[Federal Register: February 24, 2005 (Volume 70, Number 36)]
[Rules and Regulations]
[Page 9181-9203]
From the Federal Register Online via GPO Access [wais.access.gpo.gov]
[DOCID:fr24fe05-14]
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Part III
Department of Homeland Security
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Federal Emergency Management Agency
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44 CFR Part 208
National Urban Search and Rescue Response System; Maximum Pay Rate
Table, National Urban Search and Rescue Response System (US&R); Interim
Final Rule and Notice
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DEPARTMENT OF HOMELAND SECURITY
Federal Emergency Management Agency
44 CFR Part 208
RIN 1660-AA07 (formerly RIN 3067-AC93)
National Urban Search and Rescue Response System
AGENCY: Federal Emergency Management Agency (FEMA), Emergency
Preparedness and Response Directorate (EP&R), Department of Homeland
Security (DHS).
ACTION: Interim rule with request for comments.
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SUMMARY: This interim rule standardizes the financing, administration
and operation of the National Urban Search and Rescue Response System,
a cooperative effort of the Department of Homeland Security,
participating State emergency management agencies and local public
safety agencies across the country. This rule addresses the
relationship between Sponsoring Agencies \1\ of Urban Search & Rescue
(US&R) Task Forces and DHS and also funding for preparedness and
response activities, including the acquisition of equipment and
supplies and training.
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\1\ Sponsoring Agencies are State or local government agencies
that have signed Memoranda of Agreement with DHS to organize and
manage US&R Task Forces.
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Concurrently we \2\ are publishing as a Notice in this issue of the
Federal Register a Maximum Pay Rate Table on which we also request
comments.
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\2\ Throughout the preamble to this rule the terms ``we'' and
``our'' refer to and mean the Department of Homeland Security.
``You'' refers to the reader.
DATES: This interim rule is effective February 24, 2005. We invite
comments on this interim rule and the Maximum Pay Rate Table published
separately today as a Notice in this issue of the Federal Register. We
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will accept comments on both until April 11, 2005.
ADDRESSES: Mail: When submitting comments by mail, please send the
comments to the Rules Docket Clerk, Office of the General Counsel,
Federal Emergency Management Agency, 500 C Street, SW., room 840,
Washington, DC 20472. To ensure proper handling, please reference RIN
1660-AA07 and Docket No. DHS-2004-0010 on your correspondence. This
mailing address may also be used for submitting comments on paper,
disk, or CD-ROM.
Hand Delivery/Courier: The address for submitting comments by hand
delivery or courier is the same as that for submitting comments by
mail.
Viewing Comments: You may view comments and background material at:
http://www.epa.gov/feddocket or http://www.regulations.gov. You may
also inspect comments in person at the Office of the General Counsel,
Federal Emergency Management Agency, 500 C Street, SW., room 840,
Washington, DC 20472.
FOR FURTHER INFORMATION CONTACT: Michael Tamillow, Federal Emergency
Management Agency, Emergency Preparedness and Response Directorate,
Department of Homeland Security, 500 C Street, SW., room 326,
Washington, DC 20472, (202) 646-2549, or (e-mail)
mike.tamillow@dhs.gov.
SUPPLEMENTARY INFORMATION:
Background
The Federal Emergency Management Agency (FEMA) published a proposed
rule, National Urban Search and Rescue Response System, on December 18,
2002, 67 FR 77627-77640 (Proposed Rule). On March 1, 2003, FEMA became
a part of the Emergency Preparedness and Response Directorate (EP&R),
Department of Homeland Security (DHS). The National Urban Search and
Rescue Response System is now a program in FEMA under the EP&R
Directorate.
This preamble and Interim Rule reflect certain decisions made
regarding comments that FEMA received on the Proposed Rule, and changes
resulting from FEMA's integration into the Department of Homeland
Security. The process for creating and updating the Maximum Pay Rate
Table (Table), which establishes the maximum rates that DHS will pay
for certain medical, engineering, canine handling and backfill
services, is described in Sec. 208.12. The Maximum Pay Rate Table,
which was mentioned but not published in the Proposed Rule, is
incorporated in the Interim Rule, and published concurrently with this
Interim Rule as a Notice. Because the Maximum Pay Rate Table was not
published previously and will become a part of the National Urban
Search and Rescue Response System final rule, we are asking for public
comment both on the Table and the Interim Rule.
Section 303 of the Robert T. Stafford Disaster Relief and Emergency
Assistance Act (Stafford Act), 42 U.S.C. 5144, authorizes the President
of the United States to form emergency support teams of Federal
personnel to be deployed in an area affected by a major disaster or
emergency. The President delegated this function to the Director of the
FEMA under Executive Order (E.O.) 12148. Under E.O. 13286 of February
28, 2003, the President amended E.O. 12148 to transfer the FEMA
Director's delegated authority to the Secretary of Homeland Security,
and under Homeland Security Delegation No. 9100, delegated the
Secretary's authority under Title V of the Homeland Security Act of
2002, which includes the Stafford Act, to the Under Secretary for
Emergency Preparedness and Response (EP&R).
Section 306(a) of the Stafford Act authorizes the President (as
delegated to the Under Secretary for EP&R) to accept and use the
services or facilities of any State or local government, or of any
agency, officer or employee thereof, with the consent of such
government, in the performance of his responsibilities under the
Stafford Act. Section 306(b) of the Stafford Act authorizes the
President to appoint and fix the compensation of temporary personnel
without regard to U.S. Code provisions governing appointments in the
competitive service. Section 403(a)(3)(B) of the Stafford Act provides
further that the President may authorize Federal agencies to perform
work on public or private lands essential to save lives and protect
property, including search and rescue and emergency medical care, and
other essential needs. Under section 621(c) of the Stafford Act, the
Secretary may accept and use the services of State or local
governments, and use voluntary services by individuals or organizations
as needed.
FEMA established the National Urban Search & Rescue Response System
(System or US&R) under the authorities cited. The System provides
specialized lifesaving assistance during major disasters or emergencies
that the President declares under the Stafford Act. US&R operational
activities include locating, extricating and providing on-site medical
treatment to victims trapped in collapsed structures, victims of
weapons of mass destruction events, and when assigned, performing
incident command or other operational activities.
Created in consultation with State emergency management agencies
and local public safety agencies, the System is built around a core of
Sponsoring Agencies prepared to deploy US&R Task Forces \3\ immediately
and initiate US&R operations at DHS's direction. Members of the Task
Forces, also referred to as ``System Members,'' may respond as
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part of Joint Management Teams (JMT) \4\ or other overhead or technical
teams, or as individual resources.
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\3\ The US&R System comprises 28 Task Forces in 19 States. A
full Task Force consists of 70 System Members, three deep (designed
for 210 members) specially trained and equipped to find, extricate,
and provide initial medical care to victims of collapsed buildings,
weapons of mass destruction, as well as to perform other assigned
duties.
\4\ A Joint Management Team is a multi-disciplinary group of
National Disaster Medical System (NDMS), Urban Search and Rescue
(US&R) and other specialists combined to provide operational,
planning, logistics, finance and administrative support for US&R and
NDMS resources, and to provide technical advice and assistance to
State and local governments.
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The Task Forces are staffed primarily by local fire department and
emergency services personnel specially trained and experienced in
collapsed structure search and rescue operations, incident management,
and other emergency operational activities. On activation by DHS,
members of the US&R Task Forces, US&R System Members of Joint
Management Teams, and other overhead or technical teams, operate as
Temporary Excepted Federal Volunteers.\5\
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\5\ The term ``Temporary Excepted Federal Volunteer'' means that
a System member's status is temporary for the period of Federal
activation, excepted from Civil Service rules regarding Federal
employment, Federal for purposes of tort claim protection and
Federal ``workers' compensation'', and a volunteer in that DHS does
not pay the individual directly, but reimburses the Sponsoring
Agency for the System Member's services.
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The National Urban Search and Rescue Response System presently
comprises 28 US&R Task Forces in 19 States. Typically, a State agency
or local public safety agency (Sponsoring Agency) sponsors each of the
Task Forces. While the Sponsoring Agencies are solely responsible for
the administrative management of their respective Task Forces, many
Sponsoring Agencies invite other public safety agencies and other
entities in their vicinity to contribute personnel and other resources
to the Task Force. These public safety agencies and other entities that
enter into agreements with the Sponsoring Agency to contribute
personnel and other resources are Participating Agencies. In certain
cases, individuals who are not employed by a Sponsoring Agency or
Participating Agency \6\ become members of a Task Force as Affiliated
Personnel.\7\
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\6\ A Participating Agency is a State or Local Government, non-
profit organization, or private organization that has executed an
agreement with a Sponsoring Agency to participate in the National
US&R Response System.
\7\ Affiliated Personnel are individuals not normally employed
by a Sponsoring Agency or Participating Agency and individuals
normally affiliated with a Sponsoring Agency or Participating Agency
as volunteers.
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DHS provides financial support in the form of grants or Cooperative
Agreements \8\ (Grants) to each of the Sponsoring Agencies under the
disaster preparedness and training authorities of the Stafford Act. The
Sponsoring Agencies use these Grants to train Task Force personnel,
maintain a state of readiness and to acquire necessary equipment and
supplies. DHS awards and administers Grants under 44 CFR 13. In return
for this financial support, each Task Force must be available for
deployment as a Federal resource when DHS activates it.\9\ Task Forces
also must maintain minimum training requirements that DHS
prescribes.\10\
Separate non-standardized memoranda of agreement (MOA), which were
individually negotiated at different stages in the System's
development, currently govern the relationship between DHS and each of
the Sponsoring Agencies. In addition, we require the Sponsoring
Agencies to enter into separate Cooperative Agreements on forms that
our Office of Financial Management prescribes. As the System has
matured, the participants have concluded that it is desirable to
standardize these relationships through a set of comprehensive
regulations. We developed the Interim Rule with the assistance of the
National Urban Search and Rescue Advisory Committee and its Legal
Issues Working Group.
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\8\ Cooperative Agreements are similar to grants, but differ
from grants in the amount of government cooperation and involvement
in the implementation of the agreement.
\9\ The Task Forces also respond to disasters and emergencies in
their home states as State resources. DHS does not normally and
directly reimburse Sponsoring Agencies of the Task Forces for the
costs that Task Forces incur when deploying in their home states,
although in a State deployment, Task Forces may use equipment that
they have purchased with DHS grant funds and Federal property that
is in their custody. Subpart C of this rule does not cover in-state
deployment of US&R resources. However, Federal reimbursement for the
cost of an in-state deployment may be available through DHS's Public
Assistance Program under regulations published at 44 CFR part 206.
In addition, the Office of Foreign Disaster Assistance of the U.S.
Agency for International Development (USAID) often uses the services
of certain Task Forces to deliver humanitarian assistance abroad
under agreements to which DHS is not a party. The rule does not
affect the relationships between USAID and the Sponsoring Agencies
of the Task Forces.
\10\ In addition to participation on Task Forces, participants
in the System (referred to as System Members) may also be called
upon to serve as members of Joint Management Teams or other overhead
or technical teams.
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Adoption of the Interim Rule enables DHS to standardize our
agreements with the Sponsoring Agencies. Following adoption of the
final rule, we will ask each of the Sponsoring Agencies to enter into a
new, streamlined MOA as well as a Preparedness Cooperative
Agreement,\11\ as described in subpart B of the rule, and a Response
Cooperative Agreement,\12\ as described in subpart C of this rule.
These new, standardized agreements will document our relationship with
the Sponsoring Agencies.\13\ Upon the effective date of the Interim
Rule, if a conflict exists between a provision of the rule and an
existing MOA, the provision of the rule will control.
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\11\ DHS enters into a Preparedness Cooperative Agreement with
each Sponsoring Agency to provide Federal funding to develop and
maintain System resource (personnel, equipment and supplies)
capabilities and readiness for operations, including training.
\12\ When DHS activates a Task Force it provides Federal funding
for the Task Force's response under the terms of the Response
Cooperative Agreement.
\13\ Following adoption of the final rule, DHS expects to
develop a National US&R Response System Directive Manual, which will
contain system policies and explain other Federal regulations, and
will govern the operation of the National US&R Response System. The
Directive Manual will be updated periodically as needed.
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References in the Preamble to Parts, Subparts or Sections
Throughout the preamble and rule, references to part, subpart, or
sections (as ``section'' or ``Sec. '') are to parts, subparts or
sections of this rule unless specifically cited as a section of an Act,
e.g., section 306 of the Stafford Act, or document other than this
rule.
Organization of the Interim Rule
The Interim Rule is divided into four subparts. Subpart A addresses
the organization of the National US&R Response System, explains the
relationship among the various components of the system, incorporates
certain provisions of other regulations and provides for sanctions if
US&R regulations and directives are violated.
Subpart B describes the process through which we provide grant
funds to the Sponsoring Agencies to maintain Task Force readiness.
Sponsoring Agencies use these grant funds to administer the Task
Forces, provide initial and recurrent training,\14\ and acquire and
maintain a uniform cache of equipment and supplies.
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\14\ Sections 306(a) and 621(c) of the Stafford Act, 42 U.S.C.
5149(a), 5197(c), authorize DHS to federalize members of US&R Task
Forces to participate in preparedness activities. We periodically
federalize US&R teams to participate in DHS-sanctioned training
exercises, also known as mobilization exercises. During these
periods, they are not ``Activated'' within the meaning of Sec.
208.2 of the rule and, therefore, the provisions of subpart C do not
apply to DHS-sanctioned training exercises. Funding for
participation in DHS-sanctioned training exercises may be available
under Sec. 208.24(b) of the rule.
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Following adoption of the final rule, we will ask each Sponsoring
Agency to enter into a Preparedness Cooperative Agreement with us. In
addition, from time to time, DHS will purchase and distribute equipment
and supplies directly to each Task Force.
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Subpart C addresses the deployment of System Members, either as
part of a Task Force, a Joint Management Team, or another overhead or
technical team, as a Federal resource, and the reimbursement of the
Sponsoring Agencies for the costs that they incur as a result of these
deployments. This subpart also explains the Response Cooperative
Agreement that we will ask each Sponsoring Agency to sign following
adoption of the final rule.
Subpart D establishes the procedures by which Sponsoring Agencies
may present claims to DHS for reimbursement of costs incurred when we
use System Members as Federal resources, including the timeframes in
which the Sponsoring Agencies must present such claims, and procedures
for appeals, in writing and submitted within 60 days after receipt of
written notice of DHS's determination of the initial appeal. The
timeframes and procedures for appeals are set out in Sec. 208.62,
Appeals.
A glossary of defined terms that we use throughout the Interim Rule
and in subpart A appears in Sec. 208.2. A sub-glossary of defined
terms used 208.32 (subpart C) appears in that subpart.
Sectional Analysis
Section 208.33 sets forth the principles under which we will
reimburse Sponsoring Agencies for participating in Alerts \15\ and
Activations.\16\ Subsection (a) expresses our policy that participation
in Alerts and Activations be as cost neutral as possible to Sponsoring
Agencies and Participating Agencies. This commitment is critical to
avoid putting local fire departments, which are the predominant
sponsors of the Task Forces, at risk for the cost of providing
emergency services outside of their respective jurisdictions. Payments
are subject to 44 CFR part 13, particularly Sec. Sec. 13.21 (payment)
and 13.22 (allowable cost). 44 CFR 13.22 incorporates various Office of
Management and Budget (OMB) circulars that address allowable cost.
However, if there is a conflict between this rule and 44 CFR part 13 or
the OMB Circulars, this rule controls.
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\15\ Alert means the status of a System resource's readiness
when triggered by an Alert Order indicating that DHS may Activate
the System resource.
\16\ Activation means the status of a System resource placed at
the direction, control and funding of DHS in response to, or in
anticipation of, a presidential declaration of a major disaster or
emergency under the Stafford Act.
