[Federal Register Volume 67, Number 243 (Wednesday, December 18, 2002)]
[Proposed Rules]
[Pages 77628-77640]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 02-31658]



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Part V





Federal Emergency Managment Agency





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44 CFR Part 208



National Urban Search and Rescue Response System; Proposed Rule

  Federal Register / Vol. 67, No. 243 / Wednesday, December 18, 2002 / 
Proposed Rules  

[[Page 77628]]


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FEDERAL EMERGENCY MANAGEMENT AGENCY

44 CFR Part 208

RIN 3067-AC93


National Urban Search and Rescue Response System

AGENCY: Federal Emergency Management Agency (FEMA).

ACTION: Proposed rule.

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SUMMARY: We (FEMA) propose to standardize the financing, administration 
and operation of the National Urban Search and Rescue Response System, 
a cooperative effort of FEMA, participating State emergency management 
agencies and local public safety agencies across the country. The 
proposed rule addresses the relationship between Urban Search & Rescue 
(US&R) Task Forces and FEMA, funding for preparedness and response 
activities, including the acquisition of equipment and supplies and 
training.

DATES: We invite your comments on this proposed rule and will accept 
them through February 3, 2003.

ADDRESSES: Please send comments to the Rules Docket Clerk, Office of 
the General Counsel, Federal Emergency Management Agency, 500 C Street 
SW., room 840, Washington, DC 20472, (facsimile) (202) 646-4536, or (e-
mail) [email protected].

FOR FURTHER INFORMATION CONTACT: Michael Tamillow, United States Fire 
Administration, Federal Emergency Management Agency, 500 C Street, SW., 
room 326, Washington, DC 20472, (202) 646-2549, or (e-mail) 
[email protected].

SUPPLEMENTARY INFORMATION:

Background

    Section 303 of the Robert T. Stafford Disaster Relief and Emergency 
Assistance Act (Stafford Act), 42 U.S.C. 5144, authorizes the President 
of the United States to form emergency support teams of Federal 
personnel to be deployed in an area affected by a major disaster or 
emergency. T he President delegated this function to the Director of 
the Federal Emergency Management Agency (FEMA) under Executive Order 
12148. Section 306(a) of the Stafford Act authorizes the Federal 
Emergency Management Agency 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 its responsibilities under the Stafford Act. Section 
306(b) authorizes the Director 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) 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) the Director may accept and 
use the services of State or local governments, and use voluntary 
services by individuals or organizations as needed.
    We \1\ (FEMA) established the National Urban Search and Rescue 
Response System (National US&R Response System) under these 
authorities. The system provides specialized lifesaving assistance 
during major disasters or emergencies that the President declares under 
the Stafford Act. US&R operational activities include locating, 
extracting 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.
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    \1\ Throughout this preamble and the proposed rule the terms 
``we'', ``our'' and ``us'' mean FEMA.
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    Created in consultation with State emergency management agencies 
and local public safety agencies, the system is built around a core of 
Task Forces prepared to deploy immediately and initiate US&R operations 
at FEMA's direction. The Task Forces are staffed primarily by local 
fire department and emergency services personnel who are experienced in 
collapsed structure search and rescue operations, incident management, 
and other emergency operational activities. On activation by FEMA, US&R 
Task Forces are activated as temporary federal resources.
    The system presently comprises 28 Task Forces in 19 States, each of 
which is sponsored by a State agency or local public safety agency 
(Sponsoring Organization). While the Sponsoring Organizations are 
solely responsible for the administrative management of their 
respective Task Forces, many invite other public safety agencies in 
their vicinity to contribute personnel and other resources to the Task 
Force. These agencies are Participating Agencies.
    FEMA provides financial support in the form of grants or 
cooperative agreements (Grants) to each of the Sponsoring Organizations 
under the disaster preparedness authorities of the Stafford Act. The 
Sponsoring Organizations use these grants to train Task Force 
personnel, maintain a state of readiness and to acquire necessary 
equipment and supplies. We award and administer Grants under 44 CFR 
Part 13. In return for this financial support, each Task Force must be 
available for deployment as a federal resource when activated by 
FEMA.\2\ Task Forces also must maintain minimum training requirements 
that we prescribe.
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    \2\ The Task Forces also respond to disasters and emergencies in 
their home states as State resources. FEMA does not directly 
reimburse 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 purchased with FEMA grant funds and federal 
property that is in their custody. Subpart C of this Proposed 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 FEMA'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 US&R Task Forces to deliver 
humanitarian assistance abroad under agreements to which FEMA is not 
a party. The Proposed Rule would not affect the relationships 
between USAID and the Task Forces.
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    Separate non-standardized Memoranda of Agreement, which were 
individually negotiated at different stages in the system's 
development, govern the relationship between FEMA and each of the US&R 
Task Forces. In addition, we required the Task Forces to enter into 
separate Cooperative Agreements on forms that our Office of Financial 
Management prescribed. As the National US&R Response System has 
matured, the participants have concluded that it is desirable to 
standardize these relationships through a set of comprehensive 
regulations. We developed the proposed rule with the assistance of the 
National Urban Search and Rescue Advisory Committee and its Legal 
Issues Working Group.
    Adoption of the proposed rule will enable us to standardize our 
agreements with the Task Forces. Following adoption of the final rule, 
we will ask each of the Task Forces to enter into a new, streamlined 
MOA as well as a Preparedness Cooperative Agreement, as described in 
subpart B of the proposed rule and a Response Cooperative Agreement, as 
described in subpart C of the proposed rule. These new, standardized 
agreements will document our relationship with the Sponsoring 
Organizations.\3\
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    \3\ Following adoption of the final rule, FEMA also expects to 
release an Administrative Manual, which will contain system policies 
and explain other federal regulations, and will govern the operation 
of the National US&R Response System. The Administrative Manual will 
be updated periodically.
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Organization of the Proposed Rule

