HomeMy WebLinkAboutExhibitMEMORANDUM OF AGREEMENT
BETWEEN
CITY OF MIAMI FIRE RESCUE, AS THE SPONSORING AGENCY
OF THE FLORIDA TASK FORCE 2 OF THE NATIONAL URBAN SEARCH AND RESCUE RESPONSE
SYSTEM
AND
THE CITY OF DANIA BEACH,
AS A PARTICIPATING AGENCY OF THE TASK FORCE
This "Agreement" is entered into by and between the parties designated in Section 1,
below, who agree that subject to all of the provisions of this Agreement, The City of Dania
Beach will serve as a Participating Agency for the Florida Task Force 2 of the National Urban
Search and Rescue Response System. Each party further agrees that it assumes all of the duties
and responsibilities assigned to that party under this Agreement and that so long as this
Agreement remains in effect, the party will fully perform all of those duties and responsibilities.
1. PARTIES
The parties to this Agreement are the following entities:
1.1. Sponsoring Agency:
' City of Miami Fire Rescue
1150 NW 7 Street
Miami, Florida 33136
1.2 -Participating Agency:
City of Dania Beach
100 West Dania Beach Boulevard
Dania Beach, Florida 33004
2. RECITALS
Sponsoring Agency and Participating Agency have entered into this Agreement in
recognition of the following Recitals:
?,311-
2.1 Sponsoring Agency. Sponsoring Agency is a cooperating party under a
"Memorandum of Agreement" dated June 18, 2008, with the Federal Emergency Management
Agency ("FEMA") and the State of Florida. A copy of the Memorandum of Agreement (the
"FEMA MOA") is attached to this Agreement as Appendix "A" and incorporated by reference.
2.2 National Urban Search & Rescue Response System. Pursuant to federal law,
principally the Robert T. Stafford Disaster Relief and Emergency Assistance Act, 42 U.S.C. §§
5121 through 5206 (the "Stafford Act"), the U.S. Department of Homeland Security ("DHS"),
acting through FEMA, operates the National Urban Search & Rescue Response System
("System") in conjunction with State and local governments.
2.3 Task Forces. Each Sponsoring Agency is responsible for recruiting and
organizing a Task Force consisting of individuals occupying certain specified positions plus
additional support personnel, all of whom have been properly trained with the requisite skills and
capabilities required for urban search and rescue operations and/or deployment of the Task
Force. A Task Force may be deployed as a single unit or it may be reorganized into teams for
purposes of modularized responses for limited or specialized Activations. Members of a Task
Force may also be deployed as members of a management or other technical team.
2.4 Florida Task Force 2. The City of Miami Fire Rescue is the Sponsoring
Agency for Florida Task Force 2 (the "Task Force") and is charged with, among other things,
recruiting and organizing members for the Task Force. In the performance of its responsibilities,
the Sponsoring Agency may enter into cooperative arrangements with federal, state, or local
government entities, or non-profit or for -profit entities, to serve as Participating Agencies in the
Task Force and with individuals to serve as Affiliated Personnel of the Task Force. The
Sponsoring Agency is obligated to enter into written agreements with those Participating
Agencies and Affiliated Personnel setting forth the relationship between the parties.
2.5 Participating Agency. The City of Dania Beach desires to be a Participating
Agency in the Task Force, subject to all of the provisions of this Agreement.
2.6 Applicable Provisions. With respect to National Urban Search & Rescue
Response System activities, this Agreement incorporates the provisions of Interim Final Rule,
"National Urban Search and Rescue Response System," 70 Fed. Reg. 9182 (Feb. 24, 2005)
("Interim Final Rule"),.attached as Appendix "B," as well as the provisions of the FEMA MOA,
attached as Appendix "A." To the extent the Interim Final Rule is contrary to the FEMA MOAe
the Interim Final Rule will prevail. Upon the effective date of the Final Rule governing this
subject ("Final Rule"), the Final Rule shall supersede the Interim Final Rule in Appendix "B"
and shall prevail over any contrary provisions of the Interim Final Rule or the FEMA MOA.
2.7 Definitions of Terms. Capitalized words and phrases in this Agreement have the
same meaning as they do in the Interim Final Rule, unless or until superseded by the Final Rule.
Capitalized words and phrases not defined in the Interim Final Rule or the Final Rule have the
meaning given in this Agreement.
3. AGREED TERMS AND CONDITIONS
3.1 Participating Agency.
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3.1.1 Participating Agency agrees to provide personnel to serve in certain
designated positions on the Task Force as determined by Sponsoring Agency. A list of
the individuals who will occupy those designated positions, and who are refereed to in
this Agreement as ."Participants," as well as other pertinent information about them is
contained in Appendix [ j. (Future Issue)
3.1.2 Participating Agency further agrees that Participants will meet the
required qualifications for the positions to be filled, will receive the required training
specified in this Agreement and will satisfy other conditions of preparedness and
response as required by the Sponsoring Agency.
3.1.3 The Parties will cooperate with each other so as to facilitate achievement
of the goals and objectives of the System as fully and completely as possible.
3.2 Third Party Liability and Workers' Compensation.
3.2.1 Participating Agency and its Participants shall be afforded such coverage
for third party liability and workers' compensation as is afforded all Task Forces and their
System Members under Federal law, the scope of which is generally described in
Appendices "A" and 'B."
3.2.2 Except as afforded by the Federal Government, the responsibility for risks
associated with claims for third party liability and workers' compensation arising out of
participation in the Task Force, either organizationally by the Participating Agency or
individually by its Participants, shall be the responsibility of Participating Agency and
not under any circumstances, the responsibility of Sponsoring Agency. At all times,
Participating Agency shall maintain in full force and effect, and provide proof of, for the
benefit of its Participants and its other employees engaged in System activities, coverage
for workers' compensation and third party liability to the full extent required by law.
' 3.3 Financial Provisions.
3.3.1 Preparedness Funds
3.3.1.1 In its sole discretion, Sponsoring Agency may distribute to
Participating Agency such preparedness grant funding as Sponsoring
Agency shall be eligible to and does receive from FEMA. Any such
distributions shall be subject to the requirements of the preparedness
grants and the needs of the Task Force generally.
3.3.1.2 Any other funding received by Sponsoring Agency from sources
other than the federal government may also be made available as
Sponsoring Agency determines in its discretion. Sponsoring Agency shall
make such distributions fairly and equitably taking into account the
mission, goals and objectives of the Task Force and the needs of the
Sponsoring Agency as compared to other proper needs and demands.
3.3.2 Response Funds
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3.3.2.1 Sponsoring Agency shall promptly reimburse Participating Agency
for response expenses that are authorized to be incurred by or for the
benefit of Participants engaged in Task Force activities, upon receiving
reimbursement for such expenses from the federal government. Such
expenses must be properly ascertained, accumulated and reported to the
Sponsoring Agency, and the funds to be utilized for payment must have
been reimbursed by or on behalf of FEMA to Sponsoring Agency.
3.3.2.2 After an Activation, Participating Agency shall provide Sponsoring
Agency with a complete cost reimbursement package to be submitted by
Sponsoring Agency as part of an overall claim package which Sponsoring
Agency is obliged to submit to FEMA. The Participating Agency's cost
reimbursement package shall be submitted to the Sponsoring Agency
within 30 days after the end of the Personnel Rehabilitation Period
established by FEMA. Participating Agency's cost reimbursement
package shall be prepared in conformance with applicable federal
directives which Sponsoring Agency shall disseminate to Participating
Agency.
3.3.2.3 Participating Agency shall provide Sponsoring Agency with
employee compensation information for its Participants at least annually,
or as changes occur in compensation rates payable to Participants. That
information and other pertinent Participant data required by Sponsoring
Agency shall be provided in an updated version of Appendix "A".
3.3.2.4 To ensure proper reimbursement from FEMA, the compensation of
Participants on the Task Force shall be in accordance with pay schedules
and policies established by Appendix `B", from the time of activation and
until the Task Force returns, is deactivated and Participants are returned to
regular work schedules.
3.3.2.5 All financial commitments of Sponsoring Agency are subject to
the availability and receipt of funds by Sponsoring Agency from FEMA
and other sources.
3.3.2.6 Neither Participating Agency nor any Participant shall be
reimbursed for costs incurred outside the scope of this Agreement.
3.4 Reporting And Record Keeping Requirements.
3.4.1 The Participating Agency shall provide the Sponsoring Agency with the
records described in Appendix "A".
3.4.2 The Sponsoring Agency shall issue a Task Force Picture Identification
Card for all individuals listed in Appendix [see Section 3.1.1].
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3.4.3 Participating Agency shall ensure that any medical or other records and
information that are afforded confidentiality under applicable law are protected
from unauthorized disclosure.
3.4.4 Participating Agency shall provide prompt and accurate reporting as
specified in this Agreement, including Appendix "A".
3.5 Mandatory Minimum Requirements For Participation. Each Participant must
satisfy all of the following for participation on the Task Force.
3.5.1 Each Participant shall be an employee in good standing of the
Participating Agency. Entry-level employees who are probationary or in a similar
status are not eligible.
3.5.2 Each Participant shall be of good moral character and shall not have been
convicted of any felony or any other criminal offense involving moral turpitude.
3.5.3 Participants serving in a Task Force position that requires the individual to
hold a license, registration, certificate or other similar authorization to lawfully
engage in an activity must hold the appropriate authorization, which must be
current and validly issued.
3.5.4 Subject to any applicable FEMA standards, each Participant must meet the
medical/fitness standards mutually agreed upon by Sponsoring Agency and
Participating Agency and not have any medical condition or disability that will
prevent performance of the duties of the Task Force position he/she occupies.
3.5.5 Each Participant must be available on short notice to mobilize within
hours of request and be able to respond on a mission for up to 14 days.
3.5.6 Each Participant must be capable of improvising and functioning for long
hours under adverse working conditions.
3.5.7 Each Participant must receive such inoculations as are specified by the
Spongy ring Agency.
3.5.8 Each Participant must be aware of the signs, symptoms and corrective
measures of Critical Incident Stress Syndrome.
3.5.9 Each Participant must understand and adhere to safe working practices and
procedures as required in the urban disaster environment.
3.5.10 Each Participant must have a working knowledge of the US&R System
and the Task Force's organizational structure, operating procedures, safety
practices, terminology and communication protocols.
3.5.11 Each Participant must, have completed such courses of education and
training and other requirements as the Sponsoring Agency shall specify.
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3.5.12 Sponsoring Agency has authority to immediately suspend or terminate a
Participant's participation on the Task Force for failure to satisfy any mandatory
requirement.
3.6 Clothing and Equipment.
3.6.1 Sponsoring Agency will issue to each Participant certain items of personal
protective clothing and equipment for use in Task Force activities and operations.
In the event of Activation, Participant shall provide certain additional items of
personal clothing and equipment. All these matters are detailed specifically in
Appendix "A". Items of clothing and equipment supplied by Sponsoring Agency
shall remain the property of Sponsoring Agency and shall be returned promptly
whenever a person ceases to be a Participant.
3.6.2 Subject to H MA requirements, all uniforms will display the official patch
of the Task Force and the official patch of the System, as specified by the
Sponsoring Agency. The Sponsoring Agency shall specify the design of the
unifoiru and any identifying insignia or markings.
3.7 Command, Control and Coordination.
3.7.1 When a Participant has been Activated or has otherwise been placed at the
direction, control and funding of FEMA, such as, for example, during
participation in FEMA sponsored training, the ultimate authority for command,
control and coordination of the service of the Participant reposes with FEMA
exercised through the system chain of command. Subject to the principle just
stated, the following provisions of this Section 3.7 govern the responsibilities of
the parties with respect to supervisory, disciplinary and other specified aspects of
the Participant's employment within the context of his/her participation on the
Task Force
3.7.2 Sponsoring Agency shall exercise direct supervisory authority over
Participants during Activations, deployments and other activities of the Task
Force conducted by Sponsoring Agency, but for disciplinary purposes, that
authority is limited to temporary suspension or permanent exclusion from
participation. In all other instances where disciplinary action may be necessary,
Sponsoring Agency shall report the pertinent circumstances to Participating
Agency, which shall cooperate with Sponsoring Agency and shall administer
discipline as appropriate in accordance with the Participating Agency's
established rules and regulations.
3.7.3 Nothing in this Agreement is intended to, nor does it, affect the employer -
employee relationship between Participating Agency and its employees who are
Participants, and Participating Agency shall at all times continue to be fully
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responsible for all of its employment obligations to its employee Participants,
including the compensation and benefits that the Participating Agency has agreed
to provide.
3.7.4 While participating in System activities conducted by the Task Force,
Participants shall be subject to and observe and comply with all lawful orders and
directions of the authorized representatives of Sponsoring Agency and the Task
Force. Sponsoring Agency retains the right to suspend or exclude any Participant
from participation on the Task Force for cause including failure to abide by the
provisions of this Agreement.
3.8 Media and Tnformation Policy.
3.8.1 Subject to applicable law, including FEMA regulations and directives, all
photographs and video taken during a deployment will be kept under the control
of Sponsoring Agency until use in internal or external education programs or
other dissemination is approved by FEMA.
3.8.2 All applicable federal, state, and local media policies will be strictly
enforced and followed.
3.8.3 Subject to applicable rules and regulations, Sponsoring Agency will have
the primary responsibility for coordination of media coverage and liaison with
media sources and representatives concerning activities of the Task Force.
Sponsoring Agency shall endeavor to expose all Participating Agencies to
favorable media coverage opportunities.
3.9 Rules of Conduct.
3.9.1 All Participants willbe expected to abide by the rules of conduct
established by FEMA and the Sponsoring Agency.
3.9.2 The failure of a Participant to abide by the rules of conduct constitutes
may result in suspension or exclusion from the Task Force under Section 3.7
above.
3.10 Preparedness Activities.
3.10.1 Sponsoring Agency shall conduct Task Force management,
administration, training, equipment procurement and other preparedness activities
required by FEMA. Participating Agency and its Participants shall cooperate with
Sponsoring Agency and shall participate in the activities as necessary to achieve
Task Force preparedness goals and objectives.
3.10.2 Specific training activities to be conducted, respectively, by Sponsoring
Agency and by Participating Agency, including training, administration and
reporting requirements, are contained in Appendix "A".
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3.10.3 As established by System directives but subject to the availability of
federal funding, Sponsoring Agency shall procure and maintain required caches
of equipment and supplies. The contents of these caches shall be utilized for
deployments of the Task Force and, subject to federal rules and regulations, will
be made available for training activities of Sponsoring Agency and Participating
Agency. Participants shall use Task Force cache equipment and supplies only for
authorized purposes and shall exercise reasonable care to protect and preserve the
property against loss or damage. The Participating Agency shall be financially
accountable for any Task Force property that is lost or damaged due to negligence
or unauthorized use by the Participating Agency.
3.11 Notification Procedures and Other Communications.
3.11.1 Alerts and Activation.
3.11.1.1 Sponsoring Agency's commander/chief executive officer or
his/her designee shall determine whether the Task Force is capable of and
will respond to Activation Orders.
3.11.1.2 Participating Agency shall maintain at all times a "Point of
Notification" for receipt of notices from Sponsoring Agency concerning
possible deployments of the Task Force. The Point of Notification shall
include 24-hour telephonic and electronic capabilities. Information
concerning the Participating Agency Point of Notification shall be set
forth in Appendix "C".
3.11.1.3 Upon receipt of Alert or Activation Orders, Sponsoring Agency
shall give prompt telephonic and electronic notice to Participating
Agency's Point of Notification. The notice shall designate the Task Force
positions for which Participating Agency's Participants are being
requisitioned, the location of the assembly point, and to the extent known,
the nature and character of the Activation.
3.11.1.4 Participating Agency shall at all times maintain the capability of
providing requisitioned Participants for participation tfn a deployment of
the Task Force.