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Section 208.39 explains how we will compensate Sponsoring Agencies
for personnel costs during Activations. When we deploy System Members,
either as part of a Task Force, or as part of a Joint Management Team
or other overhead or technical team, we appoint them into Federal
service as Excepted Temporary Federal Volunteers and they work under
our direction and control for the duration of the deployment. However,
System Members who are regularly employed by a Sponsoring Agency or
Participating Agency retain their concurrent employment relationship
with their usual employers.\17\ The maintenance of this concurrent
employment relationship is a fundamental principle of the National US&R
Response System, and dates from the inception of the System. We adopted
the principle after consultations with the States, local governments
and public safety employee organizations and we intend it to prevent
System Members from suffering a break in their service to the usual
employer while away on the Federal deployment. While on a Federal
deployment, these System Members receive pay and benefits from their
usual employers during the Federal deployment just as they would if
they were not Activated.
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\17\ In some cases, the relationship between the individual and
the Sponsoring Agency or Participating Agency is a contractual
relationship or a volunteer relationship. These regulations do not
create a common law employment relationship between an individual
and a Sponsoring Agency or Participating Agency where none otherwise
exists.
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Section 208.39(a) of this part provides that we will reimburse the
Sponsoring Agency for personnel costs that result from the Activation
and are consistent with this rule. The Sponsoring Agency is responsible
for reimbursing the personnel costs of its Participating Agencies under
the provisions of Sec. 208.39.
Section 208.39(b) of this part speaks to how we compensate
Sponsoring Agencies for overtime costs that might not have been
incurred but for the Federal deployment. Section 7(k) of the Fair Labor
Standards Act (section 7(k)) exempts public safety organizations from
paying their employees overtime under certain circumstances. As
interpreted by Department of Labor regulations and court decisions, the
section 7(k) exemption does not apply unless the employee in question
is trained in fire protection, has the legal authority and
responsibility to engage in fire suppression, is employed by a public
safety agency engaged in fire suppression and actually engages in fire
suppression at least 80 percent of the time.
After reviewing Department of Labor regulations relating to section
7(k) and relevant court decisions, we are uncertain whether the rescue
activities undertaken by Sponsoring Agencies of the US&R Task Forces
are analogous to fire suppression. We also note that some System
Members will not fall within the section 7(k) exemption because they
are not regularly employed in fire suppression. It would be unfair to
compensate these individuals at one overtime rate, when fellow System
Members, who may be volunteers or part-time fire service employees, are
compensated at another overtime rate. For these reasons, DHS instructs
the Sponsoring Agencies to disregard the section 7(k) exemption when
calculating its reimbursement for personnel costs, and reimburses
Sponsoring Agencies for regular wages and overtime wages as described
in Sec. 208.39(d), (e) and (f).\18\ This instruction will not create a
windfall for Sponsoring Agencies and Participating Agencies because
they cannot charge DHS for personnel costs in excess of those that they
actually and normally incur.
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\18\ Section 208.40(b) addresses reimbursement for various
differentials paid by Sponsoring Agencies.
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Section 208.39(c) of this part establishes a uniform 24-hour tour
of duty during the Federal deployment. DHS will reimburse the
Sponsoring Agencies for 24 hours of pay for each day that a System
Member is deployed, from his or her arrival at the Point of Assembly
\19\ until his or her release from duty, which may be the airport or
Air Force Base to which the Task Force returns, or at the Task Force's
original Point of Assembly,\20\ or some other point. This reimbursement
procedure is known as ``portal to portal'' pay.
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\19\ Certain activated System Members will not report to a Point
of Assembly, but rather will be instructed to travel to the incident
location directly from their home or regular place of work. These
individuals are Activated when they leave their home or regular
place of business and we will adjust the ``portal to portal'' pay of
these individuals accordingly.
\20\ The Point of Assembly is the location where a Task Force
assembles before departure in response to an activation order.
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We are not establishing a different rate of reimbursement for meal
periods or scheduled sleep periods. Once deployed, all System Members
must be available for immediate response twenty-four hours a day during
the entire deployment period. Meal periods and sleep periods will be
interrupted if System Members are needed to engage in vital lifesaving
activities, just as they are in the firehouse.
Search and rescue professionals whom we expect to respond on a
moment's notice at any time during a 24-hour period should be
compensated for 24 hours of work. Activated System Members often work
the first 24 to 48 hours of the Activation continuously, as
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this initial period involves packaging the Task Force for transport,
loading and unloading equipment, attending briefings, receiving and
adjusting to changes in operational objectives, establishing the base
of operations and initiating the search for live victims. Once the
search begins, we control Task Force activities during the entire 24-
hour period and Task Forces must be available for immediate response at
any time.
Section 208.39(g) provides for the reimbursement of Backfill \21\
expenses. The National US&R Response System depends upon the voluntary
participation of public safety agencies. We recognize that these public
safety agencies may be short-handed when some of their personnel are
away on a Federal deployment. If a public safety agency ordinarily
Backfills a position in situations where a regular employee is
unavailable for a period of time similar to that spent on a US&R
deployment (e.g., Family and Medical Leave, participation in an
extended mutual aid assignment, injury or disability), then the public
safety agency may bill DHS for the cost of Backfilling the position for
the period that the regular employee is away on a Federal deployment.
However, we will only reimburse for the incremental overtime salary and
benefit expenses associated with the replacement employee. We will not
reimburse the Backfilling agency for the regular salary and overtime
cost of the replacement employee because the public safety agency would
have to pay this cost if the Federal deployment had not occurred.
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\21\ Backfill means the personnel practice of temporarily
replacing a person in his or her usual position with another person.
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Public Comments on the Proposed Rule
During the comment period on the Proposed Rule, which closed on
February 3, 2003, we received a number of comments. We summarize the
comments and our response to them in the materials that follow.
Usage of Terms in the SUPPLEMENTARY INFORMATION. We received
comments concerning the use of the terms ``Task Force Member'' and
``System Member'' in the SUPPLEMENTARY INFORMATION to the Proposed
Rule. In the SUPPLEMENTARY INFORMATION to the Proposed Rule, we used
the term ``Task Force Member'' to denote individuals who respond as
part of the National US&R Response System. However, while most
participants in the System respond as part of a US&R Task Force,
participants in the System may also be called upon to serve on Joint
Management Teams and other overhead or technical teams. As a result,
the term ``System Member'' is a more accurate and comprehensive term to
describe individuals who participate in System activities, and the term
``Task Force Member'' is best used to describe a System Member who is
Activated as part of a Task Force. We have corrected the usage of these
terms in the SUPPLEMENTARY INFORMATION to the Interim Rule.
In certain parts of the SUPPLEMENTARY INFORMATION to the Proposed
Rule, we also used the term ``US&R Task Force,'' rather than
``Sponsoring Agency,'' to denote the agency or entity with which DHS
has entered into legal and financial agreements with respect to the
US&R Task Forces. We have corrected the usage of these terms in the
SUPPLEMENTARY INFORMATION to the Interim Rule.
Finally, in the SUPPLEMENTARY INFORMATION to the Proposed Rule, we
described the reimbursable period during an Activation as ending when a
System Member returns to the pre-deployment staging area. This
description conflicts both with standard terminology and the reality of
System deployments. A more accurate description of the duration of the
reimbursable period during an Activation is set forth in the Interim
Rule.
Eligibility for Reimbursement and Coverage Under Federal Statutes
While Traveling to and from the Point of Assembly. One Task Force
commented on the time period that we propose to pay System Members,
namely from arrival at the Point of Assembly until his or her release
from duty, which may be the airport or Air Force Base to which the Task
Force returns, or at the Task Force's original Point of Assembly, or
some other point. Noting that some of its members live 2 or more hours
away from the Point of Assembly, the Sponsoring Agency reimburses
members from the time that they are alerted to the time that they
return home (including travel mileage).
Response: This question has two aspects: (1) Reimbursement for time
spent traveling to and from the Point of Assembly, and reimbursement
for travel mileage while traveling to and from the Point of Assembly;
and (2) consideration of time spent traveling to and from the Point of
Assembly as ``in the course of employment'' for the purposes of
workers' compensation (for injuries sustained) and tort liability (for
civil wrongs or harms caused) during that travel.
Reimbursement: This issue is related to the Fair Labor Standards
Act (FLSA), which establishes a minimum hourly wage for employees and
requires employers to pay overtime wages for hours worked above the
statutory maximum. It is also related to the Portal-to-Portal Act of
1947, which requires that time spent ``walking, riding, or traveling to
and from the actual place of performance of the principal activity or
activities which such employee is employed to perform'' is not
compensable time under the FLSA unless it is compensable by contract,
custom, or practice. The general Federal rule regarding travel mileage
is: commuting to and from work, that is, between permanent residence
and permanent duty station, is a personal expense. The employee is
expected to be at work; how the employee chooses to get there is
entirely his or her own business. 27 Comp. Gen. 1 (1947).
There are exceptions to the general rule if the travel is not
ordinary and is spent outside the workday to and from job assignments.
Examples include substantial travel to an emergency job assignment at a
location outside the normal workplace, or the employer requires the
employee to be ``on call'' to respond to emergency job assignments. A
corollary of the ``substantial travel'' exception is that the travel is
noncompensable if the amount of time spent traveling is minimal.
On reconsideration of our position, we will reimburse certain
travel costs and time spent traveling to the Point of Assembly when a
System Member responds to an Activation and must travel a considerable
distance or time, as determined by DHS on a case by case basis, to
reach the Point of Assembly. Otherwise, we will follow the general rule
regarding noncompensable travel, including minimal travel. When we
activate a Task Force or other System resource, timely assembly of the
System Members is critical, and under those circumstances warrants our
exception to the general rule. This exception will apply only to
Activations, and will not apply, for instance, to Alerts, to travel
home after return to the Point of Assembly, or to travel required for
training, which we consider to be ordinary noncompensable travel.
In the Course of Employment: Ordinary travel to and from a fixed
workplace is generally not within the scope of employment for workers'
compensation purposes, under the ``going and coming'' rule. Under the
rule, employees with a fixed workplace are covered by workers'
compensation only when they are on their employer's premises, or
performing an assignment required by the employer. One of the
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exceptions to the general rule of going and coming is travel to and
from job assignments, where the employer compensates the employee for
the time or expense of the travel. Consistent with that exception and
our intent to reimburse travel costs and time spent traveling to the
Point of Assembly in response to an Activation, on a case-by-case basis
we will meet our obligations regarding workers' compensation claims
that arise out of injuries that System Members incur while traveling to
a Point of Assembly in response to an Activation, but for no other
purpose.
Definitions. We received several comments on the definitions in
Sec. 208.2, and made the following changes:
We changed the term ``Memorandum of Understanding'' to ``Memorandum
of Agreement.''
The definition for ``Equipment Cache List'' now reads: ``The DHS-
issued list that defines:
``(1) The equipment and supplies that US&R will furnish to
Sponsoring Agencies; and
``(2) the maximum quantities and types of equipment and supplies
that a Sponsoring Agency may purchase and maintain with FEMA funds.''
The definition for ``Participating Agency'' reads: ``A State or
Local Government, non-profit organization, or private organization that
has executed an agreement with the Sponsoring Agency to participate in
the National US&R Response System.''
One Task Force expressed concern regarding the definitions of
``Program Manager,'' ``Program Office,'' and ``Project Manager.'' We
have decided to retain the definitions of ``Program Manager'' and
``Program Office'' as they are. Currently, the Program Manager is the
Chief of the US&R Section, which is part of the Response Division of
FEMA, under the Emergency Preparedness and Response Directorate of DHS,
and the Program Office is the US&R Section. However, these entities may
change as the organizational structure of DHS evolves. We will notify
the Sponsoring Agencies if we designate a different Program Manager or
Program Office. We have deleted the definition of ``Project Manager''
from the definitions set forth in Sec. 208.22, since that terms
appears nowhere else in the Interim Rule.
We have added the following definition: ``Program Directive means
guidance and direction for action to ensure consistency and
standardization across the National US&R Response System.'' This
replaces the term ``System Order'' in the proposed rule with ``Program
Directive'' in the interim rule.
One commenter recommended that DHS include a definition of
``Affiliated Member.'' The equivalent term is defined at Sec. 208.32
as ``Affiliated Personnel.''
Section 208.6, System Resource Reports. One commenter noted that
Sponsoring Agency, Participating Agencies and System Members are to
cooperate fully in audits, investigations, studies and evaluation, and
asked, ``who pays for salary cost associated with gathering and
processing the information?''
DHS provides funding for program management in the Preparedness
Cooperative Agreement to support administrative activities, including
the salary costs for gathering and processing System resource reports.
Workers' Compensation and Other Benefit Costs. Several Sponsoring
Agencies commented that workers' compensation and other benefit costs
incurred by Sponsoring Agencies as the result of an injury or death to
a System Member are not reimbursable costs. As set forth in Sec.
208.11 and explained in the Supplementary Information, DHS will appoint
System Members into Federal service, concurrent with those individuals'
local employment, to secure protection for such employees under the
Federal Employees' Compensation Act and the Federal Tort Claims Act. If
a System Member sustains an injury, that System Member may file a claim
for compensation under the Federal Employees' Compensation Act. Because
the System Member's Federal appointment is concurrent with his or her
local employment, the System Member may also be eligible for
compensation under his or her local workers' compensation system. In
that case, the System Member may collect either the incremental
difference between Federal benefits and local benefits, or may collect
local benefits in full, depending on whether the local benefits may be
offset by the Federal payment to the System Member.
As explained in Sec. 208.40, DHS will reimburse the Sponsoring
Agency for the workers' compensation insurance premium costs associated
with the time during Activation. However, any local benefit payment is
not a reimbursable expense, because DHS (through the U.S. Department of
Labor) provides coverage under the Federal Employees Compensation Act,
and because we are prohibited under our current statutory authority
from reimbursing Sponsoring Agencies for the costs of benefit payments.
Death or Disability in Line of Duty. One Participating Agency asked
whether a System Member killed or disabled while Activated would be
entitled to benefits through the agency's municipal pension program,
and whether the death or injury would be considered in the line of
duty. We intend that System Members remain fully eligible for local
benefits during Federal Activation, and that, as a result, any death or
injury during Activation should be considered to have occurred while
the System Member was acting in the scope of employment.
Federal Death Benefits. One Sponsoring Agency asked how a ``Federal
death benefit,'' if incurred, would be calculated. The ``Federal death
benefit'' for System Members comprises two separate components: (1) A
benefit payment under the Federal Employees Compensation Act; and (2) a
payment under the Public Safety Officers' Benefit Act. The death and
injury benefits available under each of those statutes are determined
using formulas set forth in those statutes.
Voluntary Contribution to Municipal Pension Plans. One Sponsoring
Agency asked whether contributions to a municipal pension plan made
voluntarily by System Members during an Activation, rather than
contributions made by the System Member's employer under the terms of a
collective bargaining agreement or other arrangement, are reimbursable
by DHS. Voluntary employee contributions, as opposed to mandatory
employer contributions, are not reimbursable expenses.
Contributions to the Pension Plan Based on Overtime. One Sponsoring
Agency commented that under its benefits plan, salary is defined as the
total actual fixed cash compensation, including overtime, and
contributions to its pension plan are based on this total salary,
including overtime. The Sponsoring Agency asked whether contributions
to the pension plan based on overtime pay received during Activation
reimbursable under this rule. Under Sec. 208.40(a)(2), these
contributions are reimbursable.
Cost Sharing. One Task Force commented that Sec. 208.23(f) refers
to ``Cost Sharing'' but makes no distinction between ``hard share,''
i.e., cash contributions, and ``soft share,'' i.e., other value-added
benefits provided by the Sponsoring Agency. We do not presently require
Sponsoring Agencies to provide a cost share, either hard or soft, for
preparedness or response funding. Please note that section 208.22(f)
provides for cost sharing if it were required in the future. If we were
to institute a cost-sharing requirement in the future, we would clearly
indicate in the Cooperative Agreement whether
[[Page 9187]]
such cost share would be ``hard'' or ``soft.''
Equipment Ownership. Several Sponsoring Agencies commented that the
Proposed Rule does not address ownership or disposition of equipment
purchased under this program.
OMB Circulars A-87 and A-110 specify that equipment purchased with
Federal Grant funds is the property of the grantee. However, title,
use, management and disposition of equipment purchased under a grant or
Cooperative Agreement is set out in 44 CFR 13.32, a government-wide
rule to which DHS adheres. While the Sponsoring Agency has title to any
equipment purchased with Federal preparedness and response Cooperative
Agreement funds, DHS reserves the right to transfer title to the
Federal Government or a third party that we may name, under 44 CFR
13.32(g). DHS would generally expect to limit its exercise of this
right to instances when a Sponsoring Agency indicates or demonstrates
that the Sponsoring Agency cannot fulfill its obligations under the
Memorandum of Agreement.