    We divide the proposed rule into five subparts. Subpart A addresses 
the

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organization of the National US&R System, explains the relationship 
among the various components of the system, incorporates by reference 
certain provisions of other FEMA regulations and provides for sanctions 
if US&R regulations and directives are violated.
    Subpart B describes the process through which we provide grant 
funds to the Sponsoring Organizations to maintain Task Force readiness. 
Sponsoring Organizations use these grant funds to administer the Task 
Forces, provide initial and recurrent training\4\, and to acquire and 
maintain a uniform cache of equipment and supplies. Following adoption 
of the final rule, we will ask each Task Force to enter into a 
Preparedness Cooperative Agreement with us. From time to time FEMA will 
purchase equipment and supplies for each Task Force.
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    \4\ FEMA is authorized by sections 306(a) and 621(c) of the 
Stafford Act, 42 U.S.C. Sec. Sec.  5149(a), 5197(c) to federalize 
US&R Task Forces to participate in preparedness activities. US&R 
teams are periodically federalized to participate in FEMA sanctioned 
training exercises, also known as mobilization exercises. During 
these periods, they are not Activated, within the meaning of section 
208.2 of the proposed rule and therefore the provisions of subpart C 
do not apply to FEMA sanctioned training exercises. Funding for 
participation in FEMA sanctioned training exercises may be available 
under section 208.24(b) of the proposed rule.
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    Subpart C addresses the deployment of Task Forces as a federal 
resource and the reimbursement of the Sponsoring Organizations 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 Organization to sign following adoption of the final rule.
    Subpart D establishes the procedures by which Sponsoring 
Organizations may present claims to FEMA for reimbursement of costs 
incurred when we use the Task Forces as federal resources, the 
timeframes in which they must present such claims, and any appeals.
    A glossary of defined terms that we use throughout the rule and in 
subpart A appears in section 208.2. Sub-glossaries of defined terms 
used in subsequent subparts of the rule appear in sections 208.22 
(subpart B), 208.32 (subpart C), and 208.52 (subpart D).

Sectional Analysis

    The sectional analysis does not explain the provisions of each 
section of the proposed rule. We believe that most provisions are self-
explanatory. We focus on providing a detailed explanation of the cost 
neutrality and personnel reimbursement provisions of subpart C because 
we believe that they are more complex than other provisions of the 
proposed rule. We welcome your questions and comments about any of the 
provisions in the proposed rule or this preamble. We will address them 
in the preamble to the final rule.
    Section 208.33 sets forth the principles under which we will 
reimburse Sponsoring Organizations for participating in Alerts and 
Activations. Subsection (a) expresses our policy that participation in 
Alerts and Activations be cost neutral to Sponsoring Organizations and 
Participating Agencies. This commitment is critical to securing the 
participation of system resources. It is unreasonable to put local fire 
departments, which are the predominant sponsors of the Task Forces, at 
risk for the cost of providing emergency services outside of their 
respective jurisdictions. Payments are subject to 44 CFR part 13, 
particularly sections 13.21 (payment) and 13.22 (allowable cost). 
Section 13.22 incorporates various Office of Management and Budget 
circulars that address allowable cost. However, in the event of a 
conflict between this regulation and 44 CFR part 13 or the OMB 
Circulars, this regulation would control.
    Section 208.39 explains how we will compensate Sponsoring 
Organizations for personnel costs during Activations. In order to 
understand section 208.39, one must first understand the employment 
relationships among FEMA, the Sponsoring Organization or Participating 
Agency and the individual. When we deploy individual members of US&R 
Task Forces 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, Task Force members who are 
regularly employed by a Sponsoring Organization or Participating Agency 
retain their concurrent employment relationship with their usual 
employers.\5\ The maintenance of this concurrent employment 
relationship is a fundamental principle of the National US&R System, 
which dates from the inception of the system. We adopted the principle 
after consultations with the States, local governments and public 
safety employee organizations and we intend it to prevent Task Force 
members from suffering a break in their service to the usual employer 
while away on the federal deployment. While on a federal deployment, 
these Task Force members receive pay and benefits from their usual 
employers during the federal deployment just as they would if they were 
not Activated.
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    \5\ In some cases, the relationship between the individual and 
the Sponsoring Organization 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 Organization or Participating Agency where none 
otherwise exists.
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    Section 208.39(a) provides that we will reimburse the Sponsoring 
Organization for personnel costs that result from the Activation and 
are consistent with these regulations. The Sponsoring Organization is 
responsible for reimbursing the personnel costs of its Participating 
Agencies in accordance with the provisions of section 208.39.
    Section 208.39(b) speaks to how we will compensate Sponsoring 
Organizations for overtime costs that might not have been incurred but 
for the federal deployment. Section 7(k) of the Fair Labor Standards 
Act exempts public safety organizations from paying their employees 
overtime under certain circumstances. As interpreted by Department of 
Labor regulations and court decisions, the section 7(k) exemption does 
not apply unless the employee in question is trained in fire 
protection, has the legal authority and responsibility to engage in 
fire suppression, is employed by a public safety agency engaged in fire 
suppression and actually engages in fire suppression at least 80% of 
the time.
    The scope of section 7(k) is frequently litigated and is sometimes 
narrowed as a result of litigation. After reviewing section 7(k), the 
Department of Labor regulations and court decisions, we are uncertain 
whether the rescue activities undertaken by US&R Task Forces are 
analogous to fire suppression. We also note that some Task Force 
personnel will not fall within the section 7(k) exemption because they 
are not regularly employed in fire suppression. It would be unfair not 
to compensate these individuals at an overtime rate, when fellow 
members of their Task Force, who may be volunteers or part-time fire 
service employees, are compensated at an overtime rate. For these 
reasons, we propose to disregard the section 7(k) exemption in 
reimbursing personnel costs and reimburse Sponsoring Organizations for 
regular wages and overtime wages as described in section 208.39(d), (e) 
and (f).\6\ This will not create a windfall for Sponsoring 
Organizations and Participating Agencies. The Sponsoring Organizations 
cannot bill FEMA for