3.11.1.5 Upon receipt of an Activation Order for the Task Force,
Participating Agency shall cause the required Participants to respond to
the assembly point designated in the notice.
3.11.2 Mobilization.
3.11.2.1 All requisitioned Participants will respond to the designated
assembly point within [number of hours; also see Section 3.5.5] hours of
notification with all required personal clothing and equipment and
required documentation.
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3.11.2.2 Participating Agency will select its Participants through a pre-
established selection system that ensures the requisition is promptly filled
with fully qualified Participants.
3.11.2.3 Selected Participants will be subject to a pre -deployment medical
screening. Any Participant who fails the screening will not be deployed.
3.11.2.4 Sponsoring Agency retains the sole right to determine which
Participating Agency personnel, if any, will respond with the Task Force
when Activated.
3.11.3 Other Communications. Sponsoring Agency will remain in contact with
Participating Agency through the Participating Agency Point of Notification
during the period of Activation.
3.12 Critical Incident Stress Syndrome ("CISS") and Management.
3.12.1 Sponsoring Agency will have primary responsibility to provide CISS
training, intervention and support, before, during and after activation.
3.12.2 Costs incurred for unauthorized CISS activities are not eligible for
reimbursement.
4. GENERAL PROVISIONS
4.1 Effective Date. This Agreement shall be effective , 2010,
and when it has been duly and regularly authorized and executed by both parties.
4.2 Authority. As more specifically indicated above and below, this Agreement is
made (a) pursuant to the provisions of the Interim Final Rule or the Final Rule; and (b) under the
authority of [State] law, in furtherance of the purposes of the National Urban Search and Rescue
Response System,
4.3 Contents of the Agreement. Upon its execution, the Agreement consists of this
Agreement, along with the following Pi pendices and other attachments, if any:
4.3.1 Appendix "A" - The currently effective Memorandum of Agreement
between FEMA, the State of Florida, and Sponsoring Agency, by which City of
Miami Fire Rescue is appointed as and has agreed to serve as Sponsoring
Agency for the Task Force.
4.3.2 Appendix "B" - The federal regulations published on February 24, 2005 in
the Federal Register as the Interim Final Rule at Vol. 70, No. 36, pages 9182-
9203.
4.3.3 Appendix "C" — Point of Notification.
4.3.4 Appendix `D" — [Describe]
[Etc.; see the following sections of this Agreement for additional topics that may
be suitable for inclusion in appendices:
3.1.1 Information about Participants.
3.3.2.3 Participant compensation data.
3.4.1 Records to be provided by Participating Agency.
3.4.4 Participating Agency reporting requirements.
3.6.1 Participant clothing and equipment requirements.
3.10.2 Training activities, administration and reporting requirements.
3.11.2 Participating Agency's Point of Notification.]
4.4 Amendments and Termination.
4.4.1 Except as otherwise expressly provided, this Agreement may be modified
or amended only by another written agreement approved and executed by both parties,
and all such amendments will be attached to this Agreement.
4.4.2 Term and Termination. The Agreement shall continue in effect unless and
until terminated as provided in this Agreement. The Agreement may be terminated by
either party upon 30 days written notice, except that Participating Agency may not
terminate this Agreement without the written consent of Sponsoring Agency during any
time interval when the Task Force has been placed on Alert status or has been Activated
if the Alert or Activation affects Participants of the Participating Agency.
4.5 Miscellaneous Provisions.
4.5.1 The obligations of the Participating Agency set forth in this Agreement are
non -delegable and -may not be assigned to or assumed by any other person
without the prior written consent of Sponsoring Agency.
4.5.2 Except and to theextent federal law controls, this Agreement shall be
construed and enforced, as between the parties, according to the laws of the State
of Florida
4.5.3 No party shall engage in any conduct or activity in the performance of this
Agreement or participation in the System that constitutes a conflict of interest
under applicable federal, state or local law, rules and regulations.
4.5.4 Each party shall at all times observe and comply with all applicable
federal, state and local laws, rules and regulations.
4.5.5 Except as provided otherwise with respect to emergency notifications, if it
is necessary for the purposes of this Agreement for one of the named parties to
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give notice to the other named party, notice shall be in writing with the expenses
of delivery or mailing fully prepaid and shall be delivered by personal service or a
form of public or private mail service requiring proof of delivery. Notice is
effective upon personal delivery, or by mail service, on the date of either actual
receipt or five days after posting, whichever is first. Unless changed in writing in
accordance with this Section, notice shall be served on the party at the address
shown in Sections 1.1 and 1.2 of this Agreement.
4.5.6 Titles and section headings are for convenience only and are not a part of
the parties' Agreement.
4.5.7 Should any provision of this Agreement be determined to be invalid or
unenforceable under applicable law, the provision shall, to the extent required, be
severed from the remainder of the Agreement which shall continue in full force
and effect.
4.5.8 This Agreement and its provisions are binding upon and inure to the
benefit of the parties and to their respective successors in interest, provided,
however, this Agreement does not and will not bestow any rights or remedies
upon persons to whom an nnlawful delegation or assignment has been made by
Participating Agency.
4.5.9 This Agreement is made for the sole and exclusive benefit of the named
parties and their lawful successors in interest, and no other person or entity is
intended to, nor shall such other person or entity acquire or be entitled to receive
any rights or benefits as a third -party beneficiary of this Agreement.
4.5.10 Neither the United States of America or the State of Florida is a party to
this Agreement.
4.5.11 Each person executing this Agreement represents that: he/she was and is
lawfully authorized to sign the Agreement on behalf of the party he/she
represents;. execution of the Agreement was duly and regularly authorized by the
party's governing body; and, to the person's best knowledge and belief the
4`04ement is a binding and enforceable obligation of the t-arty on whose behalf
he/she acted.
4.5.12 Each party represents to the other: that the party has fully read and
understood all of the provisions of this Agreement including the Appendices and
other attachments, if any; that the party has secured and considered such legal
advice and other expert counsel as the party deemed necessary and advisable for
these purposes; and, that in agreeing to execute and become a signatory to this
Agreement the party has deemed itself adequately informed and advised as to all
of the risks assumed and obligations undertaken pursuant to this Agreement.
4.5.13 This Agreement, including the Appendices and attachments, if any,
constitutes the entire agreement between the parties and it supersedes any prior
agreements on this matter.
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5. EXECUTION
This Agreement was executed by the parties on the dates shown below.
Sponsoring Agency:
Date: CITY OF MIAMI FIRE RESCUE
Date: 1 %7e-,- _. %
Signature
PRINT Name
Title
Participating Agency:
CITY OF DAN'IA BEACH, FLORIDA, a
Florida municipal corporation
S,Iggnnatore
/p�,T.6ezz,A)/
PRINT �Name L Title: /imp'
(Irs+AN 1)2—a Or\
(1 1) //rj
12
ATTEST:
Priscilla A. Thompson
City Clerk
APPROVED AS TO FORM AND
CORRECTNESS:
Julie O. Bru
City Attorney
SPONSORING AGENCY
THE CITY OF MIAMI, a municipal
corporation of the State of Florida
BY:
City Manager
APPROVED AS TO INSURANCE
REQUIREMENTS:
Gary Reshefsky, Director
Department of Risk Management
I}
1-1-10,ENM )9 4r
PART VIII.
OTHER INFORMATION
FEMA
National Urban Search and Rescue Response System
US&R Task Force FY2010 Readiness Cooperative Agreement
I. PURPOSE
The U. S. Depa: to gent of Homeland Security (DHS) and the Federal Emergency
Management Agency (FEMA) are accountable to provide support and funding for the
maintenance and readiness of the National Urban Search and Rescue (US&R)
Response System. The purpose of this Readiness Cooperative Agreement is to
support the continued development and maintenance of a national urban search and
rescue capability.
Specifically, this agreement provides a mechanism for distribution of Cooperative
Agreement funding for certain purposes in preparation for US&R disaster response.
This Cooperative Agreement allows each Sponsoring Agency of a US&R Task Force
the opportunity to maintain a high standard and condition of operational readiness and
includes guidance on key areas for Task Force management to focus on continued
preparedness efforts.
This cooperative agreement provides direction to the US&R Task Force Sponsoring
Agency for the use of funding to provide: administrative and program management,
training, support, equipment cache procurement, maintenance and storage.
I1. BACKGROUND
DHS/FEMA, in cooperation with other Federal, State and local agencies created the
National US&R Response System to provide a national rescue capability that provides
lifesaving resources to victims of structural collapse. When this system was developed.
in 1990, there was limited capability in only a few States to perform this mission and no
resources were available for a coordinated national response.
In 1992, the Federal Response Plan (FRP) was published by FEMA and coordinated
activities with 26 Federal agencies. The Federal government's response to disasters
was classified into 12 Emergency Support Functions (ESF). ESF-9, Urban Search and
Rescue, was established with FEMA as the Primary Agency. FEMA maintains a
national consensus on standard operating procedures, organizational structure,
equipment, training and exercise requirements. Currently, 28 state and local
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Sponsoring Agencies in 19 states participate in the National US&R Response System
by making their Task Forces available for national disaster response.
DHS/FEMA had no organic heavy rescue capability of its own and realized the best
sources for US&R knowledge and skills reside at the State and local level. The National
US&R Response System was developed and continues as a Federal —State —local
partnership, based on a Memorandum of Agreement (MOA) and individual Response
and Readiness Cooperative Agreements. While the MOAs provide the basic
operational "Agreement" between DHS/FEMA, the State and Sponsoring Agency, the
individual Readiness Cooperative Agreement provides the mechanism for distributing
Federal funds to the Sponsoring Agencies of the 28 US&R Task Forces for continued
readiness efforts.
In December 2004, the National Response Plan (NRP) was published by DHS which
integrates the Federal Response Plan into the NRF. NRP has since been updated in
January 2008 and is now referred to as the National Response Framework (NRF). At
this time, ESF-9 was expanded to include urban, water -borne, wide area, aerial, and
land -based searchand rescue.
III. DHSIFEMA OBJECTIVES
DHS/FEMA, through the National US&R Program Office and Grant Programs
Directorate, shall:
1. Provide oversight and funding to US&R Sponsoring Agencies to manage and
administer Task Force affairs and activities in accordance with accepted
standard business practices.
2. Provide oversight and funding to train and exercise Task Force members and
other National US&R Response System personnel to safely perform assigned
US&R duties in accordance with established FEMAIUS&R approved standards
and guidance.
3. Providc,pversight and funding to acquire and maintain the equipment in
accordance with the US&R Equipment Cache List as approved by the FEMA
US&R Program Office.
4. Provide oversight and funding for the lease of space to provide offices, training
facilities and/or storage of vehicles and equipment, as needed.
5. Provide resources (e.g., staff, equipment, funding) to support readiness and
standby activities, subject to availability of funds (e.g., catastrophic planning,
technical assistance, mobilization exercises, etc.).
6. Provide a forum for discussion on strategic issues by hosting an annual
Sponsoring Agency Chief/Head meeting with the DHS/FEMA Administrator, or
designee.
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IV. APPROVALS
Advance approval must be obtained in writing from both the US&R Program Office and
the FEMA Grants Assistance Officer for the following (in accordance with Grants
Management Policy and 44 CFR Part 13 and 2 CFR Part 215):
• Approval for activities or expenditures not identified in the Task Force
narrative and budget, but are allowable within the scope of work for this
Cooperative Agreement (Le., budget changes);
• Requests for extension of the period of performance for this Cooperative
Agreement
• Requests for spending Cooperative Agreement funds prior to the beginning of
this period of performance ("pre -award costs")
Unauthorized expenditures may be denied and required to be reimbursed to
DHS/FEMA. Use of Cooperative Agreement funds provided through this agreement for
any activity that occurs outside the United States and its territories, is prohibited unless
authorized by the US&R Program Office, FEMA Grants Office and FEMA International
Affairs prior to incurring costs for the activity.
V. APPLICABLE LAWS AND POLICIES/ORDER OF PRECEDENCE
This award is subject to the laws and regulations of the United States. This Cooperative
Agreement incorporates the terms and requirements of any applicable Agency policies
and all US&R Program Directives issued by the US&R Program Office, including those
issued during the term of this Cooperative Agreement.
Any inconsistency or conflict in terms and conditions specified in the award will be
resolved according to the following order of precedence: public laws, regulations
(including the US&R Interim -Final Rule at 44 CFR Part 208), applicable notices
published in the Federal Register, Executive Orders, OMB Circulars, agency award
conditions, the terms and conditions of the Sponsoring Agency's Memorandum of
Agreement with FEMA, applica b DHS and FEMA policies, and US&R Program
Directives.
Some of the terms and conditions contained herein may contain, by reference or
substance, a summary of the pertinent statutes, regulations, Executive Orders, or OMB
Circulars. To the extent that it is a summary, such provision is not in derogation of, or
an amendment to, any such statute, regulation, Executive Order, or OMB Circular.
VI. COOPERATIVE AGREEMENT FUNDING
The FY 2010 Cooperative Agreements basic total for each Task Force is S1,041,900.
The US&R Program Office recommended and/or required allocations are outlined in
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Appendix A of this document. Additional funds allocated to specific Task Forces are
outlined in Appendix B and C of this document.
Each Task Force can apply for up to the amount allocated to their agency as shown in
Appendix B. All Sponsoring Agencies must submit supporting documentation with each
application.
The Period of Performance for the FY 2010 US&R Readiness Cooperative Agreement
funding is 18 months and is specifically identified in the Agreement Articles. Each Task
Force should submit budget plans covering only 12 months for salary expenses, lease
costs and scheduled training •costs Within the period of performance. However, the 18
month performance period is available for internal acceptance of funds and
procurement _of equipment and supplies.
Vii. DHS/FEMAIUS&R PROGRAM OFFICE RESPONSIBILITY
1. Review, approve, and adopt US&R-related products, including technical
manuals, operational procedures, training curriculum and supporting manuals,
meeting agendas and other requirements for the National US&R Response
System.
2. Coordinate and support meetings relating to the National US&R Response
System activities, to develop and implement policies, procedures and US&R
System documents.
3. Establish and disseminate policy and Program Directives for the National US&R
Response System based on 44 CFR Part 208 and with substantial involvement
and input from the partner sponsoring agencies and their members.
4. Determine annual funding levels for readiness activities.
5. Purchase equipment and deliver to USSR Task Forces, based on need and
available funding.
6. Review and/or approve expenditure reports, performance reports, personnel
records, training records, Task Force self -evaluation documents, equipment
cache and excess property inventories and other deliverables required by the
US&R Program Office.
7. Review and approve/disapprove in writing, in conjunction with the Grants
Assistance Officer, any cost deviations or budget revisions from those prescribed
in this agreement or from other DHS/FEMA established policies.
8. Implement the policy, criteria and procedure for Task Force evaluations.
Distribute an annual Task Force self -evaluation survey with a 90-day submission
23
suspense, on or about March 15i, for completion by the Task Forces. Conduct a
cooperative peer -based operational readiness evaluation program.
9. Track, disseminate, and consistently update the status of Operations and Work
Group recommendations to all System components.
10. Based on available funding, the US&R Program Office may activate Task Forces
for activities associated with scheduled NSSEs. Task Forces activated under
this section will be notified in advance, through written activation orders that will
provide authorization for travel and to carryout activities of the required
operations. Prior to any activities under this section, the US&R Program Office
will request cost estimates from identified Task Forces. This item would be
funded separately from annual Cooperative Agreement funding, but could be
either an amendment to this Cooperative Agreement or the Response
Cooperative Agreement.
VIII. SPONSORING AGENCY RESPONSIBILITY AND REQUIREMENTS
Under this Readiness Cooperative Agreement, the Sponsoring Agency shall use
funding to prepare the Task Forces under the following categories: Administration/
Management, Training, Equipment, and Storage/Maintenance.