Maximum Pay Rate Table. We received the most number of comments
concerning the Maximum Pay Rate Table (Table) identified in the
Proposed Rule. For clarity, we set forth here the applicability of the
Table and the process we will follow for creating and updating the
Table.
Section 208.32 defines the ``Maximum Pay Rate Table'' as ``the DHS-
issued table that identifies the maximum pay rates for selected System
positions that may be used for reimbursement of Affiliated Personnel
compensation and Backfill for Activated System Members employed by or
otherwise associated with a for-profit Participating Agency.'' In that
same section, ``Affiliated Personnel'' are defined as ``individuals not
normally employed by a Sponsoring Agency or Participating Agency and
individuals normally affiliated with a Sponsoring Agency or
Participating Agency as volunteers.''
One Sponsoring Agency commented that the Table seemed to contradict
the principle of cost neutrality set forth prominently in the Proposed
Rule. However, as defined, the Table applies only to those individuals
who are not normally employed by a Sponsoring Agency or Participating
Agency, or whose affiliation with a Sponsoring Agency or Participating
Agency is as a volunteer; that is, an individual whom the Sponsoring
Agency or Participating Agency does not normally compensate in any way,
at any rate.
The Table sets forth maximum rates for which we will reimburse the
Sponsoring Agency for compensation paid to those individuals while
Activated. The Sponsoring Agency may choose to compensate these
individuals at a higher rate, but we will not reimburse the increment
above the maximum rate specified in the Table. Likewise, the Sponsoring
Agency may choose to enter into a Participating Agency agreement with
the individual's employer, rather than use the individual as an
Affiliated Personnel, in which case the Table would not apply.
Consequently, only a Sponsoring Agency's choice to exceed the maximum
rates set forth in the Maximum Pay Rate Table would result in an
uncompensated expenditure, and the Table would not violate the
principle of cost neutrality.
A number of parties expressed concern that the Table was not
provided concurrently with the publishing of the Proposed Rule. We
chose not to delay the Proposed Rule until the Table could be
developed. We have inserted a new section 208.12, Maximum Pay Rate
Table, to establish the process for creating, updating and using the
Table. We are also publishing the Table as a Notice in the Federal
Register and are asking for comments on both the Interim Rule and the
Table before publishing the final rule.
One Sponsoring Agency expressed concern that the rates set forth in
the Table could not be used with respect to individuals employed by the
Sponsoring Agency, and not when the individual would serve on the Task
Force as Affiliated Personnel (e.g., a Sponsoring Agency fire
department dispatcher affiliated with the US&R Task Force in a non-
dispatcher role as a canine search specialist). Although the Table
would not necessarily apply to reimbursement for salary and benefits
for that individual, Sponsoring Agencies may use the rates in the Table
as a guide for establishing compensation levels for Affiliated
Personnel.
Affiliated Personnel. Several commenters noted that the rule can be
interpreted to preclude the reimbursement of Backfill expenses for
Affiliated Personnel under Sec. 208.39(g). Those commenters expressed
concern that, since the highly-trained civilians such as physicians,
structural engineers and canine handlers are typically Affiliated
Personnel, reimbursement for Backfill expenses is important to securing
the participation of these individuals in the System. The restriction
on Backfill costs for Affiliated Personnel could limit the ability of
Sponsoring Agencies to recruit and retain these highly trained
civilians.
However, the only permissible way to reimburse Affiliated Personnel
for Backfill costs is through Participating Agencies--neither we nor
the Sponsoring Agencies have contractual or employment relationships
with the individuals Backfilling the jobs of Affiliated Personnel. If
reimbursement for Backfill expenses is a problem for Affiliated
Personnel, we encourage them to have their employers or professional
association seek Participating Agency status. Participating Agency
status is available to private, for-profit organizations under the
revised definition of ``Participating Agency'' set forth in this
Interim Rule. (See Definitions, Sec. 208.2, Participating Agency, and
Sec. 208.12, Maximum Pay Rate Table.) Note, however, that compensation
costs, for the purposes of reimbursement and Backfill, refer to the
System Member's actual compensation, or the compensation of the
individual who Backfills a position (which includes salary and
benefits, as described in Sec. Sec. 208.39 and 208.40), rather than
billable or other rates that might be charged for services rendered to
commercial clients or patients.
Creating, Updating and Using the Maximum Pay Rate Table. We have
inserted a new section 208.12 in this rule to establish how we will
create, update and use the Table to reimburse Affiliated Personnel
(Task Force Physicians, Task Force Engineers, and Canine Handlers) and
Backfill for Activated System Members employed by or otherwise
associated with a for-profit Participating Agency; the Table applies
only to these named categories. Section 208.12 describes the method for
determining maximum pay rates using United States Office of Personnel
Management's (OPM) salary rates, and provides links to OPM's applicable
salary rate tables and locality pay tables.
The section provides that DHS will review and update the Table
periodically (at least annually). DHS is publishing the initial Table
in the Federal Register as a Notice with request for comments. DHS will
publish subsequent revisions to the Table as Notices in the Federal
Register.
The section further states that a Sponsoring Agency may choose to
pay Affiliated Personnel at a higher rate, but DHS will not reimburse
the increment above the maximum rate specified in the Table.
Resupply and Logistics Costs During a Federal Activation. One
Sponsoring Agency noted that, under Sec. 208.38, we will not reimburse
costs incurred for resupply and logistical support during Activation.
That section states that resupply and logistical support needed
[[Page 9188]]
during Activation are the responsibility of the Joint Management Team
(JMT). The Sponsoring Agency asked, ``What happens if the Incident
Management Team [now the JMT] cannot be established?'
During Activation, we are responsible for resupply and logistics.
Currently, we accomplish this responsibility through either the JMT,
which operates in the field, or the Emergency Support Function 9 (ESF-
9),\22\ which operates from the National Emergency Operations Center,
an emergency coordinating center located at FEMA headquarters. As DHS
develops and evolves, we may change the names or functions of these
teams; however, the responsibility for resupply and logistics will
remain with us. Task Forces should not engage in resupply or logistical
support during Activation unless coordinated through one of these
teams. In extraordinary circumstances, e.g., if the Task Force cannot
make contact with either the JMT or the EST, the Task Force should
follow the instructions in Sec. 208.44, Reimbursement for other costs.
Absent such circumstances, we will not reimburse costs incurred for
resupply and logistical support during Activation.
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\22\ ESF-9, or Emergency Support Function 9, Urban Search and
Rescue, is responsible to plan and coordinate the use of Urban
Search and Rescue assets following an event that requires locating,
extricating and providing immediate medical treatment of victims
trapped in collapsed structures. ESF-9 also provides planning and
coordination of US&R assets when they engage in other disaster-
related assignments.
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Compensation for Exempt System Members. Several agencies commented
on the proposed reimbursement for compensation paid to Exempt System
Members, i.e., System Members who are paid a salary, rather than an
hourly wage, and are otherwise exempt from the Fair Labor Standards
Act. One agency commented that reimbursement for Exempt System Members
should be based on the employees' salary, converted to a 40-hour
workweek and then paid at that rate on an hourly basis during
Activation. Another agency commented that the different methods of
compensation calculation for Exempt and non-exempt System Members will
result in non-exempt System Members receiving a greater amount of
compensation during Activation than Exempt System Members, who are
typically more experienced firefighters holding higher ranks in the
Sponsoring Agency or Participating Agency. This agency speculated that
the method of compensation calculation used in the Proposed Rule would
result in fewer chief officers (who are typically classified as Exempt
System Members) participating as System Members.
There are two guiding principles underlying our compensation
calculation rules: (1) Cost neutrality; and (2) customary and usual
practice. The compensation calculation system for Exempt System Members
complies with both of these principles. If an individual is classified
as an Exempt System Member in his or her regular position with the
Sponsoring Agency or Participating Agency, then this individual will
receive compensation on a daily basis, rather than an hourly basis,
regardless of the number of hours the individual works in a day. The
rule provides reimbursement to the Sponsoring Agency or Participant
Agency on this basis--that is, for the amount that the individual would
have customarily and usually received. If the Sponsoring Agency or
Participating Agency customarily and usually compensates Exempt System
Members by paying a salary and overtime, or customarily and usually
awards compensatory time or another overtime substitute for hours
worked above a predetermined threshold, then the Sponsoring Agency may
request reimbursement for the overtime amount, or the liquidated value
of the compensatory time or other overtime substitute, in accordance
with Sec. Sec. 208.39(e)(5)(ii) and (iii). In this way, this rule
abides by the principle of cost neutrality.
One Sponsoring Agency asked that we examine the feasibility of
giving Sponsoring Agencies the option of having chief officers
appointed as Disaster Assistance Employees (DAE) (temporary DHS
employees) during Activation. In that case, those officers would be
temporary Federal employees, would probably take a reduction in pay,
and would take vacation or administrative leave from the Sponsoring
Agency or Participating Agency for the period of Activation. In turn, a
DAE appointment might affect their pension and seniority rights. We
believe that disadvantages of DAE appointments outweigh any benefits
that chief officers might derive, and that the current language of this
rule concerning Exempt System Members represents the best general
practice.
One Sponsoring Agency asked whether, under Sec. 208.39(e)(3),
chiefs compensated based on a 56-hour workweek should be converted to a
40-hour workweek for purposes of calculating reimbursable compensation
under the rule. This Sponsoring Agency also noted that compensating
individuals who customarily and usually work a 56-hour workweek, by
converting their hourly wage rate to a 40-hour workweek, results in
approximately 40 percent higher costs during Activation. Sponsoring
Agencies and Participating Agencies that compensate employees based on
a 56-hour workweek take advantage of the partial overtime exemption set
forth in section 7(k) of the Fair Labor Standards Act. As explained
herein, we require that Sponsoring Agencies and Participating Agencies
disregard the section 7(k) partial exemption in calculating personnel
costs, and we will reimburse personnel costs based on a 40-hour work
week, as described in Sec. 208.39 of this rule.
One Sponsoring Agency notes that the calculation of reimbursable
personnel costs will place an extra burden on payroll staff, and there
will most likely be personnel who will be eligible for overtime
compensation immediately upon Activation since they have already
exceeded the overtime threshold for that week. We have included an
administrative allowance in the reimbursement for response costs, found
at Sec. 208.41, to compensate the Sponsoring Agency for this increased
burden on payroll staff. We also provide for reimbursement of any
additional salary and overtime costs in Sec. 208.39(f), e.g., those
incurred because a System Member is eligible for overtime compensation
immediately upon Activation.
Reimbursement for Personnel Costs for Equipment Cache
Rehabilitation. Under Sec. 208.43, we will reimburse Sponsoring
Agencies for personnel costs associated with equipment cache
rehabilitation up to the number of hours specified in the
Demobilization Order.\23\ One Sponsoring Agency stated that the number
of hours specified in the Demobilization Order should be an estimate
only, rather than a fixed limit, and asked whether there is an appeal
process for the number of hours specified in the Demobilization Order,
or another mechanism for requesting additional hours based on
unforeseen circumstances. There is no appeal process for the number of
hours specified in the Demobilization Order. However, if the Sponsoring
Agency feels that unforeseen circumstances will prevent it from
completing its equipment cache rehabilitation within the specified
number of hours, the Sponsoring Agency should follow the
[[Page 9189]]
procedures in Sec. 208.44 for reimbursement of other costs.
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\23\ A Demobilization Order is a DHS communication that
terminates an Alert or Activation and identifies cost and time
allowances for rehabilitation.
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Reimbursement for Other Costs. Section 208.44 sets a procedure for
Sponsoring Agencies to follow if the Sponsoring Agency or the Task
Force believes that it must incur an expense not included in subpart C
for which it expects to request reimbursement. Section 208.44 requires
that the Sponsoring Agency request in writing permission from DHS to
make the expenditure or, if advance permission in writing is not
possible to obtain, to meet three criteria before making the
expenditure, including requesting and receiving advance verbal
approval.
One agency commented that during an extreme emergency, in
particular during the initial 24- to 48-hours of an Activation, it can
be difficult to obtain written or verbal approvals, and that personnel
authorized to approve expenditures are not available 24 hours a day
during this period. Moreover, this agency commented that Joint
Management Teams, in the past, have left requests for resupply
unanswered for extended periods of time. The agency recommended that we
empower Task Force Leaders to make procurement decisions.
We feel that this comment addresses operational problems rather
than regulatory issues. Many of these problems will be alleviated by
the construction of the new DHS operations center that will be staffed
24 hours a day during an Activation, and by assuring that there is at
least one person on duty in the operations center who holds delegated
authority to authorize procurements. Moreover, the revised Equipment
Cache List \24\ provides for the purchase of multiple, back-up methods
of communication to assure that Task Forces can communicate with the
operations center under any circumstances. We believe that the rule
controls the costs associated with Activation and limits duplicative
procurement without compromising responder safety.
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\24\ The Equipment Cache List is the DHS-issued list that
defines: (a) The equipment and supplies that US&R will furnish to
Sponsoring Agencies; and (b) the maximum quantities and types of
equipment and supplies that a Sponsoring Agency may purchase and
maintain with DHS funds.
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Advance of Funds. Section 208.45 states that we will provide the
Sponsoring Agency with an advance of funds up to 75 percent of the
estimated personnel costs of the Activation. Several agencies commented
that we should increase this amount to 90 percent of the estimated
personnel costs. These agencies commented that since personnel costs of
an Activation can exceed $1 million, an advance up to 75 percent of
that amount still leaves the Sponsoring Agency with approximately
$250,000 in outlays for personnel costs for which it must wait for up
to 120 days or more for reimbursement. The financial burden of these
outlays would be compounded in the event of multiple Activations within
a relatively short time period.
We believe that up to 75 percent is the optimal amount for an
advance of funds because it balances the need for funds against the
possibility of overestimated funds. As one commenter pointed out, for
many years we did not provide any advance of funds, and for more recent
Activations we provided an advance equal to 25 percent of estimated
personnel costs. The amount ``up to 75 percent'' is a result of our
examination of personnel cost data from a number of previous
Activations. It also recognizes the financial burden borne by the
Sponsoring Agencies in carrying, even temporarily, these additional
salary costs. However, Activations often last for a shorter period of
time than we use to calculate the estimated personnel costs for the
Activation, as was the case recently with Hurricane Isabel when teams
were activated for fewer than 7 days. As one commenter pointed out,
some percentage of personnel costs may be questioned and ultimately
disallowed as a result of the reimbursement review process. For these
reasons, at this time, we believe that up to 75 percent of estimated
personnel costs is the best amount for an advance of funds. We expect
to review Sponsoring Agencies' experience periodically under this
provision, and will make revisions as warranted.
Deadline for Submission of Claims. One agency commented that the
deadline for submission of claims comes too soon after an Activation
has ended. Currently, Sec. 208.52 specifies that Sponsoring Agencies
must submit claims for reimbursement within 90 days of the conclusion
of the Activation. Section 208.52 also states that DHS may extend and
specify the time limitation upon a written request and justification
from the Sponsoring Agency. The commenting agency noted that it could
take many weeks to obtain certain items, often because of
manufacturers' inventory status. The agency stated that setting a
deadline of 120 days would obviate the need for a Sponsoring Agency to
apply for repeated extensions.
We believe that the 90-day timeframe for submission, with the
opportunity for Sponsoring Agencies to apply for 30-day extensions, is
the better policy. In the past, we found that Sponsoring Agencies often
do not submit claims for reimbursement in a timely manner. This
tendency interferes with our ability administratively to ``close out''
the accounts we set up for each major disaster or emergency, and also
results in Sponsoring Agencies carrying unreimbursed costs for longer
periods of time. We believe that it is better to require submission of
claims for reimbursement within 90 days of the conclusion of the
Activation, while permitting Sponsoring Agencies to apply for 30-day
extensions at their option.