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personnel costs in excess of those that they actually and normally 
incur.
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    \6\ Section 208.40(b) of the Proposed Rule addresses 
reimbursement for differential pay in.
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    Section 208.39(c) establishes a uniform 24-hour tour of duty during 
the federal deployment. We propose to reimburse the Sponsoring 
Organizations for 24 hours of pay for each day that a Task Force member 
is deployed, from his or her arrival at the pre-deployment staging area 
(Point of Arrival) \7\ until his or her release from service (Point of 
Return). This 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 Task Force 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 Task Force members are needed to engage in vital 
lifesaving activities, just as they are in the firehouse.
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    \7\ Certain Task Force members who are Activated will not report 
to a pre-deployment staging area but we will instruct them 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.
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    Fundamentally, we believe that search and rescue professionals who 
are expected to respond on a moment's notice at any time during a 24-
hour period should be compensated for 24 hours of work. Activated Task 
Force Members often work the first 24 to 48 hours of the Activation 
continuously, as this initial period involves packaging the Task Force 
for transport, loading and unloading equipment, attending briefings, 
receiving and adjusting to changes in operational objectives, 
establishing the base of operations and initiating the search for live 
victims. Once the search begins, we control Task Force activities 
during the entire 24 -hour period and they must be available for 
immediate response at any time.
    Section 208.39(g) provides for the reimbursement of backfill 
expenses. The National US&R System depends upon the voluntary 
participation of public safety agencies. We recognize that these public 
safety agencies may be short-handed when some of their personnel are 
away on a federal deployment. If a public safety agency ordinarily 
backfills a position in situations where a regular employee is 
unavailable for a period of time similar to that spent on a US&R 
deployment, e.g., Family and Medical Leave, participation in an 
extended mutual aid assignment, injury or disability, then it may bill 
us for the cost of backfilling the position for the period that the 
incumbent is away on a federal deployment. We propose to reimburse for 
incremental overtime salary and benefit expenses associated with the 
replacement employee. We do not believe that it would be proper to 
reimburse the backfilling agency for the regular salary and overtime 
cost of the replacement employee because the public safety agency would 
have to pay this cost if the federal deployment had not occurred.
    National Environmental Policy Act. 44 CFR 10.8(d)(2)(ii) 
categorically excludes actions that qualify for categorical exclusion, 
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. We 
have not prepared an environmental assessment or environmental impact 
statement for this proposed 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 the Executive Order. 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.
    This proposed rule could have an annual effect on the economy of 
$100 million or more but is not an economically significant rule under 
Executive Order 12866. The rule would establish the relationship 
between Urban Search & Rescue (US&R) Task Forces and FEMA, 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. Average annual Federal 
cooperative agreements with US&R teams do not currently exceed $100 
million. However, we anticipate that the Congress may appropriate funds 
exceeding $100 million to augment the equipment and human resources 
available for search and rescue operations. Although the funding to 
support US&R teams may exceed $100 million, the rule would not impose 
conditions on the recipients or their sponsoring organizations that 
would exceed $100 million annually, or would 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.
    We know of no other conditions that would qualify the rule as a 
``significant regulatory action'' within the definition of section 3(f) 
of the Executive Order. To the extent possible, this rule adheres to 
the principles of regulation as set forth in Executive Order 12866. The 
Office of Management and Budget has not reviewed this rule under the 
provisions of the Executive Order.

Paperwork Reduction Act of 1995

    FEMA 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 
proposed rule, we have submitted a request for Office of Management and 
Budget (OMB) review and approval of a new collection of information, 
which is contained in this proposed rule. OMB will process this request 
for collection of information and notice for comment under its 
clearance procedures in 5 CFR 1320.11. 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 
3067-0206, which expires February 29, 2004, are:
    Form Numbers: SF 424, Application for Federal Assistance; FEMA Form 
20-10, Financial Status Report; FEMA Form 20-16, Summary Sheet for 
Assurances and Certifications; FEMA Form 20-16A, Assurances--Non-
Construction Programs; FEMA Form 20-16C, Certifications Regarding 
Lobbying; Debarment, Suspension and Other

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Responsibility Matters; and Drug-Free Workplace Requirements; FEMA Form 
20-20, Budget Information--Non-Construction Programs; and SF LLL, 
Disclosure of Lobbying Activities.
    Abstract: This information collection is to implement the National 
Urban Search and Rescue System (US&R), by which FEMA provides 
specialized lifesaving assistance during major disaster or emergency. 
US&R operational activities include locating, extracting 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 FEMA 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 previously approved 
by OMB under Control Number 3067-0206.
    Affected Public: State, local and Indian tribal governments.
    Estimated Total Annual Burden Hours: 803 hours. A breakdown of the 
burden follows:

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                                          No. of         Frequency of      Hours per response     Annual burden
             FEMA forms                 responders         response        and recordkeeping          hours
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                                                  (A)               (B)  (C)..................       (A x B x C)
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The following forms were approved
 under 3067-0206:
SF-424 Application for Federal                     28                 1  1 hour...............                28
 Assistance.
FEMA Form 20-10 Financial Status                   28                 1  1 hour...............                28
 Report.
FEMA Forms 20-16, 20-16A, 20-16C,                  28                 1  30 minutes...........                14
 Summary Sheet for Assurances and
 Certifications.
SF LLL, Disclosure of Lobbying                     28                 1  10 minutes...........                 5
 Activities.
FEMA Form 20-20, Budget Information                28                 2  9 hours..............               504
 Non-Construction Programs and
 Budget Narrative.
SF 270, Request for Advance or                     28                 2  4 hours..............               224
 Reimbursement.
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    Subtotal.......................  ................               224  .....................               803

    OMB Number: New.
    Abstract: In order to implement the US&R program FEMA must collect 
certain types of information not included in OMB Control Number 3067-
0206, 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:

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                                                                                 Hours Per        Annual burden
               FEMA forms                     No. of         Frequency of       response and     hours  (A x B x
                                          respondents (A)    response  (B)   recordkeeping.(C)         C)
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The following are new collections:
Narrative Statement....................                28                 2                  4               224
Progress Reports.......................                28                 2                  2               112
Extension or Change Requests...........                 5                 1                  1                 5
Audits of States, Local Governments,                   28                 1                 30               840
 and Non-Profit Organizations..........
Memoranda of Agreement.................                28                 1                \8\               \8\
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        Subtotal.......................  ................               145  .................              1181
                                        ===================
        Total..........................  ................               369  .................              1984
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\8\ After we publish the final US&R rule we will prepare a standardized, streamlined memorandum of agreement in
  consultation with the National US&R Advisory Committee, which represents the 28 US&R sponsoring organizations,
  and other interested parties. When completed we will make a second Paperwork Reduction Act submission to OMB.