A. ADMINISTRATION AND MANAGEMENT
1. Provide sufficient staff for management and administration of the US&R Task
Force day-to-day activities. This staff shall be responsible for program
management, grants management, financial management, administrative
support, training coordination and instruction, logistics management and property
accountability. These management responsibilities include, but are not limited to,
Task Force salaries and expenses coordination; record -keeping; inventory and
maintenance of the US&R Equipment Caches; communicating with Task Force
members and parties who support Task Force activities; and similar
management and administrative tasks.
2. Purchase equipment necessary to administer the Task Force. These items may
include but are not limited to, laptop and desktop computers, cellular
telephones/wireless PDAs, printers, scanners, copy machines, office furniture,
etc.
3. Recruit, train and maintain a roster of personnel to enable complete staffing of a
Type 1 US&R Task Force. Positions shall be staffed from within the Task Force
organization, unless prior approval is given by the Program Office. The rostered
staffing level shall be a maximum 210 personnel, plus up to 10% allowable
staffing overage, to address attrition, 1ST members, etc. The Task Force shall
pursue the goal to roster the minimum of 140 deployable personnel; two deep at
each of the positions required for a Type 1 configuration.
24
•
4. The Task Force shall equip, train, and maintain CBRNE Hazmat assets to
prepare the Task Force for limited hazmat capability for the core structural
collapse mission.
5. Ensure each Task Force member meets the necessary license, certification or
other professional qualification requirements of their assigned position. Further
ensure that the Task Force has the documentation on file to verify this
information.
6. Task Force may use funds to cover salary and travel for product research and
development efforts, when authorized by the US&R Program Office who will
coordinate with the Grant Programs Directorate, subject to available funding.
This may be authorized to keep apprised of cutting edge technology for
equipment used within the System.
7. Task Force may use funds to cover salary and travel to enable Task Force
personnel to collaborate with Federal, State, or other entities (e.g., other USSR
system asset(s), emergency responders) to enhance the capabilities of the
US&R system.
8. Ensure Task Force is prepared for ongoing OREs and completes an internal self -
evaluation operational readiness and preparedness survey as provided by the
National US&R Program Office. The completed electronic copy of the self -
evaluation shall be submitted to the US&R Branch Chief by June 1, oras
otherwise directed by the US&R Program Office.
9. Submit to DHS/FEMA Program Office the following items on one compact disk
(CD) by June 1st_
a. A current database of Task Force Personnel, in a format provided by the
Program Office
b. A current US&R Task Force Equipment cache database in a Microsoft
Access -compatible database format. This database shall include both
equipment caches.
c. A current Time! -Phased Force Deployment Data (TPFDD) Form ("Aircrft
Loading Data"), in a format provided by the Program Office.
10. Ensure funds are properly allocated, accounted for, and reported for those Task
Force members who serve as the Operations Group Chair, Work Group Chairs,
Sub -Group Chairs and Task Force Leader Representatives, as appropriate and
,authorized by the US&R Program Office,. These funds are intended to defray
personnel salary, backfill, travel and other administrative costs associated with
these positions for assigned Task Forces in accordance with Appendices C and
D.
11. Ensure timely reporting of expenditures for readiness activities carried out under
this agreement and timely delivery of Cooperative Agreement reporting. Refer to
Section IX, Reporting.
25
12. As funding allows, ensure personnel salaries and expenses relating to Task
Force administration, development and training preparedness activities are paid
in accordance with established Sponsoring and Participating Agency
policies/practices and in a timely manner, but no later than 120 days after
completion of a training exercise. Appropriate personnel records shall be kept in
accordance with 44 CFR Part 13 (FEMA's codified version of OMB Circular A-
102), and 2 CFR Part 215 (OMB Circular A-110).
13. Compliance with the NIMS is a condition for award of this Cooperative
Agreement as outlined in Homeland Security Presidential Directive 5, Managing
Domestic Incidents. Sponsoring Agencies must comply with the NIMS
Implementation Activities established annually by FEMA. Sponsoring Agencies
must report NMS compliance activities in accordance with State and local NIMS
guidance. Additionally, a certificate of completion for each required course must
be located in each US&R task force member's personnel file for each required
course. The following independent study courses are required for all task force
members: IS-100, IS-200, IS-700 and IS-800. State offered NRF NIMS or
equivalent certificates may be substituted for those courses offered on the FEMA
NIMS website provided they meet Federal NIMS standards. For further
information on compliance and guidance, refer to the following website:
http://www.fema.qov/emergencytnimstindex.shtm.
14. Attend DHS/FEMA-sponsored or DHS/FEMA-approved US&R meetings,
conferences, and training sessions, to include Task Force Leader meetings, the
12 standing US&R Work Groups, Operations Group, Ad Hoc Work Groups and
Sub -Groups, 1ST training/meetings, workshops, Sponsoring Agency Chief/Head
Meetings or others as directed by the US&R Program Office as they relate to the
National US&R Response System. Other activities include on -site peer ORE of
other Task Forces, quality assurance oversight of FEMA-sanctioned training
courses, training with other Task Forces, grants management training, SUSAR
Alliance meetings and activities, and research and development for equipment,
as directed by the US&R Program Office. The US&R Program Office is allocating
certain funds as identified in Appendix A for travel. All travel funds shall be
accounted for under Management and Ayrninistration and/or Training at the Task
Force level.
15. Provide complete medical evaluations and immunizations to as many Task Force
members as possible (as defined by the US&R Medical Work Group). Medical
screening should be conducted, at a minimum, on a triennial basis for each Task
Force member. The medical evaluation shall become part of their personal
medical record. Please refer to US&R Program Directive 2005-008 or successor,
Task Force Medical Screening or a more current directive issued by the US&R
Program Office.
B. TRAINING
26
1. Provide US&R-related or US&R-required training for Task Force personnel, -
including the delivery of local US&R training courses or other courses specifically
required by the US&R Position Descriptions or the US&R Program Office.
2. As funding permits, conduct at least one Task Force mobilization or deployment
exercise during the Cooperative Agreement period of performance. Task Force
is encouraged to exercise as many Task Force members as possible during this
cooperative agreement.
a. A Federal Task Force deployment during the period of performance would
satisfy this requirement, as Tong as the Activation Order is filed with the
Cooperative Agreement.
b. Non -Federal Task Force deployments could satisfy this requirement, but
must be authorized by the Program Office in writing.
c. If a Task Force is deployed, those funds originally set aside for a
deployment exercise may then be used for other US&R approved items
within the same budget category. This change must be addressed in their
Semi -Annual Performance Report. A budget change is only required
when funds are moved to another program budget category.
3. Submit an after -action report within 90 days of the completion of a mobilization or
deployment exercise or a training activity with duration of more than 24
consecutive hours. Send the report to the attention of the US&R Branch Chief
and written in a format where lessons learned may be shared with other task
forces in the National US&R Response System.
4. Ensure training and exercise activities of the Task Force meet National US&R
Response System standards, requirements and certifications. Ensure training
records for all Task Force personnel are kept in a central, secure location.
5. Provide funding for expenses related to the acquisition, maintenance, training
and certification of US&R Canine Search Teams. This statement is not related to
the funding provided to host Canine Evaluations.
6. Wt::n authorized, ensure funds are distributed in support .pi Task Forces hosting
a Canine Evaluation, as stated in accordance with Canine Evaluation schedules
identified in Appendix F. When funding for the Canine evaluations exceeds
actual costs, the excess allocated funds may be redirected to other US&R
Program activities that support the Task Force's Canine program under Item 5. If
remaining funds are used to cover costs under Section VIII, A, Item 14, include
items and their cost in their Semi -Annual Performance Report submission.
7. Provide third party Grants Management Training to assigned Task Force Grant
Managers and Assistants who have not previously attended training. Grant
Management Training is mandatory for all US&R Grants Managers and
Assistants. Grant Management Training is optional, but highly recommended, for
US&R Program Managers and other key personnel assigned to US&R
administrative duties. Personnel should attend training from a facility that
27
provides a "Grants Certificate Program" and/or the US&R Grant Manager
Course. The Task Force shall submit information regarding the program or
classes to the Grants Assistance Officer for written approval prior to registering
or attending any classes. The Grants Assistance Officer may be contacted for
further information on classes offered. Examples of some Grants Management
courses offered are as follows:
a. Managing Federal Grants and Cooperative Agreements for Recipients,
b. Uniform Administrative Requirements: OMB Circular A-102 and 2 CFR
Part215
c. Cost Principles: 2 CFR Part 220 (A-21), 225 (A-87), 230 ((A-122), and
FAR 31.2
d. Applying for Federal Grants and Cooperative Agreements
e. How to Prepare the Application Budget
• f. Business Management Systems for Recipients
g. Audit of Federal Grants and Cooperative Agreements.
Every effort shall be made to attend continuing education by Task Force Grant
Managers and Assistants during the cooperative agreement to stay current with
regulation updates/changes.
8. Provide Microsoft (MS) Access database and MS Excel training, as needed to
US&R Logistics and Program Management personnel to maintain personnel,
equipment, grant, financial and accountability records. Program Managers are
authorized to use readiness funding to provide "beginner", 'intermediate" and
"advanced" MS Access Database and MS Excel training to Program
Management personnel.
C. EQUIPMENT
1. The Sponsoring Agency is authorized to purchase equipment as listed in the
most current approved DHS/FEMA Task Force Equipment Cache List. Task
Force personnel are reminded and directed not to exceed quantity caps (per
cache) as listed on the cache list and the current manufacturer's suggested retail
price (with documentation), unless prior approval is received by the US&R
Program Office. Task Forces must follow Sponsoring Agency procurement
regulations, which accordance with 44 CFR Part 13 or 2 CFR Part 215 :fo
ensure reasonable prices are obtained. Special consideration is given to Task
Forces to purchase other equipment items in support of training, administrative,
and warehouse/maintenance needs. Any other equipment not specified above
can only be purchased after receiving written approval from the Program Office.
2. When funding is provided, ensure that funds are made available to purchase and
maintain medical response kits for the IST Medical Officer assigned to the Task
Force identified in Appendix C.
3. Specific Task Forces are also identified and provided funds in the amount of
$10,000 covering costs to maintain the IST "B". and "C" cache. Cooperative
Agreement regulations apply to these funds and shall not be transferred to a
Participating Agency.
28
4. All equipment must be tracked as to its origin. Equipment that is procured
with this Cooperative Agreement funding shall be identified with the source,
cache list number and Cooperative Agreement number, in accordance with
44CFR, Part 13 or 2 CFR Part 215. Additionally, Federal equipment shall be
properly identified as to the ownership and funding source (including Agency
name and Cooperative Agreement number or Disaster/contract number). The
tracking can be accomplished through procurement documents, through fields in
a database, or spreadsheet. It is the responsibility of each Task Force to
develop a method of tracking in accordance with this section. However, it should
be a system that will easily and quickly identify the information. Additionally, all
procurement records and receipts should be cross-referenced and coded with
the Cooperative Agreement number, cache list item number, Statement of Work
section, or source of origin, or a system to easily and quickly identify the
information.
5. No transportation equipment is authorized for purchase as part of this
Cooperative Agreement unless authorized by the USSR Branch Chief and
Grants Assistance Officer in writing.
6. Equipment and prime mover vehicles purchased with Federal funds or provided
by DHS/FEMA shall be for the use of the US&R Program and shall not be used
for normal day-to-day operations of the Sponsoring or Participating
Agency. However, this requirement does not preclude the Sponsoring Agency
from using this equipment or vehicles on a local, regional or State disaster
response or under other exceptional circumstance. The US&R Branch Chief
shall be notified immediately in writing of any exceptional use of the two US&R
Equipment Caches that diminish the response capability of the Task Force. The
Sponsoring Agency is responsible for replacement, re -supply and or repair of
equipment used or consumed during activities not associated with the National
US&R Response System and return to an immediate state of readiness.
7 Task Forces are not authorized to purchase equipment with funds
authorized through the DHS/FEMA Assistance to Firefighters Grant
Program. However, this does not preveyt the Sponsoring Agency from applying
to the DHS/FEMA Assistance to Firefighters Grant Program for other costs or
items not associated with the US&R Program.
Title for the original cache, vehicles, and all equipment purchased under the
Cooperative Agreements reside with the Task Forces (44 CFR Part 13).
9_ Title to the new DHS (i.e., "Second Cache") Equipment Cache purchased and
distributed to the Task Forces by FEMA resides with DHS/FEMA.
10. Title for any equipment purchased under this Cooperative Agreement directly by
a Task Force shall reside with the Task Force.
29
11. Should the Task Forces transfer, sell, or scrap any of the equipment and/or
vehicles, they are required to first ask for prior written approval and disposition
instructions from the US&R Program Office and Grants Assistance Officer for all
Federally -furnished equipment and all grant -purchased equipment with a single
item value over $5,000 (in accordance with 44 CFR 13.32(e) and FEMA Manual
6150.1, dated July 1996, or current edition at time of disposition).
12. For the purpose of accountability and safety, US&R Task Forces are authorized
to purchase an ID System, as long as they meet the requirements outlined in
US&R Program Directive 2006-019 — Accountability and Medical Information
Cards.
D. MAINTENANCE AND STORAGE
1. Maintain an accountability of property acquired under Cooperative Agreement
funding, distributed Federal property and acquired Federal Excess Property.
Provide an annual report to DHS/FEMA on the status of Federal property each
year, as part of the database submittal to the US&R Program Office Branch
Chief. Conduct an inventory of Federal property and property acquired under
Cooperative Agreement funding, in accordance with 44 CFR Part 13 or 2 CFR
Part 215_
2. Provide manufacturer's recommended maintenance and repair to US&R
equipment acquired and specifically identified on the DHS/FEMA'approved
US&R Equipment Cache Lists. Also, provide maintenance and repair to any
supplemental equipment as approved by DHS/FEMA, which was purchased with
DHS/FEMA funding and delivered to the Task Forces, purchased during a US&R
field response, or was acquired with DHS/FEMA approval through the Federal
Excess Property Program. Task Forces are expected to perform routine
maintenance of equipment to maintain a state of readiness.
30
3. As part of the operational readiness of each Task Force, all US&R equipment
shall be maintained in an immediate state of readiness in a cache storage facility
or facilities. This may include planning and engineering and other costs for
development, maintenance, and/or lease of storage facilities and associated
equipment for US&R equipment and supplies. Any costs for upgrades to existing
warehouse facilities associated with this funding must be included in the budget
narrative or submitted as a budget change and be approved by the Program
Office and the Grants Assistance Officer prior to the start of any work. Task
Force personnel are reminded, if they are relying totally on the Cooperative
Agreement for funding leased warehouse space, they are not permitted to enter
into agreements for longer than the Period of Performance of the Cooperative
Agreement. However, contracts can be written with an available funds clause or
"option" years for protection. This Cooperative Agreement may not be used for
funding new capital construction. However costs associated with leasing,
upgrading, minor renovations and modifications of existing warehouse facilities
that do not change the footprint of the structure are permitted.
4. The day -to -clay repair, maintenance, storage and administrative costs for all
equipment purchased or provided by DHS/FEMA will be accomplished via this
Cooperative Agreement funding provided and in accordance with the cost
principles (2 CFR, Part 225). Refer to 2 CFR Part 225 or 2 CFR Part 230(Cost
Principles) for specific guidance on purchasing insurance.
IX. REPORTING
The Sponsoring Agency shall use the following procedure for reporting. There
are several types of reports required for this agreement. Refer to Appendix E for
specific instructions and points of contact to submit all reports and deliverables.
A. REQUIREMENTS
1. Task Force Self -Evaluation: as identified in Section VIII, Subsections A.8 of
this document is by June 1st (or when otherwise directed by the US&R Program
Office).
2. Personnel and Equipment Database CD submittal: as identified in Section
VIII, Subsections A. 9 and D. 1. Provide DHS/FEMA with an updated database
of the Task Force Personnel and the US&R Equipment Cache in a Microsoft
Access database program. Also provide a current Task Force Phased
Deployment Data (TFPDD) Form, in a format provided by the Program Office.