Reevaluation and Potential Revision of the Rule. One agency
commented that we should provide a date certain for reevaluation and
potential revision of this rule. The agency believed that providing
this date certain was important because some provisions of the rule
will require additional discussion and development, and other issues
may arise after the rule is implemented. We do not believe that there
is a need to provide a date certain by which we will reevaluate and, if
necessary, revise the rule. However, we will work with our State and
Local Government partners through the National Urban Search and Rescue
System Advisory Committee and its Legal Issues Working Group to
evaluate this rule, measure its efficacy, and develop revisions as
necessary.
Task Force Leader. One Sponsoring Agency commented that this rule
should include a definition of the role and responsibilities of the
Task Force Leader, the highest leadership position on a US&R Task
Force. The commenting agency stated that ``[t]he Task Force Leader is
the individual during a deployment who is in control and responsible
for the entire Task Force, in addition to reporting to FEMA (whether
the FEMA Emergency Support Team (EST) or the IST [now JMT] the Task
Force Leader is the individual that the Sponsoring Agency designates to
represent the Sponsoring Agency both financially and legally while the
Task Force is deployed.''
We feel that the roles and responsibilities of the Task Force
Leader should not be included in the rule. We have developed and
published a Position Description for the Task Force Leader, and have
described the roles and responsibilities of the Task Force Leader in
several operational documents. These descriptions may change over time,
and we want to retain flexibility by including these descriptions in
operational documents rather than in the rule. Moreover, different
Sponsoring Agencies have vested their Task Force Leaders with
[[Page 9190]]
different levels of authority. For these reasons, we have not defined
the roles and responsibilities of the Task Force Leader in the rule.
Use of Federally Purchased Equipment for Local Use in Daily
Operations. One commenter noted that, in the Federalism Summary Impact
Statement included with the Proposed Rule, we stated that ``Equipment
and supplies purchased with Federal funds may be used to respond to
state disasters or emergencies.'' The commenter asked whether the
intent of the rule was to prevent the use of federally purchased
equipment for daily operations.
We intend the System to provide a Federal capability to respond to
major disasters or emergencies involving structural collapse, weapons
of mass destruction, or other incidents that the President declares. A
Sponsoring Agency may use equipment and supplies purchased with Federal
funds to respond to disasters or emergencies requiring urban search and
rescue response at the state and local level, and if necessary, to
repair or replace equipment so used at the Sponsoring Agency's expense.
However, we do not intend that Sponsoring Agencies use federally
purchased equipment in routine, day-to-day operations.
Indirect Costs. One Sponsoring Agency commented on our prohibition
of reimbursement for indirect costs related to response, and our 7.5
percent limitation on indirect costs related to preparedness. The
commenting agency noted that this limitation on indirect costs is
inconsistent with other FEMA programs and diverges from standard
Federal indirect cost percentages. The commenting agency stated that
this limitation could threaten the ability of that Sponsoring Agency to
remain in the System, stating that the ``work burden formulas
presuppose economies of scale for a larger, pre-existing agency.''
We brought this issue to the National US&R Advisory Committee,
which recommended retention of the indirect costs policy as in the
proposed rule. We agree. This limitation is not inconsistent with other
limitations applicable to FEMA programs. Accordingly, we have not
changed this section. Note that this limitation applies only to
Preparedness Cooperative Agreements, which apply over the course of at
least one year and to which indirect cost principles can be applied
readily. Except as provided in Sec. 208.41, we allow no indirect costs
under Response Cooperative Agreements. US&R deployments are most often
short-term, on the order of 10-14 days. Consistent with section 407 of
the Stafford Act, we will allow the administrative allowance listed in
Sec. 208.41 of this part in lieu of attempting to establish indirect
cost rates for short-term deployments.
Administrative Procedure Act Determination
We are publishing this Interim Rule under the Administrative
Procedure Act, 5 U.S.C. 553, with our request for public comments.
Concurrently with publication of the Interim Rule, we are publishing
the Maximum Pay Rate Table (Table) in the Federal Register as a Notice.
We published a Proposed Rule, National Urban Search and Rescue Response
System, on December 18, 2002, 67 FR 77627-77640, and received over 30
comments from various Task Forces in the National US&R Response System.
We discuss the comments in the preamble of the Interim Rule, indicating
where we agree with the comments and have made changes, and also where
we do not agree with the comments.
We did not have the Table prepared at the time we published the
Proposed Rule but received a large number of comments and questions
about the Table. To provide an opportunity for comment before
publishing the final rule, and because of the delay between the date of
the Proposed Rule and the Interim Rule, we request that interested
parties comment within 45 days of today's publication.
The National US&R Response System provides a number of public
services that are unique within the Federal Government. Members are
experienced and trained professionals highly skilled in the often
dangerous roles of searching for, extricating and providing initial
medical care for victims from collapsed buildings, whether collapsed by
natural or manmade causes. The searching is important to the public to
ensure that every effort has been made to rescue people still alive
within a collapsed structure. Members also have an important role in
finding the bodies of those killed in the collapse, so that victims
might be identified and returned to grieving families. The tasks
performed and the dangers inherent in the work benefit other
firefighters and disaster responders who do not have the specialized
training and experience of the National US&R Response System Members
and who are not put at risk by entering the collapsed structures when
US&R teams are present.
The Interim Rule is effective today, the date of publication. There
is an urgent need within the National US&R Response System to
standardize financial, administrative and operational functions among
the 28 Task Forces located in 19 States. These needs include codifying
the relationship between the Department of Homeland Security (DHS) and
the Sponsoring Agencies of the 28 Task Forces, and standardizing the
relationships of Sponsoring Agencies with their Participating Agencies
and Affiliated Personnel. Efforts to standardize the Memoranda of
Agreement between DHS and the Sponsoring Agencies, and in turn, the
agreements between the Sponsoring Agencies and Participating Agencies
and Affiliated Personnel, are essential to the effective functioning of
the System and must be completed soon to inform, guide and govern all
System participants uniformly in their respective roles,
responsibilities and activities.
In the years since September 11, 2001, Congress has appropriated
increased funds to US&R for equipment, training, and other measures to
ensure that each Task Force is fully staffed, trained and available for
whatever disaster they may be called upon for help. It is imperative
and urgent that there be full accountability for the funds granted to
the Sponsoring Agencies, and that there be uniform standards that the
Sponsoring Agencies can apply in the performance of their US&R
responsibilities. This rule provides those standards; it is urgent that
they be in effect as soon as possible.
The direct effect of this rule is on the 28 Sponsoring Agencies,
their Participating Agencies, and Affiliated Personnel--a relatively
small, well-defined universe. The Sponsoring Agencies, the Advisory
Committee of the National US&R Response System (Advisory
Committee),\25\ the Working Groups \26\ under the Advisory Committee,
and others associated with the National US&R Response System have
frequently and repeatedly requested publication and implementation of
this rule, which they urgently need to fulfill their obligations to the
System, themselves and their organizations. As matters of sound policy,
planning and management for the entire System, it is important to make
the rule effective upon publication.
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\25\ The Advisory Committee of the National US&R Response System
provides advice, recommendations, and counsel on the continuing
development and maintenance of a National US&R Response System to
the Under Secretary for Emergency Preparedness and Response.
\26\ The System has several specialized Working Groups, e.g.,
command and general staff, medical, legal issues, training, etc.,
that provide professional and technical advice on US&R issues to DHS
through the National Advisory Committee.
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Good cause exists and it is in the public interest to make this
Interim Rule
[[Page 9191]]
effective upon publication (and to request comments on the Interim Rule
and on the Table as published separately today as a Notice). DHS will
review and evaluate any comments that it receives and will publish the
final rule at a later date.
National Environmental Policy Act
44 CFR 10.8(d)(2)(ii) categorically excludes from actions such as
the preparation, revision, and adoption of regulations, and
specifically 44 CFR 10.8(d)(2)(xviii)(C), which relates to planning and
administrative activities in support of emergency and disaster response
and recovery, including deployment of urban search and rescue teams.
Accordingly, we have not prepared an environmental assessment or
environmental impact statement for this rule.
Executive Order 12866, Regulatory Planning and Review
Under Executive Order 12866, 58 FR 51735, October 4, 1993, a
``significant regulatory action'' is subject to OMB review and the
requirements of Executive Order 12866. Section 3(f) of the Executive
Order defines ``significant regulatory action'' as one that is likely
to result in a rule that may:
(1) Have an annual effect on the economy of $100 million or more,
or may adversely affect in a material way the economy, a sector of the
economy, productivity, competition, jobs, the environment, public
health or safety, or State, local or tribal governments or communities;
(2) Create a serious inconsistency or otherwise interfere with an
action taken or planned by another agency;
(3) Materially alter the budgetary impact of entitlements, grants,
user fees, or loan programs, or the rights and obligations of
recipients thereof; or
(4) Raise novel legal or policy issues arising out of legal
mandates, the President's priorities, or the principles set forth in
the Executive Order.
In determining whether to proceed with the formulation and
publication of this rule, we considered three alternatives: maintain
the status quo ante; manage the program through administrative
directives; and cancel the program.
Maintain the Status Quo Ante. The National US&R Response System has
operated since the early 1990s without formal regulations. The first
ten years or so were formative years with a great deal of flux. Federal
appropriations were minimal until the events following September 11,
2001, which led to major changes in planning, operations, management,
training and funding. Twenty US&R teams responded to the World Trade
Center and five responded to the Pentagon. After-action evaluations
showed the need for greater interoperability of equipment, consistency
in training and operating across the 28 teams, and many other factors
to permit 28 disparate units in 19 States to perform as a cohesive
whole. Congress appropriated larger sums to support the program,
mandating that the program not add new task forces until existing task
forces were fully equipped and trained. Spurred by the response of
Congress and the Administration, we redoubled efforts to standardize
the financing, administration and operation of the National US&R
Response System.
Under the status quo ante and the low level of Federal funding, we
had little leverage to standardize the program. With increased
appropriations and expanding mission that followed September 11, 2001
(e.g., response to acts of terrorism and weapons of mass destruction
events, response to hurricanes), operating without formal regulations
was no longer tenable. Sound management and responsible stewardship of
the program demand formal regulations. For these reasons, we rejected
the status quo ante.
Management by Administrative Directives. We rejected this
alternative on grounds that administrative directives do not have the
force of law, tend to be piecemeal, and do not adequately support our
need for standardized practices within the US&R program. In contrast,
the rule will have the force of law and will concisely support our need
to standardize the financing, administration and operation of the US&R
program.
Cancel the Program. The US&R program grew out of the evident need
to have highly skilled, specially trained and equipped personnel
swiftly available to search for and extricate victims from collapsed
buildings, whether from earthquakes and other natural causes, acts of
terrorism, accidents or other human causes. The need is greater today
than perceived in the late 1980s and early 1990s. The program has
garnered a well- and hard-earned recognition of its effectiveness, with
strong support from Congress, the Administration, and its Sponsoring
and Participating Agencies. With that continuing support, cancellation
of the program is not a feasible alternative.
Interim Rule. We (FEMA) published a Proposed Rule, National Urban
Search and Rescue Response System, on December 18, 2002, 67 FR 77627-
77640. During the 45-day comment period, we received about 30 comments
from Sponsoring Agencies, one from a Participating Agency, one from a
Member of Congress, and none from the public at large. We reviewed the
comments, accepting some, rejecting some. This preamble and Interim
Rule reflect the decisions made regarding the comments that we
received.
When we published the Proposed Rule, we mentioned, but had not yet
prepared, the Maximum Pay Rate Table (Table). In order to have that
part of the rule on which we had received comments go into effect, and
to obtain public comments on the Table, we elected to publish the rule
as an Interim Rule, and, concurrently to publish the Table as a Notice,
with request for comments.
Economic Significance of the Rule. This rule will not have an
annual effect on the economy of $100 million or more and is not an
economically significant rule under Executive Order 12866. The rule
establishes the relationship between the Sponsoring Agencies of the
Urban Search & Rescue (US&R) Task Forces and DHS, funding for
preparedness and response activities, including the acquisition of
equipment and supplies and training, and the eligibility of Task Forces
to receive and maintain Federal excess property.
This interim rule impacts 28 Sponsoring Agencies, 26 of which are
from local communities, 2 are associated with state universities. All
of the communities have populations greater than 50,000. Most of the
Sponsoring Agencies have agreements with Participating Agencies for
additional support to meet the staffing, equipment and training
requirements of the National US&R Response System. US&R-related costs
of Participating Agencies are paid by DHS through the Sponsoring
Agencies. Similarly, expenses of Affiliated Personnel are reimbursed
through the Sponsoring Agencies.
DHS has designed the National US&R Response System to be as cost
neutral to Sponsoring Agencies as Federal law authorizes. DHS acquires
equipment and supplies, pays for training, meetings and related travel,
lodging, and per diem expenses, and attempts to cover Sponsoring
Agencies' preparedness costs through preparedness Cooperative
Agreements. When DHS activates a US&R Task Force we reimburse the
Sponsoring Agency for 100 per cent of its direct eligible costs
incurred, including overtime and Backfill costs, and indirect costs
capped at 7.5 percent of direct costs, under the terms of the response
Cooperative Agreements. Sponsoring Agencies will incur certain
paperwork burdens and expenses, which are described and quantified
[[Page 9192]]
below in the materials on the Paperwork Reduction Act. We expect that
our Cooperative Agreements and their associated indirect cost rates
will cover the eligible costs that the Sponsoring Agencies incur to
participate in the National US&R Response System.
Costs to DHS to administer the National US&R Response System
include the salaries and expenses of an 8-person staff, and the
indirect staff costs for financial, acquisition, logistics and other
administrative services provided by DHS and FEMA. Current
appropriations limit administrative costs to 3 percent of the total
amount appropriated for US&R.
FEMA's planning and program guidance for fiscal years 2005 through
2009 set funding levels of $6.438 million for the National US&R
Response System, representing the baseline nondisaster-specific budget
for operating expenses. In the past two years, congressional annual
appropriations for US&R were $60 million, most of which US&R passed to
the Sponsoring Agencies pursuant to Cooperative Agreements. FEMA passes
the amounts appropriated to the Sponsoring Agencies in preparedness
Cooperative Agreements funded 100 percent by the Federal Government to
cover planning, training, equipment or other essentials to fulfill the
US&R mission, which do not impose conditions on the Sponsoring Agencies
making them economically significant. Nor would Cooperative Agreement
funding adversely affect in a material way the economy, a sector of the
economy, productivity, competition, jobs, the environment, public
health or safety, or State, local or tribal governments or communities.
This rule is a significant regulatory action, but not an
economically significant regulatory action within the definition of
section 3(f) of Executive Order 12866, and it adheres to the principles
of regulation of the Executive Order. The Office of Management and
Budget has reviewed this rule under the provisions of the Executive
Order.
Regulatory Flexibility Act, 5 U.S.C. 601
Under the Regulatory Flexibility Act, agencies must consider the
impact of their rulemakings on ``small entities'' (small businesses,
small organizations and local governments). The Act also provides that,
if a regulatory flexibility analysis is not required, the agency must
certify in the rulemaking document that the rulemaking will not ``have
a significant economic impact on a substantial number of small
entities.''
This rule standardizes the financing, administration and operation
of the National Urban Search and Rescue Response System (System or
US&R), which FEMA established under the Robert T. Stafford Disaster
Relief and Emergency Assistance Act. The System currently comprises 28
US&R Task Forces in 19 States. A State agency or local public safety
agency (Sponsoring Agency) typically sponsors a Task Force,\27\ staffed
primarily by local fire department and emergency services personnel,
and include Joint Management Teams (JMT) and other overhead or
technical teams. None of the Sponsoring Agencies are in communities
with populations fewer than 50,000. The governments of the Sponsoring
Agencies are urban or State instrumentalities and none qualify as a
``small governmental jurisdiction'' within the meaning of 5 U.S.C.
601(5).
---------------------------------------------------------------------------
\27\ The Task Forces also respond to disasters and emergencies
in their home states as State resources. DHS does not directly
reimburse Sponsoring Agencies of the Task Forces for the costs that
they incur when deploying in their home state, although in a State
deployment Task Forces may use equipment that they have purchased
with DHS grant funds and Federal property that is in their custody.