    Estimated times and costs: The approximate annual salary of State 
and local staff who will complete the forms is $35,000. The approximate 
hourly rate of pay is $18.90 ($35,000 divided by 1850 hours). The total 
cost to grantees is estimated to be $37,498.
    The cost to FEMA is largely Headquarters grants personnel salary 
costs because reviewing and analyzing the information collected by 
these forms--for all FEMA grant programs, not just US&R grants--is a 
significant portion of their annual work. We estimate that for the US&R 
program Headquarters would expend approximately 672 hours on analysis, 
or an average of 24 hours per program. We estimate the cost to FEMA to 
be $14,112 (672 hours times $21 per hour of staff work). Printing costs 
are minimal because the forms are available in electronic format.
    The total annual estimated time and costs are 1984 hours and 
$37,498 cost to applicants and $14,112 cost to FEMA. 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 FEMA regulations.
    Comments: We solicit your written comments to: (a) Evaluate whether 
the proposed data collection is necessary for the proper performance of 
the agency, including whether the information will have practical 
utility; (b) evaluate the accuracy of our estimate of the burden of the 
proposed collection of information, including the validity of the 
methodology and assumptions used; (c) enhance the quality, utility, and 
clarity of the information to be

[[Page 77632]]

collected; and (d) minimize the burden of the collection of information 
on those who are to respond, including through the use of appropriate 
automated, electronic, mechanical, or other technological collection 
techniques or other forms of information technology, e.g., permitting 
electronic submission of responses. Comments should be received within 
60 days of the date of this notice.

ADDRESSES: Interested persons should submit written comments to Muriel 
B. Anderson, Chief, Records Management Section, Program Services and 
Systems Branch, Facilities Management and Services Division, 
Administration and Resource Planning Directorate, Federal Emergency 
Management Agency, 500 C Street, SW., room 316, Washington, DC 20472, 
or (e-mail) [email protected].

FOR FURTHER INFORMATION CONTACT: Contact Michael Tamillow, United 
States Fire Administration, Urban Search and Rescue Division, Federal 
Emergency Management Agency, 500 C Street, SW., Washington, DC 20472, 
telephone (202) 646-3456, facsimile (202) 646-2549, or e-mail 
[email protected] for additional information. You may contact 
Ms. Anderson for copies of the proposed collection of information at 
telephone number (202) 646-2625 or facsimile number (202) 646-3347 or 
e-mail [email protected].

Executive Order 13132 Federalism--Federalism Summary Impact Statement

    The proposed rule does not have federalism implications as defined 
in Executive Order 13132 . The rule imposes no mandates on State or 
local governments; participation in the National US&R Response System 
is strictly voluntary. Moreover, one of the most significant objectives 
of this program is to build state and local US&R capability. The US&R 
program recognizes the primary role of state and local governments in 
responding to disasters and emergencies. Equipment and supplies 
purchased with federal funds may be used to respond to in-state 
disasters and emergencies. The teams may only be deployed across state 
lines when released by their home state. The assistance these teams 
provide, like other assistance under the Stafford Act, is only 
furnished when the combined state and local capabilities of the 
receiving state are exceeded and its Governor requests the assistance.
    While this rule does not have federalism implications, we developed 
it through a collaborative process with state and local 
representatives. As noted above, the Legal Issues Working Group, a 
subcommittee of the National US&R Advisory Committee, developed the 
original draft of these regulations. The National US&R Advisory 
Committee presented a draft to FEMA. The working group and the advisory 
committee both comprised federal, state and local officials, as well as 
representatives of labor organizations some of whose members serve on 
the Task Forces.

List of Subjects in 44 CFR Part 208

    Disaster assistance, Grant programs.
    Accordingly, we propose to add part 208 to Title 44, Chapter 1 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.
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 United States Fire Administrator.
208.6 System Resource reports.
208.7 Sanctions for violations of regulations or System orders.
208.8 Code of conduct.
208.9 Agreements between Sponsoring Organizations and Participating 
Agencies.
208.10 Other regulations.
208.11 Federal status of System Members.
Sec.  208.12-208.20 [Reserved].
Subpart B--Preparedness Cooperative Agreements
208.21 Purpose.
208.22 Definitions of terms used in this subpart.
208.23 Preparedness Cooperative Agreement process.
208.24 Allowable costs under Preparedness Cooperative Agreements.
208.25 Purchase and maintenance of items not listed on Equipment 
Cache List
208.26 Obsolete equipment.
208.27 Accountability.
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 Organizations 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.
208.46-208.50 [Reserved]
Subpart D--Reimbursement Claims and Appeals
208.51 General.
208.52 Definitions of terms used in this subpart.
208.53 Reimbursement procedures.
208.54-208.60 [Reserved]
208.60 Determination of claims.
208.61 Payment of claims.
208.62 Appeals.
208.63 Request by FEMA 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 to 5206; Reorganization Plan No. 3 of 
1978, 43 FR 41943, 3 CFR, 1978 Comp., p. 329; E.O. 12127, 44 FR 
19367, 3 CFR, 1979 Comp., p. 376; E.O. 12148, 44 FR 43239, 3 CFR, 
1979 Comp., p. 412.

Subpart A--General


Sec.  208.1  Purpose and scope of this part.

    (a) Purpose. The purpose of part 208 is to prescribe policies and 
procedures pertaining to FEMA's National Urban Search and Rescue 
Response System.
    (b) Scope. This part applies to Sponsoring Organizations 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.
    This part does not apply to reimbursement under part 206, Subpart 
H, of this chapter.


Sec.  208.2  Definitions of terms used in this part.

    (a) General. Any capitalized word in this part is a defined term 
unless such capitalization results from the application of standard 
capitalization or style rules for Federal regulations. The following 
definitions have general applicability throughout this part:
    Activated or Activation means the status of a System resource 
placed at the direction, control and funding of FEMA in response to, or 
in anticipation of, a presidential declaration of a major disaster or 
emergency under the Stafford Act.