Copy files onto one CD and forward the disk to the US&R Program Office by
overnight carrier. This CD shall be submitted with a cover letter addressed to the
US&R Program Office Branch Chief by June 1st.
31
3. The Semi -Annual Performance Report is due to the DHS/FEMA USSR
Readiness Cooperative Agreements Project Officer for the duration of this
agreement and is a'written report providing a narrative and expenditures, as
explained below.
a. The Sponsoring Agency shall electronically send the first report semi-
annually by January 30th (covering the time period ofJuly lst through
December 31 st) and the second by July 30th (covering the time period of
January lst through June 30(h) of each year until the Cooperative
Agreement is closed.
b. The Performance Report shall include Task Force accomplishments and
the total budgeted, expenditures and balance for the Cooperative
Agreement funding within the following areas:
Administration/Management, Training, Equipment, and
Maintenance/Storage.
c. Performance Narrative and Funds Report (FEMA Form 089-11) shall be
used.
d. All changes, whether requiring prior approval or not, shall be noted in the
Performance Reports and closeout documents.
e. The Final Performance Reports are to be emailed to the US&R Program
Office and DHS/FEMA Grants Management Branch. Addresses listed in
Appendix E.
•
4. The Federal Financial Report (FFR) SF-425, also referred to as the quarterly
financial report, is due within 30 days after each quarter ends. This form is
accessible through the Department of Health and Human Services (HHS)
SMARTLINK System and will be used in lieu of the PSC 272 forms. After
completing SF-425 either manually or through SMARTLINK, the document must
be printed, scanned, and emailed as a .PDF document through the Grant
Management System (GMS).:. This report is required every quarter, thirty (30)
days after the end of each quarter, including partial calendar quarters, whether
funds are drawn or not from the Health and Human Services (HHS) SMARTLINK
System. Future awards and fund draw downs may be withheld if these reports
are delinquent. The quarters are separated as follows: October through
December, January through March, April tr: hough June, and July through
September.
Reporting periods and due dates:
• October 1 — December 31; Due January 30
• January 1 — March 31; Due April 30
• April 1 — June 30; Due July 30
• July 1 — September 30; Due October30
OMB has directed that the Federal Financial Report (FFR) SF-425 replace the
use of the SF-269, SF-269A, SF-272, and SF-272A, which will no longer be
available after October 1, 2009. The SF-425 is intended to provide Federal
agencies and grant recipients with a standard format and consistent reporting
requirements throughout the government.
32
5. Financial and Compliance Audit Report. Recipients that expend $500,000 or
• more of Federal funds during their fiscal year are required to submit an
organization -wide financial and compliance audit report. The audit must be
performed in accordance with the U.S. General Accountability Office,
Government Auditing Standards, located at
http://www_gao.gov/qovaud/ybk0l.htm, and OMB Circular A-133, Audits of
States, Local Governments, and Non -Profit Organizations, located at
http.Wwww.whitehouse.goviomblcirculars/a133/a133.html. Audit reports are
currently due to the Federal Audit Clearinghouse no later than nine months after
the end of the recipients fiscal year. In addition, the Secretary of Homeland
Security and the Comptroller General of the United States shall have access to
any books, -documents, and records of recipients of FY 2010 Cooperative
Agreement assistance for audit and examination purposes, provided that, in the
opinion of the Secretary or the Comptroller, these documents are related to the
receipt or use of such assistance. The grantee will also give the sponsoring
agency or the Comptroller, through any authorized representative, access to, and
the right to examine all records, books, papers or documents related to the grant.
B. CLOSEOUT REPORTS
The scope of work approved for the Cooperative Agreement must be completed within
the Period of Performance. The task force will have 90 days after the Period of
Performance to complete the final payments, and prepare the closeout documents. If
unable to complete the closeout process by the due date; the task force must contact
the Grant Programs Directorate and Program Office to request an extension of the
closeout period. At a minimum the following closeout documents must be submitted:
1. Cover Letter — Should address the closeout of the Cooperative Agreement and
the number. Please note any items that are not applicable. if the equipment
and/or supplies are maintained by the Task Force then they will need to include a
statement that the equipment/supplies will be used for their intended purpose of
the Croperative Agreement, over the life cycle of the equipmet/suppiies.
2. Final Performance Report should include a summary of qualitative
accomplishments that the Cooperative Agreement has made for the duration of
the grant period. Quantitative data may be used to support any impact
statements. The report should be broken out into the four (4) program
categories: Administrative/Management, Training, Equipment, and
Storage/Maintenance.
3. Final Federal Financial Report (FFR): A new FFR is provided as an
attachment along with the instructions. A standard government -wide FFR (SF-
425) is now required, in lieu of the FF20-10 or SF 269A (Short Form).
33
4. Equipment Inventory: This form is required if items purchased with Federal
grant funds has a current fair market value of $5,000 or higher, per single item
must be reported (copy of form attached). If the Task Force does not have any
items to report that meet the threshold, provide a copy of the form noting such or
provide a statement in the Performance Report or Cover Letter to indicate the
same information. Provide a statement expressing the intent to continue use of
Federally- Furnished Property for the Federal US&R Program, as noted in
the most recent equipment CD submission.
5. Inventory of Unused or Residual Supplies purchased with Federal grant
funds, which in the aggregate exceed $5,000 must be reported (copy of form
attached). If the task force does not have any residual supplies in the aggregate
that exceeds $5,000, provide a copy of the form noting such or provide a
statement in the Performance Report or Cover Letter to indicate the same
information.
6. Patent/Invention Disclosure, if applicable (Form Attached). Provide a copy of
the completed form if applicable. If the Task Force does not have any patents or
inventions provide a copy of the foram noting such or provide a statement in the
Performance Report or Cover Letter to indicate such.
7. Audit Requirements: There are requirements and rights for audits pursuant to
the Cooperative Agreement terms and conditions. All grantees must follow the
audit requirements. of OMB circular A-133, Audits of States, Local Governments,
and Non -Profit Organizations. The OMB Circular states that grantees who
expend $500,000 or more in Federal funds (from all Federal sources within their
fiscal year) must have a single audit performed yearly in accordance with the
circular. If the Task Force falls under this category they must submit a copy
of their Single Audit Report along with their Closeout Documentation. In
addition it is a requirement to send a copy of the Audit to the Single Audit
Clearinghouse. The Single Audit Report is required to be reviewed during the
closeout process. FEMA retains the right to negotiate any shortages or findings
found in the audit reports, disallow costs and recover funds on the basis of an A-
133 single audit, other audit or other review.
8. Refund Checks: 1f appropriate, a check should be made payable to FEMA to
return any Federal funds drawn under the Cooperative Agreement but not
expended. This may also include interest earned in excess of the allowable $100
for State, Local, and Indian Tribal Governments, or $250 for all others that are
allowable for administrative expenses, or any other appropriate financial
adjustment due FEMA, including Audit adjustments.
9. Record Keeping/Retention: Retain records pursuant to the grant conditions.
Grant records should include a copy of the award document, grant agreement
articles, ledgers, documentation of expenditures, documentation -copies of
cancelled checks, paid invoices, payrolls, T&A records, contract records, etc. As
a reminder all Single Audits must be completed covering the period of
performance for the grant and all Single Audit Findings must be resolved prior to
34
the final closeout of the Cooperative Agreement. Upon completion of all required
actions, the submission of all required items, and any appropriate financial
adjustments and payments, FEMA will advise the Task Force in writing when the
award can be considered closed out. This information must be kept for three
years after the date of submission of the final closeout documents or later date if
the sponsoring agency requires a longer record retention period. See 44 CFR 13
and 2 CFR 215 for further information about the items in this paragraph. It is
generally three years from the submittal of the final closeout documents, but may
be longer if there are audit findings or the audit covering the period of
performance for the Cooperative Agreement has not been completed.
C. TIMELINES
1 _ Task Force Self -Evaluation: on or about June 15t, or as directed by the
Program Office (Task Forces shall return the forms 45 days after receipt
from the Program Office)
2. Personnel and Equipment Database CD: due June 15t to US&R Program
Office only.
3. Quarterly Federal Financial Report (FFR): Submit the Federal Financial Report
Form FFR (SF-425) quarterly, within 30 days after the quarter ends. (Due by
January 30, April 30, July 30 and October 30). This form is accessible through
the HHS SMARTLINK System.
4. The Semi -Annual Performance Report: due by January 30 and July 30 each
year during the Period of Performance.
5. Final Performance Report: due to DHS/FEMA within 90 days after the Period
of Performance expires.
6. The Final Federal Financial Report (FFR), SF-425, due within 90 days after the
Period of Performance expires.
7. Equipment Inventory and Inventory a Unused or Residual Supplies due
within 90 days after the Period of Performance expires.
8. Final Payment/Unexpended Funds: due within 90 days after the Period of
Performance expires.
Task Forces must be current with all reports at the time of award of this Cooperative
Agreement.
X. TIME IS OF THE ESSENCE
35
DHS/FEMA is providing an annual Readiness Cooperative Agreement and it is
strongly recommended that the Sponsoring Agency seek expedited approval for the
acceptance and management of the Cooperative Agreement. The US&R Program and
Grants Offices acknowledge the time -sensitive nature of processing and awarding the
Cooperative Agreement and will make every effort to expedite the process. The time
frame provided by DHS/FEMA must be strictly adhered to. The U.S. Congress is
closely scrutinizing the timely spending of Readiness Cooperative Agreement funds and
failure to meet necessary requirements and time frames may result in the loss of
funding for this and future Cooperative Agreement periods.
XL PROCEDURE TO COMPLETE APPROVAL OF COOPERATIVE AGREEMENT
1. The US&R Program Office and Grant Programs Directorate will review the Task
Forte's Cooperative Agreement application. Once approved, the Grants
Assistance Officer will send four copies of the obligating document, FEMA Form
40-21, to the Task Force Sponsoring Agency for signature. If the cooperative
agreement is processed through the web -based Grant Management System
(GMS), the documents will be available online.
2. The Task Force Sponsoring Agency is required to obtain the proper original
signature on each document and return three signed FF 40-21 documents to the
Grants Management Branch as instructed. Keep one signed original for Task
Force records. Include a cover letter in an acceptable format when returning the
FF 40-21.
The Task Force Sponsoring Agency is responsible for ensuring the original
application package and subsequent FF 40-21 are signed and received by the
Grants Management Branch deadlines. Please use the tracking number
provided by ovemight carrier to ensure timely delivery.
Appendices:
A Cooperative Agreement Funding — Recommended Allocations
B Task Force Allocations and Budget Totals document
C Administration Budget
D List of -Is -York Group Chairs
E Summarized Spreadsheet of Deliverables
F US&R Annual Activity Calendar 2010
36
pP&4DfV "
Thursday,
February 24, 2005
Part III
Department of
Homeland . Security
Federal Emergency Management Agency
44 CFR Part 208
National Urban Search and Rescue
Response System; Maximum Pay Rate
Table, National Urban Search and, fitescue
Response System (US&R); Interim 'Final
Rule and Notice
9182 Federal Register/Vol. 70, No. 36/Thursday, February 24, 2005/Rules and Regulations
DEPARTMENT OF HOMELAND
SECURITY
Federal Emergency Management
Agency
44 CFR Part 208
FUN 1660-AA07 (formerty 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.
SUMMARY: This interim rule standardize
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 t 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.
Concurrently we 2 are publishing as a
Notice in this issue of the Federal
Viewing Comments: You may view
comments and background material at:
http://www.epa.gov/feddocket or http:/f
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 Tam illow, Federal Emergency
Management Agency, Emergency
Preparedness and Response Directorate,
Department of Homeland Security, 500
C Street, SW., mom 326, Washington,
DC 20472, (202) 646-2549, or (e-mail)
mike.tamillowtdhs.gov.
SUPPLEMENTARYINFORMATION:
s 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
Register a Maximum Pay Rate Table on Proposed Rule, and changes resulting
which we also request comments. from FEMA's integration into the as needed,
DATES: This interim rule is effective Department of Homeland Security. The FEMA established the National Urban
February 24, 2005. We invite comments process for creating and updating the Search & Rescue Response System
on this interim rule and the Maximum Maximum Pay Rate Table (Table), (System or US&R) under the authorities
Pay Rate Table published separately which establishes the maximum rates cited. The System provides specialized
today as a Notice in this issue of the that DHS will pay for certain medical, lifesaving assistance during major
Federal Register. We will accept engineering, canine handling and disasters or emergencies that the
comments on both until April 11, 2005. backfill services, is described in • President declares under the Stafford
ADDRESSES: Mail: When submitting § 208.12. The Maximum Pay Rate Table, Act. US&R operational activities include
comments by mail, please send the which was mentioned but not published locating, extricating and providing on -
comments to the Rules Docket Clerk, in the Proposed Rule, is,incorporated in site medical treatment to victims
Office of the General Counsel, Federal the Interim Rule, and_n'lished trapped in collapsed structures, victims
Emergency Management Agency, 500 C concurrently with this Interim Rule as a of weapons of mass destruction events,
Street, SW., room 840, Washington, DC Notice. Because the Maximum Pay Rate and when assigned, performing incident
20472. To ensure proper handling, Table was not published previously and command or other operational activities.
please reference RIN 1660—AAO7 and will become a part of the National Created in consultation with State
Docket No: DHS-2004-0010 on your Urban Search and Rescue Response emergency management agencies and
correspondence. This mailing address System final rule, we are asking for local public safety agencies, the System
may also be used for submitting public comment both on the Table and is built around a core of Sponsoring
comments on paper, disk, or CD-ROM. the Interim Rule. Agencies prepared to deploy US&R Task
Hand Delivery/Courier: The address Section 303 of the Robert T. Stafford Forces s immediately and initiate US&R
for submitting comments by hand Disaster Relief and Emergency operations at DHS's direction. Members
delivery or courier is the same as that Assistance Act (Stafford Act), 42 U.S.C. of the Task Forces, also referred to as
for submitting comments by mail. 5149, authorizes the President of the "System Members," may respond as
United States to form emergency
support teams of Federal personnel to $ The US&R System comprises 28 Task Forces in
be deployed in an area affected by a 19 States. A full Task Force consists of 70 System
major disaster or emergency. The "' Members, three deep (designed for 210 members)
President delegated this function to the Opecuillytrained end equipped to find, extricate.
and rovide initial medical rare to victims of
Sponsoring Agencies are State or local
government agencies that have signed Memoranda
of Agreement with DHS to organize and manage
US&R Task Forces.
=Throughout the preamble to this rule the temss
"we" and "our" refer to and mean the Department
of Homeland Security. "You" refers to the reader.
February 28, 2003, the President
amended E.O. 12148 to transfer the
FEMA Director's delegated authority to
the Secretary of Homeland Security, and
trader 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
Director of the FEMA under Executive P
collapsed buildings, weapons of mass destruction,
Order (E.O.) 12148. Under E.O. 13286 of as well as to perform other assigned duties.
Federal Register /Vol. 70, No. 36 / Thursday, February 24, 2005 /Rules and Regulations 9163
part of Joint Management Teams (JMT) 1
or other overhead or technical teams, or
as individual resources.
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
The National Urban Search and
Rescue Response System presently
comprises 26 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.?
DHS provides financial support in the
form of grants or Cooperative
Agreements e (Grants) to each of the
rA 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
adrninistmtive support for US&R and NDMS
resources, and to pravicla¢echnical advice and
assistance to State and'.!;tUU governments.
s The term "Temporary Excepted Federal
Volunteer" means that a System members status is
temporary' 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.
5A 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.
'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 es volunteers,
',Cooperative Agreements are similar to grants,
but differ from grants in the amount of government
cooperation and involvement in the
implementation of the agreement
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.° Task Forces also must
maintain minimum training
requirements that DHS prescribes."