Subpart C of this rule does not cover in-state deployment of US&R
resources. However, Federal reimbursement for the cost of an in-
state deployment may be available through DHS's Public Assistance
Program under regulations published at 44 CFR part 206. In addition,
the Office of Foreign Disaster Assistance of the U.S. Agency for
International Development (USAID) often uses the services of certain
US&R Task Forces to deliver humanitarian assistance abroad under
agreements to which DHS is not a party. The rule does not affect the
relationships between USAID and the Sponsoring Agencies of the Task
Forces.
---------------------------------------------------------------------------
Some of the Participating Agencies are small businesses, such as
engineering firms and HMOs. DHS reimburses Sponsoring Agencies for the
eligible costs that the Sponsoring Agencies incur in reimbursing their
Participating Agencies. DHS expects Participating Agencies to receive
full reimbursement for the salaries and expenses of their personnel who
are participating System Members, indirect costs up to 7.5 percent, per
diem, travel and related costs when Task Forces activated, and backfill
expenses.
DHS has designed the US&R program to be as cost neutral to
Sponsoring Agencies as Federal law authorizes. When DHS activates a
US&R Task Force it reimburses the Sponsoring Agency for its direct
costs incurred, including overtime and Backfill costs, and indirect
costs capped at 7.5 percent of direct costs. Upon activation, System
Members become Temporary Excepted Federal Volunteers entitled to the
benefits of the Federal Employees Compensation Act (FECA) and the
Federal Tort Claims Act (FTCA). In some instances, State workers'
compensation benefits exceed those available under FECA, and the
difference between the State benefits and the Federal benefits may have
to be borne by the Sponsoring Agency.
US&R Task Forces also must maintain minimum training requirements
that DHS prescribes. Under current interpretations by the Department of
Justice, the FTCA covers System Members during Task Force activations,
but does not apply to training activities. This lack of FTCA coverage
during training is a potential liability that a Sponsoring Agency might
incur, but such a circumstance has not occurred in 15 years of
experience. DHS is working with the Department of Justice to determine
what measures DHS could take to provide liability coverage for System
Members during US&R training events.
DHS assumes that the professional skills necessary for preparation
of the reports and records are within the capabilities of the
Sponsoring and Participating Agencies. DHA further assumes that
Sponsoring and Participating Agencies incur no extra, unreimbursed
costs for sound administration and accountability that Federal
Cooperative Agreements require of any recipient of such awards. We have
no basis for estimating the expected cost or range of costs per
impacted Sponsoring or Participating Agency.
DHS is not aware of any rules that may duplicate, overlap or
conflict with this rule. In our discussion of E.O. 12866 above, we
considered several alternatives to this rule, including status quo
ante, cancellation of the program, management by program directives,
and this interim rule. None of the alternatives to this rule met DHS
needs to standardize the financing, administration and operation of the
US&R System; none provided differing compliance or reporting
requirements, or clarified, consolidated, or simplified compliance and
reporting, or exempted any of the Sponsoring Agencies from coverage of
the rule.
For the reasons stated, we certify under 5 U.S.C. 605(b) that this
Interim Rule will not have a significant economic impact on a
substantial number of small entities and does not apply to this interim
rule.
Paperwork Reduction Act of 1995
DHS has determined that the implementation of this rule is subject
to the Paperwork Reduction Act of 1995, 44 U.S.C. 3501-3520. As the
Paperwork Reduction Act of 1995 requires and, concurrently with this
rule, we have submitted a request for Office of Management and Budget
(OMB) review and approval of a new collection of
[[Page 9193]]
information, which is contained in this rule. The collection of
information complies with provisions of the Paperwork Reduction Act of
1995, 44 U.S.C. 3506(c)(2)(A). We invite the general public to comment
on the collection of information.
Collection of Information
Title: Urban Search and Rescue Program.
US&R grant application forms approved by OMB under Control Number
1660-0025, which expires July 31, 2007, are:
Form Numbers: SF 424, Application for Federal Assistance; DHS Form
20-10, Financial Status Report; DHS Form 20-16, Summary Sheet for
Assurances and Certifications; DHS Form 20-16A, Assurances--Non-
Construction Programs; DHS Form 20-16C, Certifications Regarding
Lobbying; Debarment, Suspension and Other Responsibility Matters; and
Drug-Free Workplace Requirements; DHS Form 20-20, Budget Information--
Non-Construction Programs; and SF LLL, Disclosure of Lobbying
Activities.
Abstract: This information collection is to implement the National
Urban Search and Rescue System (US&R), by which DHS provides
specialized lifesaving assistance during major disaster or emergency.
US&R operational activities include locating, extricating and providing
on-site medical treatment to victims trapped in collapsed structures,
weapons of mass destruction events, and when assigned, incident command
or coordination of other operational activities. In order to implement
the US&R program DHS must collect certain types of information,
including grant applications, budget and budget narrative, financial
status reports, assurances and certifications, performance information,
and requests for advances or reimbursement on forms approved by OMB
under Control Number 1660-0025.
Affected Public: State, local and Indian tribal governments.
Estimated Total Annual Burden Hours: 803 hours. A breakdown of the
burden follows:
----------------------------------------------------------------------------------------------------------------
No. of Frequency
DHS forms responders of response Hours per response and Annual burden hours (A
(A) (B) recordkeeping (C) x B x C)
----------------------------------------------------------------------------------------------------------------
The following forms were approved
under 1660-0025:
SF-424 Application for Federal 28 1 1 hour................. 28 hours.
Assistance.
DHS Form 20-10 Financial Status 28 1 1 hour................. 28 hours.
Report.
DHS Forms 20-16, 20-16A, 20-16C, 28 1 30 minutes............. 14 hours.
Summary Sheet for Assurances and
Certifications.
SF LLL, Disclosure of Lobbying 28 1 10 minutes............. 5 hours.
Activities.
DHS Form 20-20, Budget Information 28 2 9 hours................ 504 hours.
Non-Construction Programs and
Budget Narrative.
SF 270, Request for Advance or 28 2 4 hours................ 224 hours.
Reimbursement.
--------------
Subtotal...................... ........... 224 ....................... 803 hours.
----------------------------------------------------------------------------------------------------------------
OMB Number: New.
Abstract: In order to implement the US&R program, DHS must collect
certain types of information not included in OMB Control Number 1660-
0025, including memoranda of agreement, program narrative statements,
grant awards, progress reports, extension or change requests, closeout
information and audits.
Affected Public: State, local and Indian tribal governments.
Estimated Total Annual Burden Hours: 1181 hours. A breakdown of the
burden follows:
----------------------------------------------------------------------------------------------------------------
No. of Frequency
DHS forms responders of response Hours per response and Annual burden hours
(A) (B) recordkeeping (C) (A x B x C)
----------------------------------------------------------------------------------------------------------------
The following are new collections:
Narrative Statement............... 28 2 4 hours................ 224 hours.
Progress Reports.................. 28 2 2 hours................ 112 hours.
Extension or Change Requests...... 5 1 1 hour................. 5 hours.
Audits of States, Local 28 1 30 hours............... 840 hours.
Governments, and Non-Profit
Organizations.
Memoranda of Agreement............ 28 1 (\1\).................. 8
--------------
Subtotal...................... ........... 145 ....................... 1181 hours.
=====================================--------------
Total hours................... ........... 369 ....................... 1984 hours.
----------------------------------------------------------------------------------------------------------------
\1\ After we publish the final rule, we will prepare a standardized, streamlined memorandum of agreement in
consultation with the National US&R Response System Advisory Committee and its Legal Issues Working Group.
When completed, we will make a second Paperwork Reduction Act submission to OMB.
Estimated Times and Costs: The approximate annual salary of State
and local staff who will complete the forms is $35,000. The approximate
hourly rate of pay is $18.90 ($35,000 divided by 1850 hours). The total
cost to grantees is estimated to be $37,498.
The cost to DHS is largely personnel salary costs to review and
analyze the information collected on these forms--for all DHS grant
programs, not just US&R grants, which is a significant portion of
grants management annual work. We estimate that for the US&R program,
DHS Headquarters would expend approximately 672 hours on analysis, or
an average of 24 hours per program. We estimate the cost to DHS to be
$14,112 (672 hours times $21 per hour of staff work). Printing costs
are minimal because the forms are available in electronic format.
[[Page 9194]]
The total annual estimated time and costs are 1984 hours and
$37,498 cost to applicants and $14,112 cost to DHS. This calculation is
based on the number of burden hours for each type of information
collection/form, as indicated above, and the estimated wage rates for
those individuals responsible for collecting the information or
completing the forms. The new collection is required for sound grants
management and compliance with OMB Circulars and DHS regulations.
FOR FURTHER INFORMATION CONTACT: Contact Michael Tamillow, Emergency
Preparedness and Response Directorate, Department of Homeland Security,
500 C Street, SW., Washington, DC 20472, telephone (202) 646-2549,
facsimile (202) 646-4684, or e-mail mike.tamillow@dhs.gov for
additional information. You may contact Muriel B. Anderson for copies
of the proposed collection of information at (202) 646-2625 or
(facsimile) (202) 646-3347, or e-mail informationcollections@dhs.gov.
Executive Order 13132 Federalism--Federalism Summary Impact Statement
Executive Order 13132 requires DHS to develop a process to ensure
``meaningful and timely input by State and local officials in the
development of regulatory policies that have federalism implications.''
Such policies are defined in the Executive Order to include rules that
have ``substantial direct effects on the States, on the relationship
between the national government and the States, or on the distribution
of power and responsibilities among the various levels of government.''
We have analyzed this interim rule in accordance with the
principles and criteria in the Executive Order and has determined that
this interim rule would not have a substantial direct effect on the
States, on the relationship between the national government and the
States, or on the distribution of power and responsibilities among the
various levels of government. The rule imposes no mandates on State or
local governments; participation in the National US&R Response System
is strictly voluntary. Moreover, one of the most significant objectives
of this program is to build State and local US&R capability. The US&R
program recognizes the primary role of State and local governments in
responding to disasters and emergencies. Equipment and supplies
purchased with Federal funds may be used to respond to in-state
disasters and emergencies. The teams may only be deployed across State
lines when released by their home State. The assistance these teams
provide, like other assistance under the Stafford Act, is only
furnished when disaster or emergency needs exceed the combined State
and local capabilities and the Governor requests the assistance.
Therefore, we certify that this interim rule does not have federalism
implications as defined in Executive Order 13132.
While this interim rule does not have federalism implications, this
rule has been developed through a collaborative process with
representatives of State and local governments. As noted above, the
Legal Issues Working Group, a subgroup of the National US&R Response
System Advisory Committee, developed the original draft of these
regulations. The National US&R Response System presented a draft to
DHS. The Legal Issues Working Group and the National US&R Response
System Advisory Committee both comprised Federal, State and Local
Government officials, as well as representatives of labor
organizations, some of whose members serve on the US&R Task Forces.
Congressional Review of Agency Rulemaking
We have sent this final rule to the Congress and to the General
Accounting Office under the Congressional Review of Agency Rulemaking
Act, Pub. L. 104-121. The rule is not a ``major rule'' within the
meaning of that Act. It standardizes the financing, administration and
operation of the National Urban Search and Rescue Response System, a
cooperative effort of the Department of Homeland Security,
participating State emergency management agencies and local public
safety agencies across the country.
The rule will not result in a major increase in costs or prices for
consumers, individual industries, Federal, State, or local government
agencies, or geographic regions. It will not have ``significant adverse
effects'' on competition, employment, investment, productivity,
innovation, or on the ability of United States-based enterprises to
compete with foreign-based enterprises. This rule is subject to the
information collection requirements of the Paperwork Reduction Act and
OMB has assigned Control No. 1660-0025. The rule is not an unfunded
Federal mandate within the meaning of the Unfunded Mandates Reform Act
of 1995, Pub. L. 104-4, and any enforceable duties that we impose are a
condition of Federal assistance or a duty arising from participation in
a voluntary Federal program.
List of Subjects in 44 CFR Part 208
Disaster assistance, Grant programs.
0
Accordingly, we add part 208 to title 44, chapter I of the Code of
Federal Regulations, as follows:
PART 208--NATIONAL URBAN SEARCH AND RESCUE RESPONSE SYSTEM
Subpart A--General
Sec.
208.1 Purpose and scope of this part.
208.2 Definitions of terms used in this part.
208.3 Authority for the National US&R Response System.
208.4 Purpose for System.
208.5 Authority of the Director of the Response Division (Director).
208.6 System resource reports.
208.7 Enforcement.
208.8 Code of conduct.
208.9 Agreements between Sponsoring Agencies and Participating
Agencies.
208.10 Other regulations.
208.11 Federal status of System Members.
208.12 Maximum Pay Rate Table.
208.13-208.20 [Reserved]
Subpart B--Preparedness Cooperative Agreements
208.21 Purpose.
208.22 Preparedness Cooperative Agreement process.
208.23 Allowable costs under Preparedness Cooperative Agreements.
208.24 Purchase and maintenance of items not listed on Equipment
Cache List.
208.25 Obsolete equipment.
208.26 Accountability for use of funds.
208.27 Title to equipment.
208.28-208.30 [Reserved].
Subpart C--Response Cooperative Agreements
208.31 Purpose.
208.32 Definitions of terms used in this subpart.
208.33 Allowable costs.
208.34 Agreements between Sponsoring Agencies and others.
208.35 Reimbursement for Advisory.
208.36 Reimbursement for Alert.
208.37 Reimbursement for equipment and supply costs incurred during
Activation.
208.38 Reimbursement for re-supply and logistics costs incurred
during Activation.
208.39 Reimbursement for personnel costs incurred during Activation.
208.40 Reimbursement of fringe benefit costs during Activation.
208.41 Administrative allowance.
208.42 Reimbursement for other administrative costs.
208.43 Rehabilitation.
208.44 Reimbursement for other costs.
208.45 Advance of funds.
208.46 Title to equipment.
208.47-208.50 [Reserved]
Subpart D--Reimbursement Claims and Appeals
208.51 General.
208.52 Reimbursement procedures.
[[Page 9195]]
208.53-208.59 [Reserved]
208.60 Determination of claims.
208.61 Payment of claims.
208.62 Appeals.
208.63 Request by DHS for supplemental information.
208.64 Administrative and audit requirements.
208.65 Mode of transmission.
208.66 Reopening of claims for retrospective or retroactive
adjustment of costs.
208.67-208.70 [Reserved]
Authority: Robert T. Stafford Disaster Relief and Emergency
Assistance Act, 42 U.S.C. 5121 through 5206; Reorganization Plan No.
3 of 1978, 43 FR 41943, 3 CFR, 1978 Comp., p. 329; Homeland Security
Act of 2002, 6 U.S.C. 101; E.O. 12127, 44 FR 19367, 3 CFR, 1979
Comp., p. 376; E.O. 12148, 44 FR 43239, 3 CFR, 1979 Comp., p. 412;
E.O. 13286, 68 FR 10619, 3 CFR, 2003 Comp., p. 166.
Subpart A--General
Sec. 208.1 Purpose and scope of this part.
(a) Purpose. The purpose of this part is to prescribe policies and
procedures pertaining to the Department of Homeland Security's (DHS)
National Urban Search and Rescue Response System.
(b) Scope. This part applies to Sponsoring Agencies and other
participants in the National Urban Search and Rescue Response System
that have executed agreements governed by this part. Part 206 of this
chapter does not apply to activities undertaken under this part, except
as provided in Sec. Sec. 208.5 and 208.10 of this part. This part does
not apply to reimbursement under part 206, subpart H, of this chapter.
Sec. 208.2 Definitions of terms used in this part.
(a) General. Any capitalized word in this part is a defined term
unless such capitalization results from the application of standard
capitalization or style rules for Federal regulations. The following
definitions have general applicability throughout this part:
Activated or Activation means the status of a System resource
placed at the direction, control and funding of DHS in response to, or
in anticipation of, a presidential declaration of a major disaster or
emergency under the Stafford Act.
Activation Order means the DHS communication placing a System
resource under the direction, control, and funding of DHS.
Advisory means a DHS communication to System resources indicating
that an event has occurred or DHS anticipates will occur that may
require Alert or Activation of System resources.