[[Page 77633]]

    Activation Order means the FEMA communication placing a System 
resource under the direction, control, and funding of FEMA.
    Administrator means the Administrator of the United States Fire 
Administration, or such officer's functional or designated 
representative.
    Advisory means a FEMA communication to System resources indicating 
that an event has occurred or FEMA anticipates will occur that may 
require Alert or Activation of System resources.
    Alert means the status of a System resource's readiness that is 
begun by an Alert Order indicating that FEMA may Activate the System 
resource.
    Alert Order means the FEMA communication that places a System 
resource on Alert status.
    Assistance Officer means the FEMA employee who has legal authority 
to bind FEMA by awarding and amending Cooperative Agreements.
    Backfill means the personnel practice of temporarily replacing a 
person in his or her usual position with another person.
    Cooperating Agency means a State or Local Government that has 
executed a Cooperative Agreement to provide Technical Specialists.
    Cooperative Agreement means a legal instrument between FEMA and a 
Sponsoring Organization or Cooperating Agency that provides funds to 
accomplish a public purpose and anticipates substantial federal 
involvement during the performance of the contemplated activity.
    Daily Cost Estimate means a Sponsoring Organization'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 Administrator means the Deputy Administrator of the United 
States Fire Administration.
    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 FEMA Disaster Search Canine 
Readiness Evaluation criteria for Type II or both Type II and Type I.
    Emergency means any occasion or instance for which, in the 
determination of the President, Federal assistance is needed to 
supplement State and local efforts and capabilities to save lives and 
to protect property and public health and safety, or to lessen or avert 
the threat of a catastrophe in any part of the United States.
    Equipment Cache List means the FEMA-issued list that identifies the 
maximum quantities and types of equipment and supplies that a 
Sponsoring Organization and Participating Agencies may purchase and 
maintain with FEMA 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.
    FEMA means the Federal Emergency Management Agency.
    IST or Incident Support Team means a multi-disciplinary System 
resource composed of individuals brought together to provide management 
control and logistical support for federal US&R resources and technical 
advice and assistance to Local Governments.
    Local Government means any county, city, village, town, district, 
or other political subdivision of any State; any federally-recognized 
Indian tribe or authorized tribal organization; and any Alaska Native 
village or organization.
    Major Disaster means any natural catastrophe (including any 
hurricane, tornado, storm, high water, wind driven water, tidal wave, 
tsunami, earthquake, volcanic eruption, landslide, mudslide, snowstorm, 
or drought), or regardless of cause, any fire, flood, or explosion, in 
any part of the United States, that in the determination of the 
President, causes damage of sufficient severity and magnitude to 
warrant major disaster assistance under the Stafford Act to supplement 
the efforts and available resources of States, Local Governments, and 
disaster relief organizations in alleviating the damage, loss, 
hardship, or suffering caused thereby.
    Memorandum of Understanding (MOU) means the document signed by 
FEMA, a Sponsoring Organization and its State that describes the 
relationship of the parties with respect to the National Urban Search & 
Rescue Response System.
    Participating Agency means a Local Government or non-profit 
organization that has executed an agreement with a Sponsoring 
Organization to participate in the National US&R Response System.
    Personnel Rehabilitation Period means the period allowed by FEMA 
for a person's rehabilitation to normal conditions of living following 
an Activation.
    Preparedness Cooperative Agreement means the agreement between FEMA 
and a Sponsoring Organization to develop and maintain System 
capabilities and operational readiness.
    Program Manager means the individual within FEMA who is responsible 
for day-to-day administration of the National US&R Response System.
    Program Office means the organizational entity within FEMA that is 
responsible for day-to-day administration of the National US&R Response 
System.
    Response Cooperative Agreement means an agreement between FEMA and 
a Sponsoring Organization for reimbursement of allowable expenditures 
incurred as a result of an Alert or Activation.
    Sponsoring Organization means a State or Local Government that has 
executed an MOU with FEMA 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 5260.
    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 FEMA.
    System Member means any Task Force Member, IST Member, Technical 
Specialist, Support Specialist or Disaster Search Canine Team.
    Task Force means an integrated US&R organization of multi-
disciplinary resources with common communications and a leader, 
organized and administered by a Sponsoring Organization and meeting 
FEMA standards.
    Task Force Member means a person occupying a position on a Task 
Force.
    Technical Specialist means a person participating in the System 
contributing

[[Page 77634]]

technical knowledge and skill who may be placed on Alert or Activated 
as a single resource and not as a part of an IST or a Task Force.
    US&R means urban search and rescue, the process of searching for, 
extricating, and providing for the immediate medical stabilization of 
victims who are entrapped in collapsed structures.
    We or our or us means the Federal Emergency Management Agency.
    (b) Additional Definitions. Definitions that apply only to 
individual subparts of part 208 are in those subparts.


Sec.  208.3  Authority for the National US&R Response System.

    (a) Enabling legislation. FEMA established and operates the System 
under authority of sections 303, 306(a), 306(b), 403(a)(3)(B) and 
621(c) of the Stafford Act, 42 U.S.C. 5144, 5149(a), 5149(b), 
5170b(a)(3)(B) and 5197(c) respectively.
    (b) Implementing Plan. The Federal Response Plan identifies FEMA as 
the primary federal agency with responsibility for Emergency Support 
Function 9, Urban Search and Rescue.


Sec.  208.4  Purpose for system.

    It is our policy to develop and provide a national system of 
standardized US&R resources to respond to Emergencies and Major 
Disasters that are beyond the capabilities of affected State and Local 
Governments.


Sec.  208.5  Authority of the Administrator.

    (a) Participation in activities of the System. The Administrator is 
responsible for determining participation in the System and any 
activity thereof, including but not limited to whether a System 
resource is operationally ready and can be Activated.
    (b) Standards for and measurement of System efficiency and 
effectiveness. In addition to the authority provided in Sec. 206.13 of 
this chapter, the Administrator may establish performance standards and 
assess the efficiency and effectiveness of System resources.


Sec.  208.6  System resource reports.

    (a) Reports to Administrator. The Administrator may request reports 
from any System resource relating to its activities as part of the 
System.
    (b) Reports to FEMA Regional Directors. Any FEMA Regional Director 
may request through the Administrator reports from any System resource 
used within or based within the Regional Director's jurisdiction.
    (c) Audits, investigations, studies and evaluations. FEMA and the 
General Accounting Office may conduct audits, investigations, studies, 
and evaluations as necessary. Sponsoring Organizations, Participating 
Agencies and System Members are expected to cooperate fully in such 
audits, investigations, studies and evaluations.


Sec.  208.7  Sanctions for violations of regulations or System orders.

    (a) Sanctions for knowing violations. The Administrator may impose 
a sanction on any State or Sponsoring Organization whose representative 
knowingly violates a regulation or System Order, including knowingly 
submitting a false or misleading request for reimbursement or knowingly 
submitting a request for reimbursement of a non-reimbursable expense.
    (b) Sanctions for other violations. The Administrator may impose a 
sanction on any State or Sponsoring Organization for other violations 
of regulations or System Orders including significant or repeated 
failure of the State or Sponsoring Organization to conform to the 
standards and procedures of the System.
    (c) Other authority for sanctions. Nothing in this section limits 
or precludes the application of other authority to impose sanctions.
    (d) Range of sanctions. Sanctions may include but are not limited 
to censure, suspension, or removal from the System.