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.
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
s The Task Forces also respond to disasters and
emergencies in their borne states as State resources.
DHS does not normally and directly reimburse
Sponsoring Agencies of the Task Farces 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 instate 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 hum$uitariaa assistance abroad
trader 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.
..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.
",DHS enters into a Preparedness Cooperative
Agreement with sack -Sponsoring Agency to provide
Federal funding to develop and maintain System
resottrce (personnel, equipment and supplies)
of the rule, and a Response Cooperative
Agreement," as described in subpart C
of this rule. These new, standardized
agreements will document our
relationship with the Sponsoring
Agencies." 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.
References in the Preamble to Parts,
Subparts or Sections
Throughout the preamble and rule,
references to part, subpart, or sections
(as "section" or "§ ") 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,
SubpartB 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,=' and
acquire and maintain a uniform cache of
equipment and supplies.
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.
capahrlities and readiness for operations, including
setsa jig.
0 When DHS activates a Task Force it provides
Federal funding for the Task Force's response under
the terms of the Response Cooperative Agreement.
ra Following adoption of the final rule, DNS
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.
+• Sections 305(a) and 6211c) 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 brown as
mobilization exercises. During these periods, they
are not "Activated" within the meaning of 5208.2
of the Wile 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 t 208.24(b) of the Wile.
9184 Federal Register / Vol. 70, No. 36 / Thursday, February 24, 2005 / Rules and Regulations
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
§ 208.62, Appeals.
A glossary of defined terms that we
Sectional Analysis
Section 208.33 sets forth the
principles under which we will
reimburse Sponsoring Agencies for
participating in Alerts 15 and
Activations.la Subsection (a) expresses
our policy that participation in Alerts
and Activations be as cost neutral as
possible to Sponsoring Agencies and Agencies for overtime costs that might
Participating Agencies. This not have been incurred but for the
commitment is critical to avoid putting Federal deployment. Section 7(k) of the
local fire departments, which are the Fair Labor Standards Act (section 7(k))
predominant sponsors of the Task exempts public safety organizations
Forces, at risk for the cost of providing from paying their employees overtime.
emergency services outside of their under certain circumstances. As
respective jurisdictions. Payments are interpreted by Department of Labor
subject to 44 CFR part 13, particularly ,regulations and court decisions, the
§§ 13.21 (payment) and 13.22 (allowable : iechon 7(k) exemption does not apply
cost). 44 CFR 13.22 incorporates various unless the employee in question is
Office of Management and Budget trained in fire protection, has the legal
(OMB) circulars that address allowable authority and responsibility to engage in
cost. However, if there is a conflict fire suppression, is employed by a
between this rule and 44 CFR part 13 or public safety agency engaged in fire
the OMB Circulars, this rule controls. suppression and actually engages in fire
Section 208.39 explains how we will suppression at least B0 percent of the
compensate -Sponsoring Agencies for -timAfter reviewingDepartment of Labor
personnel costs during Activations. P
When we deploy System Members, regulations relating to section 7(k) and
relevant court decisions, we are
uncertain whether the rescue activities
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 adopte
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
use throughout the Interim Rule and in deployment just as they would if they
subpart A appears in § 208.2. A sub- were not Activated.
glossary of defined terms used 208.32 Section 208.39(a) of this part provides
(subpart C) appears in that subpart. 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
§ 208.39.
Section 208.39(b) of this part speaks
to how we compensate Sponsoring
rsAlert means the status of a System resource's
readiness when triggered by en Alert Order
. indicating that DHS may Activate the System
resource.
"Activation means the status of a System
resource placed at the direction, control and
funding of DOHS -in response to, or in anticipation
of a presidential declaration of a major disaster or
emergency under the Stafford Act.
+rin 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.
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,
d and reimburses Sponsoring Agencies for
regular wages and overtime wages as
described in §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.
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 18 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 Assernbly,2e or some other
point. This reimbursement procedure is
known as "portal to portal" pay.
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
ra Section 208.40(bl addresses reimbursement for
various differentials paid by Sponsoring Agencies.
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.
sOThe Point of Assembly is the location where a
Task Force assembles before departure in response
to an activation order.
Federal Register /Vol. 70, No. 36 / Thursday, February 24, 2005 /Rules and Regulations 9185
this initial period involves packaging Management Teams and other overhead which establishes a minimum hourly
the Task Force for transport, loading or technical teams. As a result, the term wage for employees and requires
and unloading equipment, attending "System Member" is a more accurate employers to pay overtime wages for
briefings, receiving and adjusting to and comprehensive term to describe hours worked above the statutory
changes in operational objectives, individuals who participate in System maximum. It is also related to the
establishing the base of operations and activities; and the term "Task Force Portal -to -Portal Act of 1947, which
initiating the search for Live victims. Member" is best used to describe a requires that time spent "walking,
Once the search begins, we control Task System Member who is Activated as riding, or traveling to and from the
Force activities during the entire 24- part of a Task Force. We have corrected actual place of performance of the
hour period and Task Forces must be the usage of these terms in the principal activity or activities which
available for immediate response at any SUPPLEMENTARY INFORMATION to the such employee is employed to perform"
time. Interim Rule. is not compensable time under the
Section 208.39(g) provides for the In certain parts of the SUPPLEMENTARY FLSA unless it is compensable by
reimbursement of Backfill 21 expenses. INFORMATION to the Proposed Rule, we contract, custom, or practice. The
The National US&R Response System also used the term "US&R Task Force," general Federal rule regarding travel
depends upon the voluntary rather than "Sponsoring Agency," to mileage is: commuting to and from
participation of public safety agencies. denote the agency or entity with which work, that is, between permanent
We recognize that these public safety DHS has entered into legal and financial residence and permanent duty station,
agencies may be short-handed when agreements with respect to the US&R is a personal expense. The employee is
some of their personnel are away on a Task.Forces. We have corrected the expected to be at work; how the
Federal deployment. If a public safety usage of these terms in the employee chooses to get there is entirely
agency ordinarily Backfills a position in SUPPLEMENTARY INFORMATION to the his or her own business. 27 Comp. Gen.
situations where a regular employee is Interim Rule. 1 (1947).
unavailable for a period of time similar Finally, in the SUPPLEMENTARY There are exceptions to the general
to that spent on a US&R deployment tNFORMATION to the Proposed Rule, we rule if the travel is not ordinary and is
(e.g., Family and Medical Leave, described the reimbursable period spent outside the workday to and from
participation in an extended mutual aid during an Activation as ending when a job assignments. Examples include
assignment, injury or disability), then System Member returns to the pre- substantial travel to an emergency job
the public safety agency may bill DHS deployment staging area. This assignment at a location outside the
for the cost of Backfilling the position description conflicts both with standard normal workplace, or the employer
for the period that the regular employee terminology and the reality of System requires the employee to be "on call" to
is away on a Federal deployment. deployments. A more accurate respond to emergency job assignments.
However, we will only reimburse for the description of the duration of the A corollary of the "substantial travel"
incremental overtime salary and benefit reimbursable period during an exception is that the travel is
expenses associated with the Activation is set forth in the Interim noncompensable if the amount of time
replacement employee. We will not Rule.
spent traveling is minima)
reimburse the Back -filling, agency for the Eligibility for Reimbursement and On reconsideration of our position,
regular salary and overtime cost of the Coverage Under Federal Statutes While we will reimburse certain travel costs
replacement employee because the Traveling to and from the Point of and time spent traveling to the Point of
Assembly. One Task Force commented Assembly when a System Member
public safety agency'would have to pay
this cost if the Federal deployment had on the time period that we propose to responds to an Activation and must
not occurred. pay System Members, namely from travel a considerable distance or time, as
arrival at the Point of Assembly until his determined by DHS on a case by case
Public Comments on the Proposed Rule or her release from duty, which may be basis, to reach the Point of Assembly.
During the comment period on the the airport or Air Force Base to which Otherwise, we will follow the general
Proposed Rule, which closed on the Task Force returns, or at the Task rule regarding noncompensable travel,
February 3, 2003, we received a number Force's original Point of Assembly, or including minimal travel. When we
of comments. We summarize the some other point. Noting that some of activate a Task Force or other System
comments and our response to them in its members live 2 or mr4nre hours away resource, timely assembly of the System
the materials that follow. from the Point of Ass?r;iply, the Members is critical, and under those
Usage of Terms in the SUPPLEMENTARY Sponsoring Agency reimburses circumstances warrants our exception to
INFORMATION. We received comments members from the time that they are the general rule. This exception will
concerning the use of the terms "Task alerted to the time that they return home apply only to Activations, and will not
Force Member" and "System Member" (including travel mileage). apply, for instance, to Alerts, to travel
in the SUPPLEMENTARY INFORMATION to Response: This question has two home after return to the Point of
the Proposed Rule. In the aspects: (1) Reimbursement for time Assembly, or to travel required for
SUPPLEMENTARY INFORMATION to the spent traveling to and from the Point of training, which we consider to be
Proposed Rule, we used the term ".Task Assembly, and reimbursement for travel ordinary noncompensable travel.
Force Member" to denote individuals mileage while traveling to and from the In the Course of Employment:
who respond as part of the National Point of Assembly; and (2) Ordinary travel to and from a fixed
US&R Response System. However, consideration of time spent traveling to workplace is generally not within the
while most participants in the System and from the Point of Assembly as "in scope of employment for workers'
respond as part of a US&R Task Force, the course of employment" for the compensation purposes, under the
participants in the System may also be purposes of workers' compensation (for "going and coming" rule. Under the
called upon to serve on Joint injuries sustained) and tort liability (for rule, employees with a fixed workplace
civil wrongs or'harms caused) during are covered by workers' compensation
_, Back ill means the personnel practice of that travel only when they are on their employer's
temporarily replacing a person in his or her usual Reimbursement: This issue is related premises, or perforkiing an assignment
position with another personto the Fair Labor Standards Act (FLSA), required by the employer. One of the
1
9186 Federal Register /Vol. 70, No. 36 / Thursday, February 24, 2005 /Rules and Regulations
exceptions to the general rule of going One commenter recommended that disabled while Activated would be
and coming is travel to and from job DHS include a definition of "Affiliated entitled to benefits through the agency's
assignments, where the employer Member." The equivalent term is
compensates the employee for the time defined at § 208.32 as "Affiliated
or expense of the travel. Consistent with Personnel."
that exception and our intent to • Section 208.6; System Resource
reimburse travel costs and time spent Reports. One commenter noted that
quantities and set forth in § 208.11 and explained in asked whether contributions to a
types of equipment and supplies that a the Supplementary Information, DHS municipal pension plan made
Sponsoring Agencymay purchase and will appoint System Members into voluntarily by System Members during
ring
maintain with funds." Federal service, concurrent with those an Activation, rather than contributions
FEMThe definition for "Participating individuals' local employment, to made by the System Member's employer
p g secure protection for such employees under the terms of a collective
Agency" reads: "A State or Local under the Federal Employees' bargaining agreement or other
Government, non-profit organization, or Compensation Act and the Federal Tort arrangement, are reimbursable by DHS.
private organization that has executed Claims Act. If a System Member Voluntary employee contributions, as
an agreement with the Sponsoring sustains an injury, that System Member opposed to mandatory employer
Agency to participate in the National may file a claim for compensation under contributions, are not reimbursable
US&R Response System." the Federal Employees' Compensation expenses.
One Task Force expressed concern Act. Because the System Member's Contributions to the Pension Plan
regarding the definitions of "Program Federal appointment is concurrent with Based on Overtime. One Sponsoring
Manager," "Program Office," and his or her local employment, the System Agency commented that under its
"Project Manager." We have decided to � Member may also be eligible for benefits plan, salary is defined as the
retain the definitions of "Program . compensation under his or her local total actual fixed cash compensation,
Manager" and "Program Office" as they workers' compensation system. In that including overtime, and contributions to
are. Currently, the Program Manager is
e the System Member may collect its pension plan are based on this total
the Chief of the US&R Section, which is either the incremental difference salary, including overtime. The
part of the Response Division of FEMA, between Federal benefits and local Sponsoring Agency asked whether
under the Emergency Preparedness and benefits, or may collect local benefits in contributions to the pension plan based
Response Directorate of DHS, and the full, depending on whether the local onl&'ertime pay received during
Program Office is the US&R Section. benefits may be offset by the Federal Activation reimbursable under this rule,
However, these entities may change as payment to the System Member. Under § 208.40(a)(2), these
the organizational structure of DHS As explained in § 208.40, DHS will contributions are reimbursable.
evolves. We will notify the Sponsoring reimburse the Sponsoring Agency for Cost Sharing. One Task Force
Agencies if we designate a different the workers' compensation insurance commented that § 208.23(f) refers to
Program Manager or Program Office. We premium costs associated with the time "Cost Sharing" but makes no distinction
have deleted the definition of "Project during Activation. However, any local between "hard share," i.e., cash
Manager" from the definitions set forth benefit payment is not a reimbursable contributions, and "soft share," i.e.,
in § 208.22, since that terms appears expense, because DHS (through the U.S. other value-added benefits provided by
nowhere else in the Interim Rule. Department of Labor) provides coverage the Sponsoring Agency. We do not
We have added the following under the Federal Employees presently require Sponsoring Agencies
definition: "Program Directive means Compensation Act, and because we are to provide a cost share, either hard or
guidance and direction for action to prohibited under our current statutory soft, for preparedness or response
ensure consistency and standardization authority from reimbursing Sponsoring funding. Please note that section
across the National US&R Response Agencies for the costs of benefit 208.22(f) provides for cost sharing if it
System." This replaces the term payments. were required in the future. If we were
"System Order" in the proposed rule Death or Disability in Line of Duty. to institute a cost -sharing requirement
with 'Program Directive" in the interim One Participating Agency asked in the future, we would clearly indicate
rule. whether a System Member killed or in the Cooperative Agreement whether
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
traveling to the Point of Assembly in Sponsoring Agency, Participating Federal Activation, and that, as a result,
response to an Activation, on a case -by- Agencies and System Members are to any.death or injury during Activation
case basis we will meet our obligations cooperate fully in audits, investigations, should be considered to have occurred
regarding workers' compensation claims studies and evaluation, and asked, "who while the System Member was acting in
that arise out of injuries that System pays for salary cost associated with the scope of employment.
Members incur while traveling to a gathering and processing the Federal Death Benefits. One
Point of Assembly in response to an information?" Sponsoring Agency asked how a
Activation, but for no other purpose. DHS provides funding for program "Federal death benefit," if incurred,
Definitions. We received several management in the Preparedness would be calculated. The "Federal
comments on the definitions in § 208.2, Cooperative Agreement to support death benefit" for System Members
and made.the following rhanges: administrative activities, including the comprises two separate components: (1)
We changed the term "Memorandum salary costs for gathering and processing A benefit payment under the Federal
of Understanding" to "Memorandum of • System resource reports: Employees Compensation Act; and (2) a
Agreement." Workers' Compensation and Other payment under the Public Safety
The definition for "Equipment Cache Benefit Costs. Several Sponsoring Officers' Benefit Act. The death and
List" now reads: "The DHS-issued list Agencies commented that workers' injury benefits available under each of
that defines_ compensation and other benefit costs those statutes are determined using
"(1) The equipment and supplies that incurred by Sponsoring Agencies as the formulas set forth in those statutes.