Alert means the status of a System resource's readiness when
triggered by an Alert Order indicating that DHS may Activate the System
resource.
Alert Order means the DHS communication that places a System
resource on Alert status.
Assistance Officer means the DHS employee who has legal authority
to bind DHS by awarding and amending Cooperative Agreements.
Backfill means the personnel practice of temporarily replacing a
person in his or her usual position with another person.
Cooperating Agency means a State or Local Government that has
executed a Cooperative Agreement to provide Technical Specialists.
Cooperative Agreement means a legal instrument between DHS and a
Sponsoring Agency or Cooperating Agency that provides funds to
accomplish a public purpose and anticipates substantial Federal
involvement during the performance of the contemplated activity.
Daily Cost Estimate means a Sponsoring Agency's estimate of Task
Force personnel compensation, itemized fringe benefit rates and amounts
including calculations, and Backfill expenditures for a 24-hour period
of Activation.
Deputy Director means the Deputy Director of the Response Division,
Emergency Preparedness and Response Directorate, Department of Homeland
Security, or other person that the Director designates.
DHS means the Department of Homeland Security.
Director means the Director of the Response Division, Emergency
Preparedness and Response Directorate, DHS.
Disaster Search Canine Team means a disaster search canine and
handler who have successfully completed the written examination and
demonstrated the performance skills required by the Disaster Search
Canine Readiness Evaluation Process. A disaster search canine is a dog
that has successfully completed the DHS Disaster Search Canine
Readiness Evaluation criteria for Type II or both Type II and Type I.
Emergency means any occasion or instance for which, in the
determination of the President, Federal assistance is needed to
supplement State and local efforts and capabilities to save lives and
to protect property and public health and safety, or to lessen or avert
the threat of a catastrophe in any part of the United States.
Equipment Cache List means the DHS-issued list that defines:
(1) The equipment and supplies that US&R will furnish to Sponsoring
Agencies; and
(2) The maximum quantities and types of equipment and supplies that
a Sponsoring Agency may purchase and maintain with DHS funds.
Federal Excess Property means any Federal personal property under
the control of a Federal agency that the agency head or a designee
determines is not required for its needs or for the discharge of its
responsibilities.
Federal Response Plan means the signed agreement among various
Federal departments and agencies that provides a mechanism for
coordinating delivery of Federal assistance and resources to augment
efforts of State and Local Governments overwhelmed by a Major Disaster
or Emergency, supports implementation of the Stafford Act, as well as
individual agency statutory authorities, and supplements other Federal
emergency operations plans developed to address specific hazards.
Joint Management Team or JMT means a multi-disciplinary group of
National Disaster Medical System (NDMS), Urban Search and Rescue
(US&R), and other specialists combined to provide operations, planning,
logistics, finance and administrative support for US&R and NDMS
resources, and to provide technical advice and assistance to States and
Local Governments.
Local Government means any county, city, village, town, district,
or other political subdivision of any State; any federally recognized
Indian tribe or authorized tribal organization; and any Alaska Native
village or organization.
Major Disaster means any natural catastrophe (including any
hurricane, tornado, storm, high water, wind driven water, tidal wave,
tsunami, earthquake, volcanic eruption, landslide, mudslide, snowstorm,
or drought), or regardless of cause, any fire, flood, or explosion, in
any part of the United States, that in the determination of the
President, causes damage of sufficient severity and magnitude to
warrant major disaster assistance under the Stafford Act to supplement
the efforts and available resources of States, Local Governments, and
disaster relief organizations in alleviating the damage, loss,
hardship, or suffering caused thereby.
Memorandum of Agreement (MOA) means the document signed by DHS, a
Sponsoring Agency and its State that describes the relationship of the
parties with respect to the National Urban Search & Rescue Response
System.
Participating Agency means a State or Local Government, non-profit
organization, or private organization
[[Page 9196]]
that has executed an agreement with a Sponsoring Agency to participate
in the National US&R Response System.
Personnel Rehabilitation Period means the period allowed by DHS for
a person's rehabilitation to normal conditions of living following an
Activation.
Preparedness Cooperative Agreement means the agreement between DHS
and a Sponsoring Agency for reimbursement of allowable expenditures
incurred by the Sponsoring Agency to develop and maintain System
capabilities and operational readiness.
Program Directive means guidance and direction for action to ensure
consistency and standardization across the National US&R Response
System.
Program Manager means the individual, or his or her designee,
within DHS who is responsible for day-to-day administration of the
National US&R Response System.
Program Office means the organizational entity within DHS that is
responsible for day-to-day administration of the National US&R Response
System.
Response Cooperative Agreement means an agreement between DHS and a
Sponsoring Agency for reimbursement of allowable expenditures incurred
by the Sponsoring Agency as a result of an Alert or Activation.
Sponsoring Agency means a State or Local Government that has
executed an MOA with DHS to organize and administer a Task Force.
Stafford Act means the Robert T. Stafford Disaster Relief and
Emergency Assistance Act, 42 U.S.C. 5121 through 5206.
State means any State of the United States, the District of
Columbia, Puerto Rico, the Virgin Islands, Guam, American Samoa, the
Commonwealth of the Northern Mariana Islands, the Federated States of
Micronesia or the Republic of the Marshall Islands.
Support Specialist means a person participating in the System who
assists the Task Force with administrative or other support during
mobilization, ground transportation and demobilization as directed.
System or National US&R Response System means the national US&R
response capability administered by DHS.
System Member means any Task Force Member, JMT Member, Technical
Specialist, Support Specialist or Disaster Search Canine Team.
Task Force means an integrated US&R organization of multi-
disciplinary resources with common communications and a leader,
organized and administered by a Sponsoring Agency and meeting DHS
standards.
Task Force Member means a person occupying a position on a Task
Force.
Technical Specialist means a person participating in the System
contributing technical knowledge and skill who may be placed on Alert
or Activated as a single resource and not as a part of a JMT or a Task
Force.
US&R means urban search and rescue, the process of searching for,
extricating, and providing for the immediate medical stabilization of
victims who are entrapped in collapsed structures.
(b) Additional definitions. Definitions for certain terms that
apply only to individual subparts of this part are located in those
subparts.
Sec. 208.3 Authority for the National US&R Response System.
(a) Enabling legislation. The Federal Emergency Management Agency
established and operated the System under the authority of Sec. Sec.
303, 306(a), 306(b), 403(a)(3)(B) and 621(c) of the Stafford Act, 42
U.S.C. 5144, 5149(a), 5149(b), 5170b(a)(3)(B) and 5197(c),
respectively. Section 503 of the Homeland Security Act of 2002, 6
U.S.C. 313, transferred the functions of the Director of FEMA to the
Secretary of Homeland Security. The President redelegated to the
Secretary of Homeland Security in Executive Order 13286 those
authorities of the President under the Stafford Act that had been
delegated previously to the Director of FEMA under Executive Order
12148.
(b) Implementing plan. The National Response Plan identifies DHS as
the primary Federal agency with responsibility for Emergency Support
Function 9, Urban Search and Rescue.
Sec. 208.4 Purpose for System.
It is DHS policy to develop and provide a national system of
standardized US&R resources to respond to Emergencies and Major
Disasters that are beyond the capabilities of affected State and Local
Governments.
Sec. 208.5 Authority of the Director of the Response Division
(Director).
(a) Participation in activities of the System. The Director is
responsible for determining participation in the System and any
activity thereof, including but not limited to whether a System
resource is operationally ready for Activation.
(b) Standards for and measurement of System efficiency and
effectiveness. In addition to the authority provided in Sec. 206.13 of
this chapter, the Director may establish performance standards and
assess the efficiency and effectiveness of System resources.
Sec. 208.6 System resource reports.
(a) Reports to Director. The Director may request reports from any
System resource relating to its activities as part of the System.
(b) Reports to FEMA Regional Directors. Any FEMA Regional Director
may request through the Director reports from any System resource used
within or based within the Regional Director's jurisdiction.
(c) Audits, investigations, studies and evaluations. DHS and the
General Accounting Office may conduct audits, investigations, studies,
and evaluations as necessary. Sponsoring Agencies, Participating
Agencies and System Members are expected to cooperate fully in such
audits, investigations, studies and evaluations.
Sec. 208.7 Enforcement.
(a) Remedies for noncompliance. In accordance with the provisions
of 44 CFR 13.43, if a Sponsoring Agency, Participating Agency,
Affiliated Personnel or other System Member materially fails to comply
with a term of a Cooperative Agreement, Memorandum of Agreement, System
directive or other Program Directive, the Director may take one or more
of the actions provided in 44 CFR 13.43(a)(1) through (5). Any such
enforcement action taken by the Director will be subject to the
hearings, appeals, and effects of suspension and termination provisions
of 44 CFR 13.43(b) and (c).
(b) The enforcement remedies identified in this section, including
suspension and termination, do not preclude a Sponsoring Agency,
Participating Agency, Affiliated Personnel or other System Member from
being subject to ``Debarment and Suspension'' under E.O. 12549, as
amended, in accordance with 44 CFR 13.43(d).
(c) Other authority for sanctions. Nothing in this section limits
or precludes the application of other authority to impose civil or
criminal sanctions, including 42 U.S.C. 5156.
Sec. 208.8 Code of conduct.
The Director will develop and implement a code of conduct for
System Members acting under DHS's direction and control. Nothing in
this section or the DHS code of conduct will limit the authority of a
Sponsoring Agency, Participating Agency or Cooperating Agency to apply
its own code of conduct to its System Members or employees. If the DHS
code is more restrictive, it controls.
[[Page 9197]]
Sec. 208.9 Agreements between Sponsoring Agencies and Participating
Agencies.
Every agreement between a Sponsoring Agency and a Participating
Agency regarding the System must include a provision making this part
applicable to the Participating Agency and its employees who engage in
System activities.
Sec. 208.10 Other regulations.
The following provisions of title 44 CFR, Chapter I also apply to
the program in this part:
(a) Section 206.9, which deals with the non-liability of DHS in
certain circumstances.
(b) Section 206.11, which prescribes nondiscrimination in the
provision of disaster assistance.
(c) Section 206.14, which deals with criminal and civil penalties.
(d) Section 206.15, which permits recovery of assistance by DHS.
Sec. 208.11 Federal status of System Members.
The Director will appoint all Activated System Members as temporary
excepted Federal volunteers. The Director may appoint a System Member
who participates in Alert activities as such a Federal volunteer. The
Director may also appoint each System Member who participates in DHS-
sanctioned preparedness activities as a temporary excepted Federal
volunteer. DHS intends these appointments to secure protection for such
volunteers under the Federal Employees Compensation Act and the Federal
Tort Claims Act and do not intend to interfere with any preexisting
employment relationship between a System Member and a Sponsoring
Agency, Cooperating Agency or Participating Agency. System Members whom
DHS appoints as temporary excepted Federal volunteers will not receive
any compensation or employee benefit directly from the United States of
America for their service, but will be compensated through their
Sponsoring Agency.
Sec. 208.12 Maximum Pay Rate Table.
(a) Purpose. This section establishes the process for creating and
updating the Maximum Pay Rate Table (Table), and the Table's use to
reimburse Affiliated Personnel (Task Force Physicians, Task Force
Engineers, and Canine Handlers) and Backfill for Activated System
Members employed by or otherwise associated with a for-profit
Participating Agency. Section 208.32 defines the ``Maximum Pay Rate
Table'' as ``the DHS-issued table that identifies the maximum pay rates
for selected System positions that may be used for reimbursement of
Affiliated Personnel compensation and Backfill for Activated System
Members employed by or otherwise associated with a for-profit
Participating Agency.'' In that same section, the term ``Affiliated
Personnel'' is defined as ``individuals not normally employed by a
Sponsoring Agency or Participating Agency and individuals normally
affiliated with a Sponsoring Agency or Participating Agency as
volunteers.''
(b) Scope of this section. (1) The Maximum Pay Rate Table applies
to those individuals who are not normally employed by a Sponsoring
Agency or Participating Agency, or whose affiliation with a Sponsoring
Agency or Participating Agency is as a volunteer; that is, an
individual whom the Sponsoring Agency or Participating Agency does not
normally compensate in any way, at any rate.
(2) The Table also applies to Backfill for Activated System Members
employed by or otherwise associated with a for-profit Participating
Agency.
(c) Method for determining maximum pay rates. (1) DHS uses the
United States Office of Personnel Management's salary rates, computed
under 5 U.S.C. 5504, as the basis for the maximum pay rate schedule.
DHS considers System members' experience and sets maximum pay rates at
the maximum grade, middle step for each position, which demonstrates an
experience level of five years.
(2) The Office of Personnel Management (OPM) publishes salary and
locality pay schedules each calendar year.
(i) Physicians. DHS uses the latest Special Salary Rate Table
Number 0290 for Medical Officers (Clinical) Worldwide for physicians.
The rates used in the initial Table can be found at http://www.opm.gov/oca/03
tables/SSR/HTML/0290.asp.
(ii) Engineers and Canine Handlers. DHS uses the latest General
Schedule pay scale for both positions. Both specialties are compared to
the General Schedule pay scale to ensure parity with like specialties
on a task force (canine handlers are equated with rescue specialists).
The rates used in the initial Table can be found at http://www.opm.gov/oca/03tables/html/gs.asp
.
(iii) Locality Pay. To determine adjustments for locality pay DHS
uses the latest locality pay areas (including the ``Rest of U.S.''
area) established by OPM. The rates used in the initial Table can be
found at http://www.opm.gov/oca/03tables/locdef.asp.
(3) Review and update. DHS will review and update the Table
periodically, at least annually. The comments of Sponsoring and
Participating Agencies and their experience with the Table will be
considered and evaluated in the course of the reviews.
(4) Initial rates and subsequent revisions. DHS will publish the
initial maximum pay rate table in the Federal Register as a notice with
request for comments. Subsequent revisions will be made to the pay rate
table as OPM changes salary rates as described in this section. When
subsequent revisions are made to the maximum pay rate table DHS will
publish the new maximum pay rate table in the Federal Register. The
rates will be effective for the latest year indicated by OPM.\1\
---------------------------------------------------------------------------
\1\ In some years the latest year may not be the current
calendar year. For instance, OPM did not change its pay rates for
calendar year 2004, and the 2003 schedules apply.
---------------------------------------------------------------------------
(d) Application of the maximum pay rate table--(1) Applicability.
The Maximum Pay Rate Table sets forth maximum rates for which DHS will
reimburse the Sponsoring Agency for compensation paid to Activated
Affiliated Personnel and as Backfill for Activated System Members
employed by or otherwise associated with a for-profit Participating
Agency.
(2) Higher rates. The Sponsoring Agency may choose to pay
Affiliated Personnel at a higher rate, but DHS will not reimburse the
increment above the maximum rate specified in the Maximum Pay Rate
Table. Likewise, the Sponsoring Agency may choose to enter into a
Participating Agency agreement with the individual's employer, rather
than use the individual as an Affiliated Personnel, in which case the
Maximum Pay Rate Table would not apply.
(3) Compensation for Sponsoring Agency employees serving as
Affiliated Personnel. An employee of a Sponsoring Agency serving on a
Task Force in a capacity other than his or her normal job, e.g., a fire
department dispatcher affiliated with the Task Force as a canine search
specialist, as an Affiliated Personnel, would not necessarily be
subject to the Maximum Pay Rate Table for reimbursement for salary and
benefits for that individual. However, Sponsoring Agencies may use the
rates in the Maximum Pay Rate Table as a guide for establishing
compensation levels for such individuals.
(4) Backfill expenses for Affiliated Personnel under Sec.
208.39(g). (i) The only way that DHS can reimburse for Backfill costs
incurred for Affiliated Personnel is through Participating
[[Page 9198]]
Agencies. If reimbursement for Backfill expenses is needed for
Affiliated Personnel, DHS encourages them to urge their employers or
professional association to seek Participating Agency status.
(ii) Private, for-profit organizations. Participating Agency status
is available to private, for-profit organizations, e.g., HMOs or
medical or engineering professional associations, under the revised
definition of ``Participating Agency'' set forth in this Interim rule.
(See Definitions, Sec. 208.2, Participating Agency, and Sec. 208.32,
Maximum Pay Rate Table). When a for-profit Participating Agency must
backfill an Activated System Member's position we will compensate that
Participating Agency up to the maximum rate provided in the Table.