Sec.  208.8  Code of conduct.

    The Administrator will develop and implement a code of conduct for 
System Members while acting under FEMA's direction and control. Nothing 
in this section or our code of conduct will limit the authority of a 
Sponsoring Organization, Participating Agency or Cooperating Agency to 
apply its own code of conduct to its System Members or employees. If 
our code is more restrictive, it controls.


Sec.  208.9  Agreements between Sponsoring Organizations and 
Participating Agencies.

    Every agreement between a Sponsoring Organization and a 
Participating Agency regarding the System must include a provision 
making the rules in this part applicable to the Participating Agency 
and its employees who engage in System activities.


Sec.  208.10  Other regulations.

    The following provisions of title 44 CFR, Chapter 1 also apply to 
the program in this part:
    (a) Section 206.9, which deals with our non-liability in certain 
circumstances.
    (b) Section 206.11, which prescribes nondiscrimination in the 
provision of disaster assistance.
    (c) Section 206.14, which deals with criminal and civil penalties.
    (d) Section 206.15, which permits recovery of assistance by us.


Sec.  208.11  Federal Status of System Members.

    The Administrator will appoint all Activated System Members as 
temporary excepted volunteer employees of the United States Government. 
The Administrator may appoint a System Member who participates in Alert 
activities as such an employee of the United States Government. The 
Administrator may also appoint each System Member who participates in 
FEMA sanctioned preparedness activities as such an employee of the 
United States Government. We intend these appointments to secure 
protection for such employees 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 Organization, Cooperating Agency or Participating Agency. 
System Members whom we appoint as temporary excepted volunteer 
employees of the United States Government 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 organization.


Sec. Sec.  208.12--208.20  Reserved

Subpart B--Preparedness Cooperative Agreements


Sec.  208.21  Purpose.

    Subpart B provides guidance on the administration of Preparedness 
Cooperative Agreements.


Sec.  208.22  Definitions of terms used in this subpart.

    Project Manager means the Sponsoring Organization's primary point 
of contact for matters related to the Preparedness Cooperative 
Agreement.
    Program Manager means the FEMA official responsible for developing 
statements of work for Cooperative Agreements and initiating amendments 
or awards under such agreements by developing and funding requisitions.


Sec.  208.23  Preparedness Cooperative Agreement process.

    (a) Application. To obtain FEMA funding for an award or amendment 
of

[[Page 77635]]

a Preparedness Cooperative Agreement, the Sponsoring Organization must 
submit an application. The application must be in a form that the 
Assistance Officer specifies.
    (b) Award. We will award a Preparedness Cooperative Agreement with 
each Sponsoring Organization to provide Federal funding to develop and 
maintain System resource capabilities and operational readiness. For 
the purposes of the Preparedness Cooperative Agreement, the Sponsoring 
Organization will be considered the ``recipient.''
    (c) Amendment. (1) Procedure. Absent special circumstances, we will 
fund and amend Preparedness Cooperative Agreements on an annual basis. 
Before amendment, the Assistance Officer will issue a call for 
Cooperative Agreement amendment applications. The Assistance Officer 
will specify required application forms and supporting documentation to 
be submitted with the application.
    (2) Period of performance. Absent special circumstances, the period 
of performance for Preparedness Cooperative Agreements will be 1 year 
from the date of award. The Assistance Officer may allow for an 
alternate period of performance with the approval of the Administrator.
    (3) Assistance Officer. The Assistance Officer is the only 
individual authorized to award or modify a Preparedness Cooperative 
Agreement.
    (d) Award amounts. The Administrator will determine award amounts 
on an annual basis. A Task Force is eligible for an annual award only 
if the Program Manager has received and approved the Task Force's 
current-year Daily Cost Estimate.
    (e) FEMA priorities. The Administrator will establish overall 
priorities for the use of Preparedness Cooperative Agreement funds 
taking into consideration the results of readiness evaluations and 
actual Activations, our overall priorities, and other factors, as 
appropriate.
    (f) Cost sharing. The Administrator may subject Preparedness 
Cooperative Agreement awards to cost sharing provisions. In the call 
for Preparedness Cooperative Agreement amendment applications, the 
Assistance Officer must inform Sponsoring Organizations about any cost 
sharing obligations.
    (g) Sponsoring Organization priorities. The Sponsoring Organization 
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.


Sec.  208.24  Allowable costs under Preparedness Cooperative 
Agreements.

    System Members may spend Federal funds that we provide under any 
Preparedness Cooperative Agreement and any required matching funds 
under 44 CFR 13.22 and this section to pay reasonable, allowable, 
necessary and allocable costs that directly support System activities, 
including the following:
    (a) Administration, including:
    (1) Management and administration of day-to-day System activities 
such as personnel compensation and benefits relating to System 
maintenance and development, record keeping, inventory of equipment, 
and correspondence;
    (2) Travel to and from System activities, meetings, conferences, 
training, drills and exercises;
    (3) Tests and examinations, including vaccinations, immunizations 
and other tests that are not normally required or provided in the 
course of a System Member's employment, and that FEMA requires to meet 
our standards.
    (b) Training:
    (1) Development and delivery of, and participation in, System-
related training courses, exercises, and drills;
    (2) Construction, maintenance, lease or purchase of System-related 
training facilities or materials;
    (3) Personnel compensation expenses, including overtime and other 
related expenses associated with System-related training, exercises, or 
drills;
    (4) System-required evaluations and certifications other than the 
certifications that we require System Members to possess at the time of 
entry into the System. For instance, we 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 FEMA-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 our approval 
through the Federal Excess Property program, except as provided in 
Sec. 208.25 of this part;
    (4) Purchase, construction, maintenance or lease of storage 
facilities and associated equipment for System equipment and supplies.
    (d) Disaster search canine expenses limited to:
    (1) Procurement for use as a System resource;
    (2) Training and certification expenses;
    (3) Veterinary care.
    (e) Management and administrative costs, actually incurred but not 
otherwise specified in this section that directly support the 
Sponsoring Organization's US&R capability, provided that such costs do 
not exceed 7.5 percent of the award/amendment amount.