US&R) Theill equfuripment
to and
result of an injury or death to a System Voluntary Contribution to Municipal
Agencies; and Member are not reimbursable costs. As Pension Plans. One Sponsoring Agency
Federal Register/Vol. 70, No. 36/Thursday, February 24, 2005/Rules and Regulations 9187
such cost share would be "hard" or Sponsoring Agency for compensation However, the only permissible way to
"soft." paid to those individuals while reimburse Affiliated Personnel for
Equipment Ownership. Several Activated. The Sponsoring Agency may Backfill costs is through Participating
Sponsoring Agencies commented that choose to compensate these individuals Agencies —neither we nor the
the Proposed Rule does not address at a higher rate, but we will not Sponsoring Agencies have contractual
ownership or disposition of equipment reimburse the increment above the or employment relationships with the
purchased under this program. maximum rate specified in the Table. individuals Reclining the jobs of
OMB Circulars A-87 and A-110 Likewise, the Sponsoring Agency may Affiliated Personnel. If reimbursement
specify that equipment purchased with choose to enter into a Participating for Backfill expenses is a problem for
Federal Grant funds is the property of Agency agreement with the individual's Affiliated Personnel, we encourage them
the grantee. However, title, use, employer, rather than use the inditiidual to have their employers or professional
management and disposition of as an Affiliated Personnel, in which association seek Participating Agency
equipment purchased under a grant or case the Table would not apply. status. Participating Agency status is
Cooperative Agreement is set out in 44 Consequently, only a Sponsoring available to private, for -profit
CP7{ 13.32, a government wide rule to Agency's choice to exceed the organisations under the revised
which DHS adheres. While the maximum rates set forth in the definition of "Participating Agency" set
Sponsoring Agency has title to any Maximum Pay Rate Table would result forth in this Interim Rule. (See
equipment purchased with Federal in an uncompensated expenditure, and Definitions, § 208.2, Participating
preparedness and response Cooperative the Table would not violate the Agency, and § 2D8.12, Maximum Pay
Agreement funds, DHS reserves the principle of cost neutrality. Rate Table.) Note, however, that
right to transfer title to the Federal A number of parties expressed compensation costs, for the purposes of
Government or a third party that we concern that the Table was not provided reimbursement and Backfill, refer to the
may name, under 44 CFR 13.32(g). DHS concurrently with the publisbing of the System Member's actual compensation,
would generally expect to limit its Proposed Rule. We chose not to delay or the compensation of the individual
exercise of this right to instances when the Proposed Rule until the Table could
a Sponsoring Agency indicates or who Backfills a position (whichbe developed. We have inserted a new
demonstrates that the Sponsoring includes salary and benefits, asdescribed in §§ 208.39 and 208.40),
Agency ran not fulfill its obligations section 208.12, Maximum Pay Rate Table, to establish the process for rather than billable or other rates that
under the of
Maximum Pao Rate Table. Agreement. creating, updating and using the Table. might be charged for services rendered
y We are also publishing the Table as a to commercial clients or patients.
received the most number of comments Notice in the Federal Register and are th
concerning the Maximum Pay Rate Creating, Updating and Using the
Table (Table) identified in the Proposed askingAfaximurn Pay Rate Table. We have for comments on both the Interim inserted a new section 208.12 in this
Rule. For clarity, we set forth here the Rule and the Table before publishing rule to establish how we will create,
applicability of the Table and the the final fie. update and use the Table to reimburse
process we will follow for creating and One Sponsoring Agency expressed dated Personnel (Task Force
updating the Table. concern that the rates set forth in the Physicians, Task Force Engineers, and
Section 208.32 defines the "Maximum Table could not be used with respect to Canine Handlers) and Bacldill for
Pay Rate Table" as "the DHS-issued individuals employed by the Activated System Members employed •
table that identifies the maximum pay Sponsoring Agency, and not when the by or otherwise associated with a for -
rates for selected System positions that individual would serve on the Task profit Participating Agency; the Table
may be used for reimbursement of Force as Affiliated Personnel (e.g., a applies only to these named categories.
Affiliated Personnel compensation and Sponsoring Agency fire department Section 208.12 describes the method for
Backfill for Activated System Members dispatcher affiliated with the US&R determining maximum pay rates using
employed by or otherwise associated Task Force in a non -dispatcher role as United States Office of Personnel
with a for -profit Participating Agency." a canine search specialist). Although the Management's (OPM) salary rates, and
In that same section, "Affiliated . Table would not necessarily apply to provides links to OPM's applicable
Personnel" are defined as "individuals reimbursement for salary and benefits salary rate tables and locality pay tables.
not normally employed by a Sponsoring . for that individual, Sponsoring Agencies The section provides that DHS will
Agency or Participating Agency and ` 1.may use the rates in the Table as a guide review and update the Tarp;e
individuals normally affiliated with a for establishing compensation levels for periodically (at least annually). DHS is
Sponsoring Agency or Participating Affiliated Personnel, publishing the initial Table in the
Agency as volunteers." Affiliated Personnel. Several Federal Register as a Notice with
One Sponsoring Agency commented commenters noted that the rule can be request for comments. DHS will publish
that the Table seemed to contradict the interpreted to preclude the subsequent revisions to the Table as
principle of cost neutrality set forth reimbursement of Backfill expenses for Notices in the Federal Register.
prominently in the Proposed Rule. Affiliated Personnel under § 208.39(g). The section further states that a
However,, as defined, the Table applies Those commenters expressed concern Sponsoring Agency may choose to pay
only to those individuals who are not that, since the highly -trained civilians Affiliated Personnel at a higher rate, but
normally employed by a Sponsoring such as physicians, structural engineers DHS will not reimburse the increment
Agency or Participating Agency, or and canine handlers are typically above the maximum rate specified in
whose affiliation with a Sponsoring Affiliated Personnel, reimbursement for the Table.
Agency or Participating Agency is as a Backfill expenses is important to Resupply and Logistics Costs During o
volunteer; that is, an individual whom securing the participation of these Federal Activation. One Sponsoring
the Sponsoring Agency or Participating individuals in the System. The Agency noted that, under § 208.38, we
Agency does not normally compensate restriction on Backfill costs for • will not reimburse costs incurred for
in any way, at any rate. Affiliated Personnel could limit the resupply and logistical support during
The Table sets forth maximum rates ability of Sponsoring Agencies to recruit Activation. That section states that
for which we will reimburse the and retain these highly trained civilians. resupply and logistical support needed
9188 Federal Register/Vol. 70, No. 36/Thursday, February 24, 2005/Rules and Regulations
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
§ 208.44, Reimbursement for other costs.
Absent such circumstances, we will not
reimburse costs incurred for resupply
and logistical support during
Activation,
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 intim
Proposed Rule would result in fewer
chief officers (who are typically
ZZESF-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.
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 o
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
§§ 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 frsm the
Sponsoring Agency r* participatng
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 § 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
§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 § 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 § 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 § 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
A Demobilization Osier is a DHS
communication that terminates an Alert or
Activation and identifies cost and time allowances
for rehabilitation.
Federal Register / Vol. 70, No. 36 / Thursday, February 24, 2005 /Rules and Regulations 9189
can exceed $1 million, an advance up to Agencies often do not submit claims for
75 percent of that amount still leaves reimbursement in a timely manner. This
the Sponsoring Agency with tendency interferes with our ability
approximately $250,000 in outlays for administratively to "close out" the
op on.
Reevaluation and Potential Revision
of the Rule. One agency commented that
we should provide a date certain for
reevaluation and potential revision of
during the initial 24- to 48-hours of an personnel costs. The amount "up to 75 this rule. The agency believed that
Activation, it can be difficult to obtain percent" is a result of our examination providing this date certain was
written or verbal approvals, and that of personnel cost data from a number of important because some provisions of
personnel authorized to approve previous Activations. It also recognizes the rule will require additional
expenditures are not available 24 hours the financial burden borne by the discussion and development, and other
a day during this period.. Moreover, this Sponsoring Agencies in carrying, even issues may arise after the rule is
agency commented that Joint temporarily, these additional salary implemented. We do not believe that
Management Teams, in the past, have costs. However, Activations often last there is a need to provide a date certain
left requests for resupply unanswered for a shorter period of time than we use by which we will reevaluate and, if
far extended periods of time. The to calculate the estimated personnel necessary, revise the rule. However, we
agency recommended that we empower costs for the Activation, as was the case will work with our State and Local
Task Force Leaders to make recently with Hurricane Isabel when Government partners through the
procurement decisions. teams were activated for fewer than 7 National Urban Search and Rescue
We feel that this comment addresses days. As one commenter pointed out, System Advisory Committee and its
operational problems rather than some percentage of personnel costs may Legal Issues Working Group to evaluate
regulatory issues. Many of these be questioned and ultimately this rule, measure its efficacy, and
problems will be alleviated by the disallowed as a result of the develop revisions as necessary.
construction of the new DHS operations reimbursement review process. For Task Force Leader. One Sponsoring
center that will be staffed 24 hours a day these reasons, at this time, we believe Agency commented that this rule
during an Activation, and by assuring that up to 75 percent of estimated should include a definition of the role
that there is at least one person on duty personnel costs is the best amount for and responsibilities of the Task Force
in the operations center who holds an advance of funds. We expect to Leader, the highest leadership position
delegated authority to authorize review Sponsoring Agencies' experience on a US&R Task Force. The commenting
procurements. Moreover, the revised periodically under this provision, and agency stated that "Nile Task Force
Equipment Cache List 24 provides for will make revisions as warranted. Leader is the individual during a
the purchase of multiple, back-up Deadline for Submission of Claims. deployment who is in control and
methods of communication to assure One agency commented that the responsible for the entire Task Force, in
that Task Forces can communicate with deadline for submission of claims comes addition to reporting to FEMA (whether
the operations center under any too soon after an Activation has ended, the FEMA Emergency Support Team
circumstances. We.believe that the rule Currently, § 208.52 specifies that (EST) or the IST [now PAT] the Task
controls the cos r. esocated with Sponsoring Agencies must submit Fopits Leader is the individual that the
Activation and limits duplicative claims for reimbursement within 90 Sponsoring Agency designates to
procurement without compromising days of the conclusion of the Activation. represent the Sponsoring Agency both
responder safety. Section 208.52 also states that DHS may financially and legally while the Task
Advance of Funds. Section 208.45 extend and specify the time limitation Force is deployed."
states that we will provide the upon a written request and justification We feel that the roles and
Sponsoring Agency with an advance of from the Sponsoring Agency. The responsibilities of the Task Force Leader
funds up to 75 percent of the estimated commenting agency noted that it could should not be included in the rule. We
personnel costs of the Activation. take many weeks to obtain certain items, have developed and published a
Several agencies commented that we often because of manufacturers' Position Description for the Task Force
should increase this amount to 90 inventory status. The agency stated that Leader, and have described the roles
percent of the estimated personnel setting a deadline of 120 days would and responsibilities of the Task Force
costs. These agencies commented that obviate the need for a Sponsoring Leader in several operational
since personnel costs of an Activation Agency to apply for repeated documents. These descriptions may
extensions. change over time, and we want to retain
procedures in § 208.44 for
reimbursement of other costs.
Reimbursement for Other Costs.
Section 208.44 sets a procedure for
Sponsoring Agencies to follow if the personnel costs for which it must wait accounts we set up for each major
Sponsoring Agency or the Task Force for up to 120 days or more for disaster or emergency, and also results
believes that it must incur an expense reimbursement. The financial burden of in Sponsoring Agencies carrying
not included in subpart C for which it these outlays would be compounded in unreimbursed costs for longer periods of
expects to request reimbursement. the event of multiple Activations within time. We believe that it is better to
Section 208.44 requires that the a relatively short time period. require submission of claims for
Sponsoring Agency request in writing We believe that up to 75 percent is the reimbursement within 90 days of the
permission from DHS to make the optimal amount for an advance of funds conclusion of the Activation, while
expenditure or, if advance permission in because it balances the need for funds permitting Sponsoring Agencies to
writing is not possible to obtain, to meet against the possibility of overestimated apply for 30-day extensions at their
three criteria before making the funds. As one commenter pointed out, ti
expenditure, including requesting and for many years we did not provide any
receiving advance verbal approval. advance of funds, and for more recent
One agency commented that during Activations we provided an advance
an extreme emergency, in particular equal to 25 percent of estimated
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
(bi the maximum quantities and types of equipment
and supplies that a Sponsoring Agency may
purchase and maintain with DHS funds.
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
flexibility by including these
descriptions in operational documents
rather than in the rule. Moreover,
different Sponsoring Agencies have
vested their Task Force Leaders with
9190 Federal Register /Vol. 70, No. 36 / Thursday, February 24, 2005 /Rules and Regulations
administrative allowance listed in
§ 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 variouus 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
System, stating that the "work burden important to the public to ensure that
formulas presuppose economies of scale every effort has been made to rescue
for a larger, pre-existing agency." people still alive within a collapsed
We brought this issue to the National structure. Members also have an
US&R Advisory Committee, which important role in finding the bodies of
recommended retention of the indirect those killed in the collapse, so that
costs policy as in the proposed rule. We victims might be identified and returned
agree. This limitation is not inconsistent to grieving families. The tasks
with other limitations applicable to performed and the dangers inherent in
FEMA programs. Accordingly, we have the work benefit other firefighters and
not changed;this section. Note that this disaster responders who do not have the
limitation applies only to Preparedness specialized training and experience of
Cooperative Agreements, which apply the National US&R Response System
over the course of at least one year and Members and who are not put at risk by
to which indirect cost principles can be entering the collapsed structures when
applied readily. F.xrept as provided in US&R teams are present.
§ 208.41, we allow no indirect costs The Interim Rule is effective today,
under Response Cooperative the date ofpublication. There is an
Agreements. US&R deployments are urgent need within the National US&R
most often short-term, on the order of Response System to standardize
10-14 days. Consistent with section 407 financial, administrative and
of the Stafford Act, we will allow the operational functions among the 28
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 divergesfromstandard
Federal indirect cost percentages. The
commenting agency stated that this
limitation could threaten the ability of
that Sponsoring Agency to remain in the
Task Forces located in 19 States. These
needs include codifying the relationship
between the Department of Homeland
Security'LDHS) 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 Gommittee),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 r}•�:_-', 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.
Good cause exists and it is in the
public interest to make this Interim Rule
LS 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 foi
Emergency Preparedness and Response.
"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.
Federal Register/Vol. 70, No. 36/Thursday, February 24, 2005/Rules and Regulations 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
Saptember.11, 2001, which led to major
changes in planning, operations,
management, training and funding.
Twenty US&R teams responded to the Participating Agency, one from a
World Trade Center and five responded Member of Congress, and none from the
to the Pentagon. After -action public at large. We reviewed the
evaluations showed the need for greater comments, accepting some, rejecting
interoperability of equipment, some. This preamble and Interim Rule
consistency in training and operating reflect the decisions made regarding the
across the 28 teams, and many other comments that we received.
factors to permit 28 disparate units in 19 When we published the Proposed
States to perform as a cohesive whole. Rule, we mentioned, but had not yet
Congress appropriated larger sums to prepared, the Maximum Pay Rate Table
support the program, mandating that the (Table). In order to have that part of the
program not add new task forces until rule on which we had received
existing task forces were fully equipped comments go into effect, and to obtain
and trained. Spurred by the response of public comments on the Table, we
Congress and the Administration, we elected to publish the rule as an Interim
redoubled efforts to standardize the Rule, and, concurrently to publish the
financing, administration and operation Table as a Notice, with request for
of the National US&R Response System. comments.
Under the status quo ante and the low Economic Significance of the Rule.
level of Federal funding, we had little This rule will not have an annual effect
leverage to standardize the program. on the economy of $100 million or more
With increased appropriations and and is not an economically significant
expanding mission that followed
September 11, 2001 (e.g., response to
acts of terrorism and weapons of mass
destruction events, response to
hurri�anas), 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 collapse buildings,
whether from earl tpia.kes 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 77627-7.7640.