(iii) Compensation costs. DHS will reimburse for-profit
organizations, for purposes of reimbursement and Backfill, for the
System Member's actual compensation or the actual compensation of the
individual who Backfills a position (which includes salary and
benefits, as described in Sec. Sec. 208.39 and 208.40), but will not
reimburse for billable or other rates that might be charged for
services rendered to commercial clients or patients.
Sec. Sec. 208.13--208.20 [Reserved]
Subpart B--Preparedness Cooperative Agreements
Sec. 208.21 Purpose.
Subpart B of this part provides guidance on the administration of
Preparedness Cooperative Agreements.
Sec. 208.22 Preparedness Cooperative Agreement process.
(a) Application. To obtain DHS funding for an award or amendment of
a Preparedness Cooperative Agreement, the Sponsoring Agency must submit
an application. Standard form SF-424 ``Application for Federal
Assistance'' generally will be used. However, the application must be
in a form that the Assistance Officer specifies.
(b) Award. DHS will award a Preparedness Cooperative Agreement to
each Sponsoring Agency to provide Federal funding to develop and
maintain System resource capabilities and operational readiness. For
the purposes of the Preparedness Cooperative Agreement, the Sponsoring
Agency will be considered the ``recipient.''
(c) Amendment--(1) Procedure. Absent special circumstances, DHS
will fund and amend Preparedness Cooperative Agreements on an annual
basis. Before amendment, the Assistance Officer will issue a call for
Cooperative Agreement amendment applications. The Assistance Officer
will specify required application forms and supporting documentation to
be submitted with the application.
(2) Period of performance. Absent special circumstances, the period
of performance for Preparedness Cooperative Agreements will be 1 year
from the date of award. The Assistance Officer may allow for an
alternate period of performance with the approval of the Director.
(3) Assistance Officer. The Assistance Officer is the only
individual authorized to award or modify a Preparedness Cooperative
Agreement.
(d) Award amounts. The Director will determine award amounts on an
annual basis. A Task Force is eligible for an annual award only if the
Program Manager receives and approves the Task Force's current-year
Daily Cost Estimate.
(e) DHS priorities. The Director will establish overall priorities
for the use of Preparedness Cooperative Agreement funds taking into
consideration the results of readiness evaluations and actual
Activations, overall priorities of DHS, and other factors, as
appropriate.
(f) Cost sharing. The Director may subject Preparedness Cooperative
Agreement awards to cost sharing provisions. In the call for
Preparedness Cooperative Agreement amendment applications, the
Assistance Officer must inform Sponsoring Agencies about any cost
sharing obligations.
(g) Sponsoring Agency priorities. The Sponsoring Agency should
indicate its spending priorities in the application. The Program
Manager will review these priorities and will make recommendations to
the Assistance Officer for negotiating the final agreement.
(h) Responsibility to maintain integrity of the equipment cache.
The Sponsoring Agency is responsible to maintain the integrity of the
equipment cache, including but not limited to, maintenance of the
cache, replacement of equipment or supplies expended in training,
activations, or local use of the cache, and timely availability of the
cache for Task Force Activations.
Sec. 208.23 Allowable costs under Preparedness Cooperative
Agreements.
System Members may spend Federal funds that DHS provides under any
Preparedness Cooperative Agreement and any required matching funds
under 44 CFR 13.22 and this section to pay reasonable, allowable,
necessary and allocable costs that directly support System activities,
including the following:
(a) Administration, including:
(1) Management and administration of day-to-day System activities
such as personnel compensation and benefits relating to System
maintenance and development, record keeping, inventory of equipment,
and correspondence;
(2) Travel to and from System activities, meetings, conferences,
training, drills and exercises;
(3) Tests and examinations, including vaccinations, immunizations
and other tests that are not normally required or provided in the
course of a System Member's employment, and that DHS requires to meet
its standards.
(b) Training:
(1) Development and delivery of, and participation in, System-
related training courses, exercises, and drills;
(2) Construction, maintenance, lease or purchase of System-related
training facilities or materials;
(3) Personnel compensation expenses, including overtime and other
related expenses associated with System-related training, exercises, or
drills;
(4) System-required evaluations and certifications other than the
certifications that DHS requires System Members to possess at the time
of entry into the System. For instance, DHS will not pay for a medical
school degree, paramedic certification or recertification, civil
engineering license, etc.
(c) Equipment:
(1) Procurement of equipment and supplies specifically identified
on the then-current DHS-approved Equipment Cache List;
(2) Maintenance and repair of equipment included on the current
Equipment Cache List;
(3) Maintenance and repair of equipment acquired with DHS approval
through the Federal Excess Property program, except as provided in
Sec. 208.25 of this part;
(4) Purchase, construction, maintenance or lease of storage
facilities and associated equipment for System equipment and supplies.
(d) Disaster search canine expenses limited to:
(1) Procurement for use as a System resource;
(2) Training and certification expenses;
(3) Veterinary care.
(e) Management and administrative costs, actually incurred but not
otherwise specified in this section that directly support the
Sponsoring Agency's US&R capability, provided that such costs do not
exceed 7.5 percent of the award/amendment amount.
[[Page 9199]]
Sec. 208.24 Purchase and maintenance of items not listed on Equipment
Cache List.
(a) Requests for purchase or maintenance of equipment and supplies
not appearing on the Equipment Cache List, or that exceed the number
specified in the Equipment Cache List, must be made in writing to the
Program Manager. No Federal funds provided under any Preparedness
Cooperative Agreement may be expended to purchase or maintain any
equipment or supply item unless:
(1) The equipment and supplies directly support the Sponsoring
Agency's US&R capability;
(2) The Program Manager approves the expenditure and gives written
notice of his or her approval to the Sponsoring Agency before the
Sponsoring Agency purchases the equipment or supply item.
(b) Maintenance of items approved for purchase under this section
is eligible for reimbursement, except as provided in Sec. 208.26 of
this subpart.
Sec. 208.25 Obsolete equipment.
(a) The Director will periodically identify obsolete items on the
Equipment Cache List and provide such information to Sponsoring
Agencies.
(b) Neither funds that DHS provides nor matching funds required
under a Preparedness Cooperative Agreement may be used to maintain or
repair items that DHS has identified as obsolete.
Sec. 208.26 Accountability for use of funds.
The Sponsoring Agency is accountable for the use of funds as
provided under the Preparedness Cooperative Agreement, including
financial reporting and retention and access requirements according to
44 CFR 13.41 and 13.42.
Sec. 208.27 Title to equipment.
Title to equipment purchased by a Sponsoring Agency with funds
provided under a DHS Preparedness Cooperative Agreement vests in the
Sponsoring Agency, provided that DHS reserves the right to transfer
title to the Federal Government or a third party that DHS may name,
under 44 CFR 13.32(g), for example, when a Sponsoring Agency indicates
or demonstrates that it cannot fulfill its obligations under the
Memorandum of Agreement.
Sec. Sec. 208.28-208.30 [Reserved]
Subpart C--Response Cooperative Agreements
Sec. 208.31 Purpose.
Subpart C of this part provides guidance on the administration of
Response Cooperative Agreements.
Sec. 208.32 Definitions of terms used in this subpart.
Affiliated Personnel means individuals not normally employed by a
Sponsoring Agency or Participating Agency and individuals normally
affiliated with a Sponsoring Agency or Participating Agency as
volunteers.
Demobilization Order means a DHS communication that terminates an
Alert or Activation and identifies cost and time allowances for
rehabilitation.
Exempt means any System Member who is exempt from the requirements
of the Fair Labor Standards Act, 29 U.S.C. 201 et seq., pertaining to
overtime compensation and other labor standards.
Maximum Pay Rate Table means the DHS-issued table that identifies
the maximum pay rates for selected System positions that may be used
for reimbursement of Affiliated Personnel compensation and Backfill for
Activated System Members employed by or otherwise associated with a
for-profit Participating Agency. The Maximum Pay Rate Table does not
apply to a System member whom a Sponsoring Agency or Participating
Agency employs.
Mobilization means the process of assembling equipment and
personnel in response to an Alert or Activation.
Non-Exempt means any System Member who is covered by 29 U.S.C. 201
et seq.
Rehabilitation means the process of returning personnel and
equipment to a pre-incident state of readiness after DHS terminates an
Activation.
Sec. 208.33 Allowable costs.
(a) Cost neutrality. DHS policy is that an Alert or Activation
should be as cost neutral as possible to Sponsoring Agencies and
Participating Agencies. To make an Alert or Activation cost-neutral,
DHS will reimburse under this subpart all reasonable, allowable,
necessary and allocable costs that a Sponsoring Agency or Participating
Agency incurs during the Alert or Activation.
(b) Actual costs. Notwithstanding any other provision of this
chapter, DHS will not reimburse a Sponsoring Agency or Participating
Agency for any costs greater than those that the Sponsoring Agency or
Participating Agency actually incurs during an Alert, Activation.
(c) Normal or predetermined practices. Consistent with Office of
Management and Budget (OMB) Circulars A-21, A-87, A-102 and A-110 (2
CFR part 215), as applicable, Sponsoring Agencies and Participating
Agencies must adhere to their own normal and predetermined practices
and policies of general application when requesting reimbursement from
DHS except as it sets out in this subpart.
(d) Indirect costs. Indirect costs beyond the administrative and
management costs allowance established by Sec. 208.41 of this part are
not allowable.
Sec. 208.34 Agreements between Sponsoring Agencies and others.
Sponsoring Agencies are responsible for executing such agreements
with Participating Agencies and Affiliated Personnel as may be
necessary to implement the Sponsoring Agency's Response Cooperative
Agreement with DHS. Those agreements must identify established hourly
or daily rates of pay for System Members. The hourly or daily rates of
pay for Affiliated Personnel must be in accordance with, and must not
exceed, the maximum pay rates contained in the then-current Maximum Pay
Rate Table.
Sec. 208.35 Reimbursement for Advisory.
DHS will not reimburse costs incurred during an Advisory.
Sec. 208.36 Reimbursement for Alert.
(a) Allowable costs. DHS will reimburse costs incurred during an
Alert, up to the dollar limit specified in the Alert Order, for the
following activities:
(1) Personnel costs, including Backfill, incurred to prepare for
Activation.
(2) Transportation costs relating to hiring, leasing, or renting
vehicles and drivers.
(3) The administrative allowance provided in Sec. 208.41 of this
part.
(4) Food and beverages for Task Force Members and Support
Specialists when DHS does not provide meals during the Alert. DHS will
limit food and beverage reimbursement to the amount of the then-current
Federal meals daily allowance published in the Federal Register for the
locality where such food and beverages were provided, multiplied by the
number of personnel who received them.
(b) Calculation of Alert Order dollar limit. The Alert Order dollar
limit will equal:
(1) An allowance of 10 percent of the Task Force's Daily Cost
Estimate; and
(2) A supplemental allowance of 1 percent of the Task Force's Daily
Cost Estimate for each 24-hour period beyond the first 72 hours of
Alert.
(c) Non-allowable costs. DHS will not reimburse costs incurred or
relating to the leasing, hiring or chartering of aircraft or the
purchase of any equipment, aircraft, or vehicles.
[[Page 9200]]
Sec. 208.37 Reimbursement for equipment and supply costs incurred
during Activation.
(a) Allowable costs. DHS will reimburse costs incurred for the
emergency procurement of equipment and supplies in the number, type,
and up to the cost specified in the current approved Equipment Cache
List, and up to the aggregate dollar limit specified in the Activation
Order. The Director may determine emergency procurement dollar limits,
taking into account previous Activation history, available funding, the
extent and nature of the incident, and the current state of Task Force
readiness.
(b) Non-Allowable costs. DHS will not reimburse costs incurred for
items that are not listed on the Equipment Cache List; for items
purchased greater than the cost or quantity identified in the Equipment
Cache List; or for any purchase of non-expendable items that duplicate
a previous purchase under a Preparedness or Response Cooperative
Agreement.
Sec. 208.38 Reimbursement for re-supply and logistics costs incurred
during Activation.
With the exception of emergency procurement authorized in the
Activation Order, and replacement of consumable items provided for in
Sec. 208.43(a)(2) of this subpart, DHS will not reimburse costs
incurred for re-supply and logistical support during Activation. Re-
supply and logistical support of Task Forces needed during Activation
are the responsibility of the Joint Management Team.
Sec. 208.39 Reimbursement for personnel costs incurred during
Activation.
(a) Compensation. DHS will reimburse the Sponsoring Agency for
costs incurred for the compensation of each Activated System Member
during Activation. Reimbursement of compensation costs for Activated
Support Specialists will be limited to periods of time during which
they were actively supporting the Activation or traveling to or from
locations at which they were actively supporting the Activation. The
provisions of Sec. 208.40 of this part govern costs incurred for
providing fringe benefits to System Members.
(b) Public Safety Exemption not applicable. DHS will reimburse
Sponsoring Agencies for costs incurred by Non-Exempt System Members in
accordance with 29 U.S.C. 207(a) of the Fair Labor Standards Act,
without regard to the public safety exemption contained in 29 U.S.C.
207(k). In other words, DHS will reimburse Sponsoring Agencies on an
overtime basis for any hours worked by Non-Exempt System Members
greater than 40 hours during a regular workweek.
(c) Tour of duty. The tour of duty for all Activated System Members
will be 24 hours. DHS will reimburse the Sponsoring Agency for salary
and overtime costs incurred in compensating System Members for meal
periods and regularly scheduled sleep periods during Activation.
Activated System Members are considered ``on-duty'' and must be
available for immediate response at all times during Activation.
(d) Regular rate. The regular rate for purposes of calculating
allowable salary and overtime costs is the amount determined in
accordance with Sec. 208.39(e)(1) through (3) of this subpart.
(e) Procedures for calculating compensation during Activation. A
Sponsoring Agency or Participating Agency must:
(1) Convert the base hourly wage of any Non-Exempt System Member
regularly paid under 29 U.S.C. 207(k) to its equivalent for a 40-hour
work week;
(2) Convert the annual salary of any salaried Non-Exempt System
Member to its hourly equivalent for a 40-hour workweek;
(3) Calculate the daily compensation of Exempt System Members based
on their current annual salary, exclusive of fringe benefits;
(4) Calculate the total number of hours worked by each System
Member to be included in the Sponsoring Agency's request for
reimbursement; and
(5) Submit a request for reimbursement under Sec. 208.52 of this
part according to the following table:
------------------------------------------------------------------------
And the Sponsoring
If the Sponsoring Agency or Agency or Then the following
Participating Agency * * * Participating compensation costs
Agency * * * are allowable:
------------------------------------------------------------------------
(i) Customarily and usually Does not customarily The daily
compensates Exempt System and usually grant compensation
Members by paying a salary, compensatory time equivalent
but not overtime, or other form of calculated under
overtime substitute Sec. 208.39(e)(3)
to Exempt System of this part for
members. each Activated
Exempt System
Member for each
full or partial day
during Activation.
(ii) Customarily and usually Customarily and The daily
compensates Exempt System usually awards compensation
Members by paying a salary compensatory time equivalent
but not overtime or other overtime calculated under
substitute for Sec. 208.39(e)(3)
Exempt System of this part for
Members for hours each Activated
worked above a Exempt System
predetermined hours Member for each
threshold (for full or partial day
example, the during Activation
Sponsoring Agency AND the dollar
customarily and value at the time
usually grants of accrual of the
compensatory time compensatory time
for all hours or other overtime
worked above 60 in substitute for each
a given week). Activated Exempt
System Member based
on the duration of
the Activation.
(iii) Customarily and Customarily and The daily
usually compensates Exempt usually calculates compensation
System Members by paying a overtime for Exempt equivalent
salary and overtime, System Members by calculated under
paying a Sec. 208.39(e)(3)
predetermined of this part for
overtime payment each Activated
for each hour Exempt System
worked above a Member for each
predetermined hours full or partial day
threshold,. during Activation
AND the
predetermined
overtime payment
for each hour
during the
Activation above
the previously
determined hours
threshold for each
Activated Exempt
System Member.