Sec.  208.25  Purchase and maintenance of items not listed on Equipment 
Cache List.

    (a) Requests for purchase or maintenance of equipment and supplies 
not appearing on the Equipment Cache List, or that exceed the number 
specified in the Equipment Cache List, must be made in writing to the 
Program Manager. No Federal funds provided under any Preparedness 
Cooperative Agreement may be expended to purchase or maintain any 
equipment or supply item unless:
    (1) The equipment and supplies directly support the Sponsoring 
Organization's US&R capability;
    (2) The Program Manager approves the expenditure and gives written 
notice of his or her approval to the Sponsoring Organization before the 
Sponsoring Organization purchases the equipment or supply item.
    (b) Maintenance of items approved for purchase under this section 
is eligible for reimbursement, except as provided in Sec. 208.26 of 
this subpart.


Sec.  208.26  Obsolete equipment.

    (a) The Administrator will periodically identify obsolete items on 
the Equipment Cache List and provide such information to Sponsoring 
Organizations.
    (b) Neither funds that we provide nor matching funds required under 
a Preparedness Cooperative Agreement may be used to maintain or repair 
items that FEMA has identified as obsolete.


Sec.  208.27  Accountability for use of funds.

    The Sponsoring Organization is accountable for the use of funds as 
provided under the Preparedness Cooperative Agreement.


Sec. Sec.  208.28--208.30  [Reserved]

SUBPART C--RESPONSE COOPERATIVE AGREEMENTS


Sec.  208.31  Purpose.

    Subpart C provides guidance on the administration of Response 
Cooperative Agreements.


Sec.  208.32  Definitions of terms used in this subpart.

    Affiliated Personnel means individuals not normally employed by a 
Sponsoring Organization or

[[Page 77636]]

Participating Agency and individuals normally affiliated with a 
Sponsoring Organization or Participating Agency as volunteers.
    Demobilization Order means a FEMA communication that terminates an 
Alert or Activation and identifies cost and time allowances for 
rehabilitation.
    Exempt means any System Member who is exempt from 29 U.S.C. 201 et 
seq. pertaining to overtime compensation and other labor standards.
    Maximum Pay Rate Table means the FEMA-issued list that identifies 
the maximum pay rates for selected System positions, and whether that 
position is compensated on an hourly or daily basis, that may be used 
for reimbursement of Affiliated Personnel compensation. The Maximum Pay 
Rate Table does not apply to System members whom a Sponsoring 
Organization or Participating Agency employ.
    Mobilization means the process of assembling equipment and 
personnel in response to an Alert or Activation.
    Non-Exempt means any System Member who is covered by 29 U.S.C. 201 
et seq.
    Rehabilitation means the process of returning personnel and 
equipment to a pre-incident state of readiness after we terminate an 
Activation.


Sec.  208.33  Allowable costs.

    (a) Cost neutrality. Our policy is that an Alert or Activation 
should be cost neutral to Sponsoring Organizations and Participating 
Agencies. To make an Alert or Activation cost-neutral, we will 
reimburse under this subpart all reasonable, allowable, necessary and 
allocable costs that a Sponsoring Organization or Participating Agency 
incurs during the Alert or Activation.
    (b) Actual costs. Notwithstanding any other provision of this 
chapter, we will not reimburse a Sponsoring Organization or 
Participating Agency for any costs greater than those that the 
Sponsoring Organization or Participating Agency actually incurred 
during an Alert, Activation or Rehabilitation.
    (c) Normal or predetermined practices. Consistent with OMB 
Circulars A-87 and A-102, Sponsoring Organizations and Participating 
Agencies must adhere to their own normal and predetermined practices 
and policies of general application when requesting reimbursement from 
us except as we set out in this subpart.
    (d) Indirect costs not allowed. Except for costs included in the 
administrative and management costs allowance established by 
Sec. 208.41, indirect costs are not allowable.


Sec.  208.34  Agreements between Sponsoring Organizations and others.

    Sponsoring Organizations are responsible for executing such 
agreements with Participating Agencies and Affiliated Personnel as may 
be necessary to implement the Sponsoring Organization's Response 
Cooperative Agreement with us. Those agreements must identify 
established hourly or daily rates of pay of System Members. The hourly 
or daily rates of pay for Affiliated Personnel must be in accordance 
with, and must not exceed the maximum pay rates contained in the then-
current Maximum Pay Rate Table.


Sec.  208.35  Reimbursement for Advisory.

    We will not reimburse costs incurred during an Advisory.


Sec.  208.36  Reimbursement for Alert.

    (a) Allowable costs. We will reimburse costs incurred during an 
Alert, up to the dollar limit specified in the Alert Order, for the 
following activities:
    (1) Personnel costs, including backfill, incurred to prepare for 
Activation.
    (2) Transportation costs relating to hiring, leasing, or renting 
vehicles and drivers.
    (3) The administrative allowance provided in Sec. 208.41.
    (4) Food and beverages for Task Force Members and Support 
Specialists when we do not provide meals during the Alert. We will 
limit food and beverage reimbursement to the amount of the then-current 
Federal meals daily allowance published in the Federal Register for the 
locality where such food and beverages were provided, multiplied by the 
number of personnel who received them.
    (b) Calculation of Alert Order dollar limit. The Alert Order dollar 
limit will equal:
    (1) An allowance of 10 percent of the Task Force's Daily Cost 
Estimate; and
    (2) A supplemental allowance of 1 percent of the Task Force's Daily 
Cost Estimate for each 24-hour period beyond the first 72 hours of 
Alert.
    (c) Non-allowable costs. We will not reimburse costs incurred or 
relating to the leasing, hiring or chartering of aircraft or the 
purchase of any equipment, aircraft, or vehicles.


Sec.  208.37  Reimbursement for equipment and supply costs incurred 
during Activation.

    (a) Allowable costs. We 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 Administrator 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. We will not reimburse costs incurred for 
items that are not listed on the Equipment Cache List; for items 
purchased greater than the cost or quantity identified in the Equipment 
Cache List; or for any purchase of non-expendable items that duplicate 
a previous purchase under a Preparedness or Response Cooperative 
Agreement.


Sec.  208.38  Reimbursement for re-supply and logistics costs incurred 
during Activation.

    With the exception of emergency procurement authorized in the 
Activation Order, and replacement of consumable items provided for in 
Sec. 208.43(a)(2) of this subpart, we 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 Incident Support Team.