During the 45-day comment period, we
received about 30 comments from
Sponsoring Agencies, one from a
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
9192 Federal Register / Vol. 70, No. 36 / Thursday, February 24, 2005 /Rules and Regulations
below in the materials on the Paperwork National Urban Search and Rescue
Reduction Act We expect that our Response System (System or US&R),
Cooperative Agreements and their which FEMA established under the
associated indirect cost rates will cover Robert T. Stafford Disaster Relief and
the eligible coststhat the Sponsoring Emergency Assistance Act. The System
Agencies incur to participate in the • currently comprises 28 US&R Task
National US&R Response System. Forces in 19 States. A State agency or
Costs to DHS to administer the local public safety agency (Sponsoring
National US&R Response System Agency) typically sponsors a Task
include the salaries and expenses of an Force,27 staffed primarily by local fire
8-person staff, and the indirect staff department and emergency services
costs for financial, acquisition, logistics 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"
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 USBR
mission, which do not impose
conditions on the Sponsoring Agencies
malting 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, arfu;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
asubstantial.number of small entities."
This rule standardizes the financing,
administration and operation of the
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 within the meaning of 5 U.S.C. 601(5).
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 backbit 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 Backfiil 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
z'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
pant funds andlederal 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 206.1n 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 Wile does not
affect the relationships between USAID and the
Sponsoring Agencies of the Task Forces.
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 FTGA 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 USSR 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,
unreirnbursed 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
USSR System; none provided differing
compliance or reporting requirements,
or clarified, consolidated, or simplified
ddppliance 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
Federal Register / Vol. 70, No. 36 / Thursday, February 24, 2005 /Rules and Regulations 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 (USSR), by
which DHS provides specialized
lifesaving assistance during major
disaster or emergency. USSR
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:
VHS forms
No. of
responders
(A)
Frequency
of response
(B)
Hours per response and record -
keeping
(C)
Annual bur-
den hours
(AxBxC)
The following forms were approved under 1680-3025:
SF-424 Application for Federal Assistance
DHS Form 20-10 Financial Status Report
VHS Forms 20-16, 20-16A, 20-16C, Summary Sheet for As-
surances and Certifications.
SF LLL, Disclosure of Lobbying Activities
VHS Form 20-20, Budget Information Non -Construction Pro-
grams and Budget Narrative.
SF 270, Request for Advance or Reimbursement
Subtotal
28
28
28
28
28
28
2
2
1 hour
1 hour
30 minutes
10 minutes
9 hours
4 hours
28 hours.
28 hours.
14 hours.
5 hours.
504 hours.
224 hours.
224
803 hours.
OMB Number: New.
Abstract: In order to implement the
USSR 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:
VHS forms
No. of.
responders
(A)
Frequency
of response
(8)
Hours per
response and recordkeeping
(C)
Annual
burden hours
(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 Governments, an8' y,Jon-Profit Organi-
nations.
28
1
30 hours ,1
840 hours.
Memoranda of Agreement
28
1
(1)
8
Subtotal
145
1
1181 hours.
Total hours
369
1984 hours.
r 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 wit make a second Paperwork Reduc-
tion Act rut mission to OMB.
Estimated Times and Costs: The
approximate annual salary of State and
local staff who will complete the forms
is S35,000. The approximate hourly rate
of pay is S18.90 (S35,000 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
USSR 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 S14,112 (672 hours times S21 per
hour of staff work). Printing costs are
minimal.because the forms are available
in electronic format.
9194 Federal Register / Vol. 70, No. 36 / Thursday, February 24, 2005 /Rules and Regulations
The total annual estimated time and
costs are 1984 hours and S37,498 cost to
applicants and S14,112 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.govfor 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 based enterprises. This rule is subject to
program is to build State and local the information collection requirements
US&R capability. The US&R program of the Paperwork Reduction Act and
recognizes the primary role of State and OMB has assigned Control No. 1660-
local governments in responding to 0025. The rule is not an unfunded
disasters and emergencies. Equipment Federal mandate within the meaning of
and supplies purchased with Federal the Unfunded Mandates Reform Act of
funds may be used to respond to in -state 1995, Pub. L. 104-4, and any
disasters and emergencies. The teams enforceable duties that we impose are a
may only be deployed.across State lines. condition of Federal assistance or a duty
when released by their home State. The arising from participation in a voluntary
assistance these teams provide, like Federal program.
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
USBR Task Forces.
Congressional Review of Agency
RulemaIcing
We have sent this final rule to the
Congress and to the General Accounting
Office under the Congressional Review
of Agency Rulemalting 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, indivi dual ''ndustries,
Federal, State, or loc�'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 -
List of Subjects in 44 CFR Part 208
Disaster assistance, Grant programs.
m 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.
Federal Register/Vol. 7D, No. 36/Thursday, February 24, 2005/Rules and Regulations 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.D. 12148, 44
FR 43239, 3 CFR, 1979 Comp., p. 412; E.O.
13286, 68 FR 10519, 3 CFR, 2003 Comp p
166.
Subpart A —General
§ 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
§§ 208.5 and 208.10 of this part. This
part does not apply to reimbursement
under part 206, subpart H, of this
chapter.
§ 2082 Definitions of terms used in this
part
(a) General. Any capitali7ed word in
this part is a defined term unless such
capitalization results from the
application of standard capitalization or
style rules for Fed&,'tal regulations. The
following defintic9;rs 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 af, 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
Alert means the status of a System
resource's readiness when triggered by
an Alert Order indicating that DHS ma
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.
Backfll 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 mean 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 Cliche List means the
resources. DHS-issued list that defines: o
(a) The equipment and supplies that
USER will furnish to Sponsoring
y 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 /MT
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 arid NDMS resources,
and to provide technical advice and
assistance to States and Local •
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
cam., any fire, flood, or explosion, in
A"hy 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 Agencymeans a State or
Local Government, non-profit
rganization, or private organization
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
9196 Federal Register/Vol. 70, No. 36/Thursday, February 24, 2005/Rules and Regulations
that has executed an agreement with a and administered by a Sponsoring and assess the efficiency and
Sponsoring Agency to participate in the Agency and meeting DHS standards. effectiveness of System resources.
National US&R Response System. Task Force Member means a person § 208 8 System resource reports.
Personnel Rehabilitation Period occupying a position on a Task Force.
means the period allowed by DHS for a Technical Specialist means a person (a) Reports to Director. The Director
person's rehabilitation to normal participating in the System contributing may request reports from any System
conditions of living following an technical knowledge and skill who may resource relating to its activities as part
Activation. be placed on Alert or Activated as a of the System.
Preparedness Cooperative Agreement single resource and not as a part of a (b) Reports to FEMA Regional
means the agreement between DHS and JMT or a Task Force. Directors. Any FEMA Regional Director
a Sponsoring Agency for reimbursement US&R means urban search and rescue, may request through the Director reports
of allowable expenditures incurred by the process of searching for, extricating, from any System resource used within '
the Sponsoring Agency to develop and and providing for the immediate or based within the Regional Director's
maintain System capabilities and medical stabilization of victims who are jurisdictioll
operational readiness. entrapped in collapsed structures. (c) Audits, investigations, studies and
Program Directive means guidance (b) Additional definitions. Definitions evaluations. DHS and the General
and direction for action to ensure for certain terms that apply only to Accounting Office may conduct audits,
consistency and standardization across individual subparts of this part are investigations, studies, and evaluations
the National US&R Response System. located in those subparts. as necessary. Sponsoring Agencies,
Program Manager means the Participating Agencies and System
individual, or his or her designee, § 208.3 Authority for the National US&R Members are expected to cooperate fully
within DHS who is responsible for day- Response System. in such audits, investigations, studies
to -day administration of the National (a) Enabling legislation. The Federal and evaluations.
US&R stem. ResponseY S Emergency Management Agency
§ 208.7 Enforcement
Program Office means the established and operated the System
organizational entity within DHS that is under the authority of §§ 303, 306(a), (a) Remedies for noncompliance. In
responsible for day-to-day 306(b), 403 (a)(3)(B) and 621(c) of the accordance with the provisions of 44
Stafford Act, 42 U.S.C. 5144, 5149(a), CFR 13.43, if a Sponsoring Agency,
administration Syst of the National USER 5149(b), 5170b(a)(3)(B) and 5197(c), Participati v Agency, Affiliated
Response System. Personnel or other System Member
Response Cooperative Agreement respectively. Section 503 of the
means an agreement between DHS and Homeland Security Act of 2002, 6 materially fails to comply with a term of
U.S.C. 313, transferred the functions of a Cooperative Agreement, Memorandum
a allowable
xApendiy forrincurred
bynt the Director of FEMA to the Secretary of of Agreement, System directive or other
of allowable expenditures incurred 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 kith 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.
§ 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.
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.
§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.
§ 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
§ 206.13 of this chapter, the Director
may establish performance standards
Federal Register / Vol. 70, No. 36 / Thursday, February 24, 2005 /Rules and Regulations 9197
§ 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.
§ 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
circimstances.
(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 assistanre by DHS.
§ 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.
§ 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 Backfll 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
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 Activated System Members employed
pay rates. (1) DHS uses the United by or otherwise associated with a for -
States Office of Personnel Management's profit Participating Agency.
salary rates, computed under 5 U.S.C. (2) Higher rotes. The Sponsoring
5504, as the basis for the maximum pay Agency may choose to pay Affiliated
rate schedule. DHS considers System Personnel at a higher rate, but DHS will
members' experience and sets maximum not reimburse the increment above the
pay rates at the maximum grade, middle maximum rate specified in the
step for each position, which Maximum Pay Rate Table. Likewise, the
demonstrates an experience level of five Sponsoring Agency may choose to enter
years. into a Participating Agency agreement
(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.oputtovIocol03 tables/
SSR/HTML/0290:t r.
(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 /03tabl es/l ocd ef. asp.
selected System positions that may be (3) Review and update. DHS will
used for reimbursement of Affiliated review and update the Table
Personnel compensation and Backfill for periodically, at least annually. The
Activated System Members employed comments of Sponsoring and
by or otherwise associated with a for- Participating Agencies and their
profit Participating Agency." In that experience with the Table will be
same section, the term "Affiliated considered and evaluated in the course
Personnel" is defined as "individuals of the reviews.
not normally employed by a Sponsoring (4) Initial rates and subsequent
Agency or Participating Agency and revisions. DHS will publish the initial
individuals normally affiliated with a maximum pay rate table in the Federal
Sponsoring Agency or Participating Register as a notice with request for
Agency as volunteers." comments. Subsequent revisions will be
(b) Scope of this section. (1) The made to the pay rate table as OPM
Maximum Pay Rate Table applies to changes salary rates as described in this
those individuals who are not normally section. When subsequent revisions are
employed by a Sponsoring Agency or made to the maximum pay rate table
Participating Agency, or whose DHS will publish the new maximum
affiliation with a.Sponsoring Agency or pay rate table in the Federal Register.
The rates will be effective for the latest
year indicated by OPM.r
(d) Application of the maximum pay
rate table—{1) Applicability. The
Maximum Pay Rate Table sets forth
mar mum rates for which DHS will
reimburse the Sponsoring Agency for
compensation paid to Activated
Affiliated Personnel and as Backfill for
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 § 208.39(g). (i) The
only way that DHS can reimburse for
Backfill costs incurred for Affiliated
Personnel is through Participating
'in some years the latest year may not be the
current calendar year. For instance, OPM did not
change its pay rates kr calendar year 2009, and the
2003 schedules apply.
9198 Federal Register/Vol. 70, No. 36/Thursday, February 24, 2005/Rules and Regulations
Agencies. If reimbursement for Backfill Officer will issue a call for Cooperative
expenses is needed for Affiliated Agreement amendment applications.
Personnel, DHS encourages them to urge The Assistance Officer will specify
their employers or professional • required application forms and
association to seek Participating Agency supporting documentation to be
status. submitted with the application.
(ii) Private, for -profit organizations. (2) Period of performance. Absent
Participating Agency status is available special circumstances, the period of
to private, for -profit orgsni7ations, e.g., performance for Preparedness
HMOs or medical or engineering Cooperative Agreements will be 1 year
professional associations, under the from the date of award. The Assistance
revised definition of "Participating Officer may allow for an alternate
Agency" set forth in this Interim rule. period of performance with the approval
(See Definitions, § 208.2, Participating of the Director.
Agency, and § 208.32, Maximum Pay (3) Assistance Officer. The Assistance
Rate Table). When a for -profit Officer is the only individual authorized
Participating Agency must backfill an to award or modify a Preparedness
Activated System Member's position we Cooperative Agreement.
will compensate that Participating (d) Award amounts. The Director will
Agency up to the marrimum rate . determine award amounts on an annual
provided in the Table. basis. A Task Force is eligible for an
(iii) Compensation costs. DHS will annual award only if the Program
reimburse for -profit organizations, for Manager receives and approves the Task
purposes of reimbursement and Backfill, Force's current -year Daily Cost Estimate.
for the System Member's actual (e) DHS priorities. The Drector will
compensation or the actual establish overall priorities for the use of
compensation of the individual who Preparedness Cooperative Agreement
Backfills a position (which includes funds Making into consideration the
salary and benefits, as described in results of readiness evaluations and
§§ 208.39 and 208.40), but will not actual Activations, overall priorities of
reimburse for billable or other rates that DHS, and other factors, as appropriate.
might be charged for services rendered (f) Cost sharing..The Director may
to commercial clients or patients. subject Preparedness Cooperative
gg zo8.13-208z0 [Reserved] Agreement awards to cost sharing
provisions. In the call for Preparedness
§208.21 Purpose.
Subpart B of this part provides
guidance on the administration of
Preparedness Cooperative Agreements.
5208.22 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. Staz'ard form SF-424
"Application tar 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 • reasonable, allowable, necessary•and
fund and amend Preparedness allocable costs that directly support
Cooperative Agreements on an annual System activities, including the
basis. Before amendment, the Assistance following:
Subpart B--Preparedness Cooperative Cooperative Agreement amendment
Agreements 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.
(la) 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.
§20823 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 CA{ 13.22 and this section to pay
(a) Administration, including:
(i) 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
Lei Lifications other then 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 § 208.25
grthis part;
14) Purchase, construction,
maintenance or lease of storage facilities
and associated equipment for System
equipment and supplies.
(d) Disaster search canine expenses
limited to:
(a) 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.
Subpart C—Response Cooperative
Agreements
§20821 Purpose.
Subpart C of this part provides
guidance -on the administration of
Response Cooperative Agreements.
Federal Register / Vol. 70, No. 36 / Thursday, February 24, 2005 /Rules and Regulations 9199
§ 208.24 Purchase and maintenance of §208.32 Definitions of tens used in this
items not listed on Equipment Cache List. subpart.
(a) Requests for purchase or .Affiliated Personnel means
maintenance of equipment and supplies individuals not normally employed by a
not appearing on the Equipment Cache Sponsoring Agency or Participating
List, or that exceed the number Agency and individuals normally
specified in the Equipment Cache List, affiliated with a Sponsoring Agency or
must be made in writing to the Program Participating Agency as volunteers.
Manager. No Federal funds provided Demobilization Order means a DHS
under any Preparedness Cooperative communication that terminates an Alert
Agreement may be expended to or Activation and identifies cost and
purchase or maintain any equipment or time allowances for rehabilitation.
supply item unless: Exempt means any System Member
(f) The equipment and supplies who is exempt from the requirements of
directly support the Sponsoring the Fair Labor Standards Act, 29 U.S.C.
Agency's US&R capability; 201 et seq., pertaining to overtime
(2) The Program Manager approves compensation and other labor
the expenditure and gives written' notice standards.
of his or her approval to the Sponsoring Maximum Pay Rate Table means the
. Agency before the Sponsoring Agency DHS-issued table that identifies the
purchases the equipment or supply maximum pay rates for selected System
item. positions that may be used for
(b) Maintenance of items approved for reimbursement of Affiliated Personnel
purchase under this section is eligible compensation and Backfill for Activated
for reimbursement, except as provided System Members employed by or
in § 208.26 of this subpart. otherwise associated with a for -profit
§ 20825 Obsolete equipment Participating Agency.' The Maximum
Pay Rate Table does not apply to a
(a) The Director will periodically System member whom a Sponsoring
identify obsolete items on the Agency or Participating Agency
_ Equipment Cache List and provide such employs.
information to Sponsoring Agencies. Mobilization means the process of
(b) Neither funds that DHS provides assembling equipment and personnel in
nor matching funds required under a .response to an Alert or Activation.