(iv) Customarily and usually Does not customarily For each seven-day
compensates Non-Exempt and usually grant period during the
System Members by paying compensatory time Activation, the
overtime after 40 hours per or other form of hourly wage of each
week, overtime substitute Activated Non-
to Non-Exempt Exempt System
System members,. Member for the
first 40 hours AND
the overtime
payment for each
Activated Non-
Exempt System
Member for every
hour over 40.
[[Page 9201]]
(v) Customarily and usually Does not customarily For each seven-day
compensates Non-Exempt and usually grant period during the
System Members according to compensatory time Activation, the
a compensation plan or other form of hourly wage
established under 29 U.S.C. overtime substitute equivalent of each
207(k), to Non-Exempt Activated Non-
System Members,. Exempt System
Member calculated
under Sec.
208.39(e)(1) of
this part for the
first 40 hours AND
the overtime
payment equivalent
for each Activated
Non-Exempt System
Member calculated
under Sec.
208.39(e)(1) of
this part for every
hour over 40.
(vi) Activates Personnel, .................... For each seven-day
who are customarily and period during the
usually paid an hourly wage Affiliated
according to the Maximum Activation, the
Pay Rate Table, hourly wage for
each Activated
Affiliated
Personnel for the
first 40 hours and
one and one-half
times the hourly
wage for each
Activated
Affiliated
Personnel for every
hour over 40.
(vii) Activates Affiliated .................... The daily
Personnel who are compensation rate
customarily and usually for each Activated
paid a daily compensation Affiliated
rate according to the Personnel for each
Maximum Pay Rate Table, full or partial day
during the
Activation.
------------------------------------------------------------------------
(f) Reimbursement of additional salary and overtime costs. DHS will
reimburse any identified additional salary and overtime cost incurred
by a Sponsoring Agency as a result of the temporary conversion of a
Non-Exempt System Member normally compensated under 29 U.S.C. 207(k) to
a 40-hour work week under 29 U.S.C. 207(a).
(g) Reimbursement for Backfill costs upon Activation. DHS will
reimburse the cost to Backfill System Members. Backfill costs consist
of the expenses generated by filling the position in which the
Activated System Member should have been working. These costs are
calculated by subtracting the non-overtime compensation, including
fringe benefits, of Activated System Members from the total costs (non-
overtime and overtime compensation, including fringe benefits) paid to
Backfill the Activated System Members. Backfill reimbursement is
available only for those positions that are normally Backfilled by the
Sponsoring Agency or Participating Agency during Activation. Employees
exempt under the Fair Labor Standards Act (FLSA) not normally
Backfilled by the Sponsoring Agency or Participating Agency are not
eligible for Backfill during Activation.
Sec. 208.40 Reimbursement of fringe benefit costs during Activation.
(a) Except as specified in Sec. 208.40 (c) of this subpart, DHS
will reimburse the Sponsoring Agency for fringe benefit costs incurred
during Activation according to the following table:
------------------------------------------------------------------------
Then the Sponsoring
If the Sponsoring Agency or Agency or
Participating Agency * * * Participating Agency Example
must * * *
------------------------------------------------------------------------
(1) Incurs a fringe benefit Bill DHS for a pro- The City Fire
cost based on the number of rata share of the Department incurs a
base hours worked by a premium based on premium of 3
System Member, the number of base percent for dental
hours worked during coverage based on
Activation. the number of base
hours worked in a
week (53 hours).
The City should
bill DHS an
additional 3
percent of the
firefighter's
converted
compensation for
the first 40 hours
Activation.
(2) Incurs a fringe benefit Bill DHS for a pro- The City Fire
cost based on the number of rata share of the Department pays a
hours a System Member premium based on premium of 12
actually worked (base hours the number of hours percent for
and overtime), each System Member retirement based on
worked during the number of hours
Activation. worked by a
firefighter. The
City should bill
DHS an additional
12 percent of the
firefighter's total
compensation during
Activation.
(3) Incurs a fringe benefit Bill DHS for a pro- The City Fire
cost on a yearly basis rata share of those Department pays
based on the number of fringe benefit workers
people employed full-time costs based on the compensation
during the year, number of non- premiums into the
overtime hours City risk fund for
worked during the following year,
Activation by based on the number
System Members of full-time
employed full time. firefighters
employed during the
current year. The
City should bill
DHS for workers
compensation
premium costs by
multiplying the
hourly fringe
benefit rate or
amount by the
number of non-
overtime hours
worked during
Activation by full
time firefighters
who are System
Members.
------------------------------------------------------------------------
(b) Differential pay. DHS will reimburse the Sponsoring Agency for
direct costs incurred because of any separate differential compensation
paid for work performed during an Activation including, but not limited
to, differentials paid for holidays, night work, hazardous duty, or
other paid fringe benefits, provided such differentials are not
otherwise reimbursed under paragraph (a) of this section. A detailed
explanation of the differential payment for which the Sponsoring Agency
seeks reimbursement must accompany any
[[Page 9202]]
request for reimbursement under this section together with
identification of every fringe benefit sought under Sec. 208.40(a) of
this part and the method used to calculate each such payment and the
reimbursement sought from DHS.
(c) DHS will not reimburse the Sponsoring Agency for fringe benefit
costs for Affiliated Personnel.
Sec. 208.41 Administrative allowance.
(a) The administrative allowance is intended to defray costs of the
following activities, to the extent provided in paragraph (b) of this
section:
(1) Collecting expenditure information from Sponsoring Agencies and
Participating Agencies;
(2) Compiling and summarizing cost records and reimbursement
claims;
(3) Duplicating cost records and reimbursement claims; and
(4) Submitting reimbursement claims, including mailing,
transmittal, and related costs.
(b) The administrative allowance will be equal to the following:
(1) If total allowable costs are less than $100,000, 3 percent of
total allowable costs included in the reimbursement claim;
(2) If total allowable costs are $100,000 or more but less than
$1,000,000, $3,000 plus 2 percent of costs included in the
reimbursement claim greater than $100,000;
(3) If total allowable costs are $1,000,000 or more, $21,000 plus 1
percent of costs included in the reimbursement claim greater than
$1,000,000.
Sec. 208.42 Reimbursement for other administrative costs.
Costs incurred for conducting after-action meetings and preparing
after-action reports must be billed as direct costs in accordance with
DHS administrative policy.
Sec. 208.43 Rehabilitation.
DHS will reimburse costs incurred to return System equipment and
personnel to a state of readiness following Activation as provided in
this section.
(a) Costs for Equipment Cache List items--(1) Non-consumable items.
DHS will reimburse costs incurred to repair or replace any non-
consumable item on the Equipment Cache List that was lost, damaged,
destroyed, or donated at DHS direction to another entity, during
Activation. For each such item, the Sponsoring Agency must document, in
writing, the circumstances of the loss, damage, destruction, or
donation.
(2) Consumable items. DHS will reimburse costs incurred to replace
any consumable item on the Equipment Cache List that was consumed
during Activation.
(3) Personnel costs associated with equipment cache rehabilitation.
DHS will reimburse costs incurred for the compensation, including
benefits, payable for actual time worked by each person engaged in
rehabilitating the equipment cache following Activation, in accordance
with the standard pay policy of the Sponsoring Agency or Participating
Agency and without regard to the provisions of Sec. 208.39(e)(1) of
this part, up to the number of hours specified in the Demobilization
Order. Fringe benefits are reimbursed under the provisions of Sec.
208.40 of this part.
(b) Costs for personnel rehabilitation. DHS will reimburse costs
incurred for the compensation, including benefits and Backfill, of each
Activated System Member regularly scheduled to work during the
rehabilitation period specified in the Demobilization Order, in
accordance with the standard pay policy of the Sponsoring Agency or
Participating Agency and without regard to the provisions of Sec.
208.39(e)(1) of this part.
(c) Other allowable costs--(1) Local transportation. DHS will
reimburse costs incurred for transporting Task Force Members from the
point of assembly to the point of departure and from the point of
return to the location where they are released from duty. DHS will also
reimburse transportation costs incurred for assembling and moving the
equipment cache from its usual place(s) of storage to the point of
departure, and from the point of return to its usual place(s) of
storage. Such reimbursement will include costs to return the means of
transportation to its point of origin.
(2) Ground transportation. When DHS orders a Sponsoring Agency to
move its Task Force Members and equipment cache by ground
transportation, DHS will reimburse costs incurred for such
transportation, including but not limited to charges for contract
carriers, rented vehicles, contract vehicle operators, fleet vehicles,
fuel and associated transportation expenses. The Director has authority
to issue schedules of maximum hourly or per mile reimbursement rates
for fleet and contract vehicles.
(3) Food and beverages. DHS will reimburse expenditures for food
and beverages for Activated Task Force Members and Support Specialists
when the Federal government does not provide meals during Activation.
Reimbursement of food and beverage costs for Activated Support
Specialists will be limited to periods of time during which they were
actively supporting the Activation or traveling to or from locations at
which they were actively supporting the Activation. Food and beverage
reimbursement will be limited to the amount of the then-current Federal
meals and incidental expenses daily allowance published in the Federal
Register for the locality where such food and beverages were provided,
multiplied by the number of personnel who received the same.
Sec. 208.44 Reimbursement for other costs.
(a) Except as allowed under paragraph (b) of this section, DHS will
not reimburse other costs incurred preceding, during or upon the
conclusion of an Activation unless, before making the expenditure, the
Sponsoring Agency has requested, in writing, permission for a specific
expenditure and has received written permission from the Program
Manager or his or her designee to make such expenditure.
(b) At the discretion of the Program Manager or his or her
designee, a request for approval of costs presented after the costs
were incurred must be in writing and establish that:
(1) The expenditure was essential to the Activation and was
reasonable;
(2) Advance written approval by the Program Manager was not
feasible; and
(3) Advance verbal approval by the Program Manager had been
requested and was given.
Sec. 208.45 Advance of funds.
At the time of Activation of a Task Force, the Task Force will
develop the documentation necessary to request an advance of funds be
paid to such Task Force's Sponsoring Agency. Upon approval, DHS will
submit the documentation to the Assistance Officer and will request an
advance of funds up to 75 percent of the estimated personnel costs for
the Activation. The estimated personnel costs will include the
salaries, benefits, and Backfill costs for Task Force Members and an
estimate of the salaries, benefits and Backfill costs required for
equipment cache rehabilitation. The advance of funds will not include
any costs for equipment purchase.
Sec. 208.46 Title to equipment.
Title to equipment purchased by a Sponsoring Agency with funds
provided under a DHS Response Cooperative Agreement vests in the
Sponsoring Agency, provided that DHS reserves the right to transfer
title to the Federal Government or a third party that DHS may name,
under 44 CFR 13.32(g), when a Sponsoring Agency indicates or
demonstrates that it cannot fulfill its
[[Page 9203]]
obligations under the Memorandum of Agreement.
Sec. Sec. 208.47-208.50 [Reserved]
Subpart D--Reimbursement Claims and Appeals
Sec. 208.51 General.
(a) Purpose. This subpart identifies the procedures that Sponsoring
Agencies must use to request reimbursement from DHS for costs incurred
under Response Cooperative Agreements.
(b) Policy. It is DHS policy to reimburse Sponsoring Agencies as
expeditiously as possible consistent with Federal laws and regulations.
Sec. 208.52 Reimbursement procedures.
(a) General. A Sponsoring Agency must present a claim for
reimbursement to DHS in such manner as the Director specifies .
(b) Time for submission. (1) Claims for reimbursement must be
submitted within 90 days after the end of the Personnel Rehabilitation
Period specified in the Demobilization Order.
(2) The Director may extend and specify the time limitation in
paragraph (b)(1) of this section when the Sponsoring Agency justifies
and requests the extension in writing.
Sec. Sec. 208.53-208.59 [Reserved]
Sec. 208.60 Determination of claims.
When DHS receives a reviewable claim for reimbursement, DHS will
review the claim to determine whether and to what extent reimbursement
is allowable. Except as provided in Sec. 208.63 of this part, DHS will
complete its review and give written notice to the Sponsoring Agency of
its determination within 90 days after the date DHS receives the claim.
If DHS determines that any item of cost is not eligible for
reimbursement, its notice of determination will specify the grounds on
which DHS disallowed reimbursement.
Sec. 208.61 Payment of claims.
DHS will reimburse all allowable costs for which a Sponsoring
Agency requests reimbursement within 30 days after DHS determines that
reimbursement is allowable, in whole or in part, at any stage of the
reimbursement and appeal processes identified in this subpart.
Sec. 208.62 Appeals.
(a) Initial appeal. The Sponsoring Agency may appeal to the Program
Manager any determination made under Sec. 208.60 of this part to
disallow reimbursement of an item of cost:
(1) The appeal must be in writing and submitted within 60 days
after receipt of DHS's written notice of disallowance under Sec.
208.60 of this part.
(2) The appeal must contain legal and factual justification for the
Sponsoring Agency's contention that the cost is allowable.
(3) Within 90 days after DHS receives an appeal, the Program
Manager will review the information submitted, make such additional
investigations as necessary, make a determination on the appeal, and
submit written notice of the determination of the appeal to the
Sponsoring Agency.
(b) Final appeal. (1) If the Program Manager denies the initial
appeal, in whole or in part, the Sponsoring Agency may submit a final
appeal to the Deputy Director. The appeal must be made in writing and
must be submitted not later than 60 days after receipt of written
notice of DHS's determination of the initial appeal.
(2) Within 90 days following the receipt of a final appeal, the
Deputy Director will render a determination and notify the Sponsoring
Agency, in writing, of the final disposition of the appeal.
(c) Failure to file timely appeal. If the Sponsoring Agency does
not file an appeal within the time periods specified in this section,
DHS will deem that the Sponsoring Agency has waived its right to appeal
any decision that could have been the subject of an appeal.
Sec. 208.63 Request by DHS for supplemental information.
(a) At any stage of the reimbursement and appeal processes
identified in this subpart, DHS may request the Sponsoring Agency to
provide supplemental information that DHS considers necessary to
determine either a claim for reimbursement or an appeal. The Sponsoring
Agency must exercise its best efforts to provide the supplemental
information and must submit to DHS a written response that includes
such supplemental information as the Sponsoring Agency is able to
provide within 30 days after receiving DHS's request.
(b) If DHS makes a request for supplemental information at any
stage of the reimbursement and appeal processes, the applicable time
within which its determination of the claim or appeal is to be made
will be extended by 30 days. However, without the consent of the
Sponsoring Agency, no more than one such time extension will be allowed
for any stage of the reimbursement and appeal processes.
Sec. 208.64 Administrative and audit requirements.
(a) Non-Federal audit. For Sponsoring Agencies and States,
requirements for non-Federal audit are contained in 44 CFR 13.26, in
accordance with OMB Circular A-133, Audits of States, Local
Governments, and Non-Profit Organizations.
(b) Federal audit. DHS or the General Accounting Office may elect
to conduct a Federal audit of any payment made to a Sponsoring Agency
or State.
Sec. 208.65 Mode of transmission.
When sending all submissions, determinations, and requests for
supplemental information under this subpart, all parties must use a
means of delivery that permits both the sender and addressee to verify
the dates of delivery.
Sec. 208.66 Reopening of claims for retrospective or retroactive
adjustment of costs.
(a) Upon written request by the Sponsoring Agency DHS will reopen
the time period for submission of a request for reimbursement after the
Sponsoring Agency has submitted its request for reimbursement, if:
(1) The salary or wage rate applicable to the period of an
Activation is retroactively changed due to the execution of a
collective bargaining agreement, or due to the adoption of a generally
applicable State or local law, ordinance or wage order or a cost-of-
living adjustment;
(2) The Sponsoring Agency or any Participating Agency incurs an
additional cost because of a legally-binding determination; or
(3) The Deputy Director determines that other extenuating
circumstances existed that prevented the Sponsoring Agency from
including the adjustment of costs in its original submission.
(c) The Sponsoring Agency must notify DHS as early as practicable
that it anticipates such a request.
Sec. Sec. 208.67-208.70 [Reserved]
Dated: February 3, 2005.
Michael D. Brown,
Under Secretary, Emergency Preparedness and Response, Department of
Homeland Security.
[FR Doc. 05-3192 Filed 2-23-05; 8:45 am]
BILLING CODE 9110-69-P