to the cleanup operations full-time and that FEMA should reimburse it for both the regular time and the overtime. It claimed that its costs were $51,478 and that these costs amounted to less than half what contracting out cleanup operation would have cost. The City also felt that because the City of Los Angeles was allowed to claim regular hours of its regular employees for work they performed following the Northridge earthquake, it should likewise be granted a waiver. FEMA denied both the original request and the first appeal of the applicant because the regulations specifically disallow such payments. The applicant submitted a second appeal on the same grounds with essentially no new documentation to support the claim.
Issue: Should FEMA grant the applicant's request for a waiver to the regulations to permit the payment of regular full time employees regular time salaries?
Findings: No. The Federal Register releasing the amended regulations at 44 CFR 206.228(4) was published on September 14, 1993. They clearly indicate that only overtime salaries for regular full-time employees can be eligible for emergency disaster funding. FEMA can only legally reimburse the overtime pay for the City's employees.
Rationale: 44 CFR 206.228(a)(4).
Appeal Brief
| Disaster | FEMA-1044-DR |
| Applicant | City of South San Francisco |
| Appeal Type | Second |
| PA ID# | 081-73262 |
| PW ID# | 98826 |
| Date Signed | 1999-10-18T04:00:00 |
Cross Reference: Winter storm and flooding; debris clearing; eligibility of force account regular labor - regular time and overtime.
Summary: The 1995 winter storms deposited debris consisting primarily of fallen trees and branches onto the streets and parkways of the City of South San Francisco. In response to a request for assistance, FEMA wrote DSR 98826 and approved it on May 11, 1995, for $13,121. The DSR funded the City for the overtime hours of its regular employees that were directed towards cleanup of the city streets and the equipment costs. The City claimed that it dedicated its employees to the cleanup operations full-time and that FEMA should reimburse it for both the regular time and the overtime. It claimed that its costs were $51,478 and that these costs amounted to less than half what contracting out cleanup operation would have cost. The City also felt that because the City of Los Angeles was allowed to claim regular hours of its regular employees for work they performed following the Northridge earthquake, it should likewise be granted a waiver. FEMA denied both the original request and the first appeal of the applicant because the regulations specifically disallow such payments. The applicant submitted a second appeal on the same grounds with essentially no new documentation to support the claim.
Issue: Should FEMA grant the applicant's request for a waiver to the regulations to permit the payment of regular full time employees regular time salaries?
Findings: No. The Federal Register releasing the amended regulations at 44 CFR 206.228(4) was published on September 14, 1993. They clearly indicate that only overtime salaries for regular full-time employees can be eligible for emergency disaster funding. FEMA can only legally reimburse the overtime pay for the City's employees.
Rationale: 44 CFR 206.228(a)(4).
Appeal Letter
October 18, 1999
Mr. D.A. Christian
Governor's Authorized Representative
Governor's Office of Emergency Services
Post Office Box 419023
Rancho Cordova, California 95741
RE: Second Appeal-City of South San Francisco-PA ID 081-73262
FEMA-1044-DR-CA, DSR 98826.
Dear Mr. Christian:
This is in response to your November 18, 1998, letter forwarding the referenced second appeal dated September 17, 1998. I regret the delay in responding to your letter, which was not received in this office until May 27, 1999. The Region IX Disaster Recovery Manager (DRM) furnished a copy of the appeal on May 20, 1999, when it was discovered that we had not received the December 17, 1998, mailing.
The applicant is appealing the Federal Emergency Management Agency's (FEMA's) denial of its request to amend Damage Survey Report (DSR) 98826 to include 2,258 regular working hours of its regular full-time employees for an additional cost of $51,478. The storm disaster deposited debris consisting primarily of fallen trees and branches onto city streets and parkways. As a result, FEMA prepared DSR 98826 for $13,121 to cover the cost of 214 hours of overtime for the regular employees of the City and the regular and overtime hours of the force account equipment used in performing debris collection. The regular hours that the City claimed were not approved because 44 CFR 206.228(4) specifically makes ineligible ".the straight- or regular-time salaries and benefits of a subgrantee's permanently employed personnel."
