Overtime and Straight-Time Costs

Appeal Brief Appeal Letter

Appeal Brief

DisasterFEMA-1155-DR
ApplicantCalifornia Department of Water Resources
Appeal TypeSecond
PA ID#000-92004
PW ID#73962
Date Signed1999-10-12T04:00:00
Citation: Appeal Brief; Second Appeal; California Department of Water Resources; FEMA-1155-DR-CA; PA #000-92004

Cross Reference: DSR 73962; Force Account Labor; Overtime Labor Costs; Straight-Time Labor Costs; Special Exception, Non-State Funded; Category B;

Summary: As a result of late winter storms of 1996, the California Department of Water Resources (DWR) performed flood fighting efforts using State Water Project (SWP) personnel. FEMA prepared DSR 73962 for $67,016 to fund force account overtime labor and benefits for monitoring and gathering high-water data to delineate the extent of the flooding. Upon review, the DSR was determined to be ineligible because the work of gathering statistical data was consistent with the normal duties of the DWR. With the first appeal, the DWR indicated that the work was required to determine flood fight strategy, extent of flooding and obtain entry permits for the U.S. Army Corps of Engineers. Additionally, the DWR appealed the disallowance of $147,477 for SWP straight-time salaries because State Water Project Contractors, rather than taxpayers of the State, fund the SWP. The Regional Director denied the appeal because the DWR did not provide any additional documentation to support its claim and no documentation was presented to support the elimination or lessening of a threat. The State forwarded the second appeal on May 26, 1999, requesting a total of $178,973. The basis of the appeal is that the work was required to determine the extent of the flooding. Specially funded personnel (SWP) were utilized to perform these duties and their salaries should be an exception to the force account regulation. DWR requests an exception to the force account regulation, as was granted to Los Angeles for the Northridge earthquake, because the use of SWP personnel is more cost effective.

Issue:
  1. Was the worked performed by the SWP personnel eligible as an emergency protective measure?
  2. Should an exception to the force account regulation be provided?
Finding:
  1. No. The work performed did not reduce or lessen an immediate threat
  2. No.
Rationale: 44 CFR 206.225 206.228 (a)(4).

Appeal Letter

October 12, 1999

Mr. D. A. Christian
Governor's Authorized Representative
Governor's Office of Emergency Services
P.O. Box 419023
Rancho Cordova, California 95741

Re: Second Appeal - California Department of Water Resources, Force Account Straight-Time Charges, FEMA-1155-DR-CA, DSR 73962

Dear Mr. Christian:

This is in response to your letter dated May 26, 1999, to the Federal Emergency Management Agency (FEMA). With that letter, you forwarded a second appeal of Damage Survey Report (DSR) 73962 under FEMA-1155-DR-CA on behalf of the California Department of Water Resources (DWR). The DWR is requesting $178,973 for force account straight-time, overtime and expenses for flood-related activities.

As a result of late winter storms of 1996, the DWR performed flood-fighting efforts using State Water Project (SWP) personnel. FEMA prepared DSR 73962 for $67,016 to fund force account overtime labor and benefits for monitoring and gathering high-water data to delineate the extent of the flooding. Upon review, the DSR was determined to be ineligible because the work of gathering statistical data was consistent with the normal duties of the DWR.

With the submission of the first appeal, the DWR indicated that the work was required to determine flood fight strategy, extent of flooding and obtain entry permits to owners' property to accomplish flood-fighting activities for the U.S. Army Corps of Engineers (USACE). Additionally, the DWR appealed the disallowance of $147,477 for SWP straight-time salaries because State Water Project Contractors, rather than taxpayers of the State, fund the SWP. The Regional Director denied the appeal because the DWR did not provide any additional documentation to support its claim and no documentation was presented to support the elimination or lessening of a threat.

The State forwarded the second appeal on May 26, 1999, requesting a total of $178,973, for reimbursement of straight-time and overtime labor and expenses. The basis of the appeal is that the work was required to determine the extent of the flooding and to support the USACE. The State obtained entry permits to owners' property to enable the USACE to effect repairs to flood damaged levees. Additionally, because specially funded personnel (SWP) were utilized to perform these flood-fighting duties, their salaries should be an exception to the force account regulation. The DWR requests an exemption to the force account regulation, as was granted to the city of Los Angeles for the Northridge earthquake, because the use of SWP personnel was more cost effective than using contractors.
The issue of this appeal is whether or not the work performed was required to remove or lessen an immediate threat to life, public health or property as required by Title 44 of the Code of Federal Regulations (CFR) section 206.225. The work involved the collection of statistical data and the obtaining of entry permits to support the USACE. This work may have been necessary for documenting the extent of the flooding and establishing a basis for future flood management, but no documentation was submitted to support the elimination or lessening of an immediate threat from the disaster. As such, the work is not eligible for FEMA funding. Additionally, the labor and expenses incurred in support of the USACE are not eligible for FEMA funding. The other issue of the disallowance of straight-time salaries, which included a request for an exception to 44 CFR 206.228 (a) (4), is not relevant because the work is ineligible. Therefore, I am denying the appeal.

Please inform the applicant 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

cc: Martha Whetstone
Regional Director
FEMA Region IX
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