Preparedness Cooperative Agreement Non -Exempt means any System
may be used to maintain or repair items Member who is covered by 29 U.S.C.
that DHS has identified as obsolete.
§ 20826 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 49
CFR 13.41 and 13.42.
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 § 208.41 of this part are
not allowable.
§ 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.
§ 208.35 Reimbursement for Advisory.
DHS will not reimburse costs incurred
during an Advisory.
§ 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
Bacldill, incurred to prepare for
Activation.
(2) Transportation costs relating to
hiring, leasing, or renting vehicles and
drivers,
(3) The administrative allowance
provided in § 208.41 of this part.
(4) Food and beverages for Task Force
Members and Support Specialists when
§208.27 Title to equipment. Agencies and Participating Agencies. To DHS does not provide meals during the
make an Alert or Activation cost- Alert. DHS will limit food and beverage
Title to equipment purchased by a neutral, DHS will reimburse under this reimbursement to the amount of the
Sponsoring Agency with funds provided subpart all reasonable, allowable, then -current Federal mks daily
under a DHS Preparedness Cooperatis-_ . ' necessary and allocable costs that a allowance published iti ilie Federal
Agreement vests in the Sponsoring Sponsoring Agency or Participating Register for the locality where such food
Agency, provided that DHS reserves the Agency incurs during the Alert or and beverages were provided,
right to transfer title to the Federal Activation. multiplied by the number of personnel
Government or a third party that DHS (b) Actual costs. Notwithstanding any who received them.
may name, under 44 CFR 13.32(g), for other provision of this chapter, DHS (b) Calculation of Alert Order dollar
example, when a Sponsoring Agency will not reimburse a Sponsoring Agency limit. The Alert Order dollar limit will
indicates or demonstrates that it cannot or Participating Agency for any costs equal:
fulfill its.obligations under the greater than those that the Sponsoring (1) An allowance of 10 percent of the
Memorandum of Agreement. Agency or Participating Agency actually Task Force's Daily Cost Estimate; and
§§ 208.28-208.30 (Reserved) incurs during an Alert, Activation, (2) A supplemental allowance of 1
(c) Normal or predetermined percent of the Task Force's Daily Cost
practices. Consistent with Office of Estimate for each 24-hour period
Management and Budget (OMB) beyond the first 72 hours of Alert.
Circulars A-21, A-87, A-102 and A- (c) Non -allowable costs. DHS will not
110 (2 CFR part 215), as applicable, , reimburse costs incurred or relating to
Sponsoring Agencies and Participating the leasing, hiring or chartering of
Agencies must adhere to their own aircraft or the purchase of any
normal and predetermined practices equipment, aircraft, or vehicles.
201 et seq.
Rehabilitation means the process of
returning personnel and equipment to a
pre -incident state of readiness after DHS
terminates an Activation.
§208.33 Allowable costs.
(a) Cost neut.-ably. DH5 policy is that
an Alert or Activation should be as cost
neutral as possible to Sponsoring
9200 Federal Register/Vol. 70, No. 36/Thursday, February 24, 2005/Rules and Regulations
§ 208.37 Reimbursement for equipment
and supply costs Incurred during
Activatlon.
(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
§ 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
§ 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.
§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 1Ni:doh
they were actively supporting the
Activation. The provisions of § 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 end regularly scheduled sleep
periods during Activation. Activated
System Members are considered "ore
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
§ 208.39(e)(1) through (3) of this
subpart
(e) Procedures for calculating
compensotion 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 § 208.52 of this
part according to the following table:
tf the Sponsoring Agency or Participating
Agency •
And the Sponsoring Agency or Participating
Agency •
Then the following compensation costs are
allowable:
(i) Customarily and usually compensates Ex-
empt System Members by paying a salary,
but not overtime,
(ii) Customarily and usually compensates Ex-
empt System Members by paying a salary
but not overtime
(ni) Customarily and usually compensates Ex-
empt System Members by paying a salary
and overtime,
(iv) Customarily and usually compensates Non -
Exempt System Members by paying overtime
after 40 hours per week,
Does not customarily and usually grant com-
pensatory time or other form of overtime
substitute to Exempt System members.
Customarily and usually awards compen-
satory time or other overtime substitute for
Exempt System Members for hours worked
above a predetenTYyed hours threshold (for
example, the Sp ;-wring Agency custom-
arily and usually grants compensatory time
for all hours worked above 60 in a given
week).
Customarily and usually calculates overtime
for Exempt System Members by paying a
predetermined overtime payment for each
hour worked above a predetermined hours
threshold,.
Does not customarily and usually grant com-
pensatory time or other form of overtime
substitute to Non -Exempt System members,.
The daily compensation equivalent calculated
under §208.39(e)(3) of this part for each
Activated Exempt System Member for each
full or partial day during Activation.
The daily compensation equivalent calculated
under §208.39(e)(3) of this part for each
Activated Exempt System Member for each
full or partial day during Activation AND the
dollar value at the time of accrual of the
compensatory time or other overtime sub-
stitute for each Activated Exempt System
Member based on the duration of the Acti-
vation.
The daily compensation equivalent calculated
under §208.39(e)(3) of this part for each
Activated Exempt System Member for each
Mil or partial day during Activation AND the
predetermined overtime payment for each
hour during the Activation above the pre-
viously determined hours threshold for each
Activated Exempt System Member.
For each seven-day period during the Activa-
tion, the hourly wage of each Activated
Non -Exempt System Member for the first
40 hours AND the overtime payment for
each Activated Non -Exempt System Mem-
ber for every hour over 40.
Federal Register / Vol. 70, No. 36 / Thursday, February 24, 2005 / Rules and Regulations
9201
ff the Sponsoring Agency or Participating
Agency " •
And the Sponsoring Agency or Participating
Agency' ' •
Then the following compensation costs are
allowable:
(v) Customarily and usually compensates Non -
Exempt System Members according to a
compensation . plan established under 29
U.S.C. 207(k),
(vi) Activates Personnel, who are customarily
and usually paid an hourly wage according to
the Maximum Pay Rate Table,
(vii) Activates Affiliated Personnel who are cus-
tomarily and usually paid a daily compensa-
tion rate according to the Maximum Pay Rate
Table,
Does not customarily and usually grant com-
pensatory time or other form of overtime
substitute tc•Non-Exempt System Members,.
For each seven-day period during the Activa-
tion, the hourly wage equivalent of each Ac-
tivated Non -Exempt System Member cal-
.culated under §208.39(e)(1) of this part for
the first 40 hours AND the overtime pay-
ment equivalent for each Activated Non -Ex-
empt System Member calculated under
§208.39(e)(1) of this part for every hour
over 40.
For each seven-day period during the Affili-
ated Activation, the hourly wage for each
Activated Affiliated Personnel for the first 40
hours and one and one-half times the hour-
ly wage for each Activated Affiliated Per-
sonnel for every hour over 40.
The daily compensation rate for each Acti-
vated Affiliated Personnel for each tut 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
workweek under 29 U.S.C. 207(a).
(g) Reimbursement for Backfill costs
upon Activation. DHS will reimburse
the cost to Barkfill System Members.
Backfi.11 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
Backfrlled 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.
§ 208.40 Reimbursement of fringe benefit
costs during Activation.
(a) Except as specified in §208.40 (c)
of this subpart, DHS will reimburse the
Sponsoring Agency for fringe benefit
costs incurred during Activation
accord ngI to the following table;
tf the Sponsoring Agency or Participating
Agency' ' '
Then the Sponsoring Agency or Participating
Agency must' ' '
Example
(1) Incurs a fringe .benefit cost based on the
Bill DHS for a pro-rata share of the premium
The City Fire Department incurs a premium of
number of base hours worked by a System
based on the number of base hours worked
3 percent for dental coverage based on the
Member,
during Activation.
number of base hours worked in a week
(53 hours). The City should bit DHS an ad-
ditional 3 percent of the firefighter's con-
verted compensation for the first 40 hours
Activation.
(2) Incurs a fringe benefit cost based on the
Bill DHS for a pro-rata share of the premium
The City Fire Department pays a premium of
number of hours a System Member actually
based on the number of hours each System
12 percent for retirement based on the
worked (base hours and overtime),
. Member worked during Activation.
number of fours worked by a firefighter.
T4 - City should bill DHS an additional 12
tcent of the firefighter's total compensa-
tion during Activation.
(3) Incurs a fringe benefit cost on a yearly basis
Bill DHS for a pro-rata share of those fringe
The City Fire Department pays workers corn -
based on the number of people employed
benefit costs based on the number of non-
pensation premiums into the City risk fund
full-time during the year,
overtime hours worked during Activation by
System Members employed full time.
for the following year, based on the number
of 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 Lull time
firefighters who are System Members.
(i)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
9202 Federal Register/ Vol. 70, No. 36 / Thursday, February 24, 2005 /Rules and Regulations
request for reimbursement under this
section together with identification of
every fringe benefit sought under
§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.
§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.
§ 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.
§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- (2) Non -consumable items. DHS
will reimbarse 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) Conslkmable 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 regar
to the provisions of § 208.39(e)(1) of thi
part, up to the number of hours
specified in the Demobilization Order.
Fringe benefits are reimbursed under
the provisions of § 208.40 of this part.
(b) Costs for personnel rehabilitation.
DHS will reimburse costs incurred for
the compensation, including benefits
and Back61I, 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
Participati g Agency and without regard
to the provisions of § 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
wit 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 durirg
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 amnunt 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.
d . § 208.44 Reimbursement for other costs.
s (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
exppenarnu•e.
(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.
§ 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 inclu(i the
salaries, benefits, and Backtill costs for
Task Force Members and an estimate of
the salaries, benefits and Backfil) costs
required for equipment cache
rehabilitation, The advance of funds
will not include any costs for equipment
purchase.
§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 e third party that DHS
may name, under 44 C R 13.32(g), when
a Sponsoring Agency indicates or
demonstrates that it cannot fulfill its
{
Federal Register/Vol. 70, No. 36/Thursday, February 24, 2005/Rules and Regulations 9203
obligations unde
Agreement.
§§208.47-208.50 [Reserved]
Subpart D—Reimbursement Claims
and Appeals
§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.
§ 20852 Reimbursement procedures.
the Memorandum of Manager any determination made under consent of the Sponsoring Agency, no
§ 206.60 of this part to disallow more than one such time extension will
reimbursement of an item of cost: be allowed for any stage of the
(1) The appeal must be in writing and reimbursement and appeal processes.
submitted within 60 days after receipt of
DHS's written notice of disallowance § 208.64 Administrative and audit
under § 208.60 of this part requirements.
(2) The appeal must contain legal and (a) Non -Federal audit. For Sponsoring
factual justification for the Sponsoring Agencies and States, requirements for
Agency's contention that the cost is non -Federal audit are contained in 44
allowable. CFR 13.26, in accordance with OMB
(3) Within 90 days after DHS receives Circular A-133, Audits of States, Local
an appeal, the Program Manager will Governments, and Non -Profit
review the information submitted, make Organizations.
such additional investigations as (b) Federal audit. DHS or the General
necessary, maize a determination on the Accounting Office may elect to conduct
appeal, and submit written notice of the a Federal audit of any payment made to
determination of the appeal to the a Sponsoring Agency or State,
Sponsoring Agency. § 208.65 Mode of transmission.
(b) Final appeal. (1) If the Program When sending all submissions,
(a) General. A Sponsoring Agency Manager denies the initial appeal, in determinations, and requests for
must present a claim for reimbursement whole or in partthe Sponsoring Agency su le>Lental information under this
to DHS in such manner as the Director may submit a final appeal to the Deputy subpart, all parties must use a means of
specifies . Director. The appeal must be made in
(b) Time for submission. (1) Claims for writing and must be submitted not later delivery that permits both the sender
reimbursement must be submitted than 60 days after receipt of written and addressee to verify the dates of
within 90 days after the end of the notice of DHS's determination of the delivery.
Personnel Rehabilitation Period initial appeal. § 208.66 Reopening of claims for
specified in the Demobilization Order. (2) Within 90 days following the retrospective or retroactive adjustment of
(2) The Director may extend and receipt of a Tina] appeal, the Deputy costs.
specify the time limitation in paragraph Director will render a determination and (a) Upon written request by the
(b)(1) of this section when the notify the Sponsoring Agency, in Sponsoring Agency DHS will reopen the
Sponsoring Agency justifies and writing, of the final disposition of the time period for submission of a request
appeal. for reimbursement after the Sponsoring
(c) Failure to file timely appeal. If the Agency has submitted its request for
Sponsoring Agency does not file an reimbursement, if:
§ 208.60 Determination of claims, appeal within the time periods specified (1) The salary or wage rate applicable
When DHS receives a reviewable in this section, DHS will deem that the to the period of an Activation is
claim for reimbursement, DHS will Sponsoring Agency has waived its right retroactively changed due to the
review the claim to determine whether to appeal any decision that could have execution of a collective bargaining
and to what extent reimbursement is been the subject of an appeal. agreement, or due to the adoption of a
allowable. Except as provided in § 208.63 Request by DHS tor supplemental generally applicable State or local law,
§ 208.63 of this part. DHS will complete information. ordinance or wage order or a cost -of -
its review and give written notice to the living adjustment;
[a) At any stage of the reimbursement
Sponsoring Agency of its determination and appeal processes identified in this (2) The Sponsoring Agency or any
within 90 days after the date DHS Participating Agency incurs an
receives the claim. If DHS determines subpart, DHS may request the additional cost because of a legally-.
that any item of cost is not eligible for Sponsoring Agency to provide binding determination; or
supplemental information that DHS
reimbursement, its notice of d (3) The Deputy Director determines
requests the extension in writing.
§§ 20853-208.59 [Reserved]
considers necessary to et"+timine either
determination will specify the grounds that other extenuating circumstances
§ 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.
§ 208.62 Appeals.
(a) Initial appeal. The Sponsoring
Agency may appeal to the Program
a claim for reimbursement or an appeal.
on which DHS disallowed existed that prevented the Sponsoring
reimbursement. The Sponsoring Agency must exercise Agency from including the adjustment
its best efforts to provide the
supplemental information and must (c) The Sponsoring Agency must
submit to DHS a written response that notify DHS as early as practicable that
includes such supplemental information it anticipates such a request.
as the Sponsoring Agency is able to
provide within 30 days after receiving §§ 208.67-208.70 [Reserved]
DHS's request.
(b) If DHS makes a request for Dated: February 3, 2005.
supplemental information at any stage Michael A. Brown,
of the reimbursement and appeal Under Secretary, Emergency Preparedness
processes, the applicable time within and Response, Department of Homeland
which its determination of the claim or Security.
appeal is to be made will be extended (FR Doc. 05-3192 Filed 2-23-05; 8:45 am)
by 30 days. However, without the BILLING cone eiw-es-P
of costs in its original submission.
Memorandum of Agreement between City of Miami Fire -Rescue
and City of Dania Beach
Appendix "C"
Point of Notification:
Joseph R. Fernandez
Fire Chief
Dania Beach Fire -Rescue
P.O. Box 1708
Dania Beach, Florida 33004
jfernandezAci.dania-beach.fl.us
(305)333-7818 (cellular)
(954) 924-6815 ext. 3720 (office)
Michael Cassano
Deputy Fire Chief
mcassanoci.dania-beach.fl.us
(954) 651-5023 (cellular)
(954) 924-6815 ext. 3722 (office)
On -duty Battalion Chief
(954) 651-5025 (cellular)
(954) 924-6815 ext. 3711 (office)