The City stated that its option of using its employees for the emergency debris removal work was a wise and economical course of action because using a private contractor for the same work was estimated to cost between $104,000 and $147,000. The city claimed that it was unaware that FEMA's regulations had been revised making the straight-time of regular employees ineligible for emergency work. At the same time, it was aware that FEMA had granted a waiver to the City of Los Angeles enabling it to be reimbursed for regular time salaries of its employees used in the Northridge earthquake recovery efforts. The applicant suggested that this situation closely resembled that of the City of Los Angeles following the earthquake and that FEMA, therefore, should treat it similarly.
The Northridge earthquake presented a unique set of circumstances that was recognized by the Office of Management and Budget (OMB) leading to the granting of the waiver. Because of the severity of the disaster, many buildings were left in damaged conditions and were threats to the general public. OMB, therefore, granted a waiver to the City of Los Angeles for using its force account labor during regular hours to perform safety inspections in connection with permit processing, demolition of unsafe structures, and the removal of associated demolition debris. Such circumstances did not exist for FEMA-1044, therefore, no waiver was considered.
I have reviewed the information submitted with the second appeal, as well as our response to your first appeal (copy enclosed). I have concluded that the Regional Director's decision on the first appeal is consistent with program statute and regulations. Therefore, I am denying the second appeal.
Please inform the subgrantee of my determination. In accordance with the appeal procedure governing appeal decisions made on or after May 8, 1998, my decision 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
Enclosure
cc: Martha Z. Whetstone
Regional Director
FEMA Region IX
Mr. D.A. Christian
Governor's Authorized Representative
Governor's Office of Emergency Services
Post Office Box 419023
Rancho Cordova, California 95741
RE: Second Appeal-City of South San Francisco-PA ID 081-73262
FEMA-1044-DR-CA, DSR 98826.
Dear Mr. Christian:
This is in response to your November 18, 1998, letter forwarding the referenced second appeal dated September 17, 1998. I regret the delay in responding to your letter, which was not received in this office until May 27, 1999. The Region IX Disaster Recovery Manager (DRM) furnished a copy of the appeal on May 20, 1999, when it was discovered that we had not received the December 17, 1998, mailing.
The applicant is appealing the Federal Emergency Management Agency's (FEMA's) denial of its request to amend Damage Survey Report (DSR) 98826 to include 2,258 regular working hours of its regular full-time employees for an additional cost of $51,478. The storm disaster deposited debris consisting primarily of fallen trees and branches onto city streets and parkways. As a result, FEMA prepared DSR 98826 for $13,121 to cover the cost of 214 hours of overtime for the regular employees of the City and the regular and overtime hours of the force account equipment used in performing debris collection. The regular hours that the City claimed were not approved because 44 CFR 206.228(4) specifically makes ineligible ".the straight- or regular-time salaries and benefits of a subgrantee's permanently employed personnel."
The City stated that its option of using its employees for the emergency debris removal work was a wise and economical course of action because using a private contractor for the same work was estimated to cost between $104,000 and $147,000. The city claimed that it was unaware that FEMA's regulations had been revised making the straight-time of regular employees ineligible for emergency work. At the same time, it was aware that FEMA had granted a waiver to the City of Los Angeles enabling it to be reimbursed for regular time salaries of its employees used in the Northridge earthquake recovery efforts. The applicant suggested that this situation closely resembled that of the City of Los Angeles following the earthquake and that FEMA, therefore, should treat it similarly.
The Northridge earthquake presented a unique set of circumstances that was recognized by the Office of Management and Budget (OMB) leading to the granting of the waiver. Because of the severity of the disaster, many buildings were left in damaged conditions and were threats to the general public. OMB, therefore, granted a waiver to the City of Los Angeles for using its force account labor during regular hours to perform safety inspections in connection with permit processing, demolition of unsafe structures, and the removal of associated demolition debris. Such circumstances did not exist for FEMA-1044, therefore, no waiver was considered.
I have reviewed the information submitted with the second appeal, as well as our response to your first appeal (copy enclosed). I have concluded that the Regional Director's decision on the first appeal is consistent with program statute and regulations. Therefore, I am denying the second appeal.
Please inform the subgrantee of my determination. In accordance with the appeal procedure governing appeal decisions made on or after May 8, 1998, my decision 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
Enclosure
cc: Martha Z. Whetstone
Regional Director
FEMA Region IX