Sec.  208.39  Reimbursement for personnel costs incurred during 
Activation.

    (a) Compensation. We will reimburse the Sponsoring Organization for 
costs incurred for the compensation of each Activated System Member 
during Activation. Reimbursement of compensation costs for Activated 
Support Specialists will be limited to periods of time during which 
they were actively supporting the Activation or traveling to or from 
locations at which they were actively supporting the Activation. The 
provisions of Sec. 208.40 of this part govern costs incurred for 
providing fringe benefits to System Members.
    (b) Public Safety Exemption not applicable. We will reimburse 
Sponsoring Organizations 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, we will reimburse Sponsoring 
Organizations on an overtime basis for any hours worked by Non-Exempt 
System Members greater than 40 hours during a regular work week.
    (c) Tour of duty. The tour of duty for all Activated System Members 
will be 24 hours. We will reimburse the Sponsoring Organization for 
salary and

[[Page 77637]]

overtime costs incurred in compensating System Members for meal periods 
and regularly-scheduled sleep periods during Activation. Activated 
System Members are considered ``on-duty'' and must be available for 
immediate response at all times during Activation.
    (d) Regular Rate. The regular rate for purposes of calculating 
allowable salary and overtime costs is the amount determined in 
accordance with Sec. 208.39(e)(1) through (3) of this subpart.
    (e) Procedures for calculating compensation during Activation. A 
Sponsoring Organization 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 work week;
    (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 Organization's request for 
reimbursement; and
    (5) Submit a request for reimbursement under Sec.  208.52 of this 
part according to the following table:

------------------------------------------------------------------------
                               And the sponsoring
      If the sponsoring          organization or     Then the following
       organization or            participating      compensation costs
   participating agency--           agency--           are allowable--
------------------------------------------------------------------------
(i) Customarily and usually   Does not customarily  The daily
 compensates Exempt System     and usually grant     compensation
 Members by paying a salary,   compensatory time     equivalent
 but not overtime.             or other form of      calculated under
                               overtime substitute   Sec.   208.39(e)(3)
                               to Exempt System      for each Activated
                               members.              Exempt System
                                                     Member for each
                                                     full or partial day
                                                     during Activation.
(ii) Customarily and usually  Customarily and       The daily
 compensates Exempt System     usually awards        compensation
 Members by paying a salary    compensatory time     equivalent
 but not overtime,.            or other overtime     calculated under
                               substitute for        Sec.   208.39(e)(3)
                               Exempt System         for each Activated
                               Members for hours     Exempt System
                               worked above a        Member for each
                               predetermined hours   full or partial day
                               threshold (for        during Activation
                               example, the          AND the dollar
                               Sponsoring            value at the time
                               Organization          of accrual of the
                               customarily and       compensatory time
                               usually grants        or other overtime
                               compensatory time     substitute for each
                               for all hours         Activated Exempt
                               worked above 60 in    System Member based
                               a given week).        on the duration of
                                                     the Activation.
(iii) Customarily and         Customarily and       The daily
 usually compensate Exempt     usually calculates    compensation
 System Members by paying a    overtime for Exempt   equivalent
 salary and overtime.          System Members by     calculated under
                               paying a              Sec.   208.39(e)(3)
                               predetermined         for each Activated
                               overtime payment      Exempt System
                               for each hour         Member for each
                               worked above a        full or partial day
                               predetermined hours   during Activation
                               threshold.            AND the
                                                     predetermined
                                                     overtime payment
                                                     for each hour
                                                     during the
                                                     Activation above
                                                     the previously
                                                     determined hours
                                                     threshold for each
                                                     Activated Exempt
                                                     System Member
(iv) Customarily and usually  Does not customarily  For each seven-day
 compensates Non-Exempt        and usually grant     period during the
 System Members by paying      compensatory time     Activation, the
 overtime after 40 hours per   or other form of      hourly wage
 week.                         overtime substitute   equivalent of each
                               to Non-Exempt         Activated Non-
                               System members,.      Exempt System
                                                     Member for every
                                                     hour over 40.
(v) Customarily and usually   Does not customarily  For each seven-day
 compensates Non-Exempt        and usually grant     period during the
 System Members according to   compensatory time     Activation, the
 a compensation plan           or other form of      hourly wage
 established under 29 U.S.C.   overtime substitute   equivalent of each
 207(k).                       to Non Exempt         Activated Non-
                               System Members,.      Exempt System
                                                     Member calculated
                                                     under Sec.
                                                     208.39(e)(1) for
                                                     the first 40 hours
                                                     AND the overtime
                                                     payment equivalent
                                                     for each Activated
                                                     Non-Exempt System
                                                     Member calculated
                                                     under Sec.
                                                     208.39(e)(1) for
                                                     every hour over 40.
(vi) Activates Affiliated     ....................  For each seven-day
 Personnel, who are                                  period during the
 customarily and usually                             Activation, the
 paid an hourly wage                                 hourly wage for
 according to the Maximum                            each Activated
 Pay Rate Table.                                     Affiliated
                                                     Personnel for the
                                                     first 40 hours and
                                                     one and one-half
                                                     times the hourly
                                                     wage for each
                                                     Activated
                                                     Affiliated
                                                     Personnel for every
                                                     hour over 40.
(vii) Activates Affiliated    ....................  The daily
 Personnel who are                                   compensation rate
 customarily and usually                             for each Activated
 paid a daily compensation                           Affiliated
 rate according to the                               Personnel for each
 Maximum Pay Rate Table.                             full or partial day
                                                     during the
                                                     Activation.
------------------------------------------------------------------------

    (f) Reimbursement of additional salary and overtime costs. We will 
reimburse any identified additional salary and overtime cost incurred 
by a Sponsoring Organization as a result of the temporary conversion of 
a Non-Exempt System Member normally compensated under 29 U.S.C. 207(k) 
to a 40-hour work week under 29 U.S.C. 207(a).
    (g) Reimbursement for backfill costs upon Activation. We will 
reimburse the cost to backfill System Members. Backfill costs consist 
of the expenses generated by filling the position in which the 
Activated System Member should have been working. These costs are 
calculated by subtracting the non-overtime compensation, including 
fringe benefits, of Activated System Members from the total costs (non-
overtime and overtime compensation, including fringe benefits) paid to 
backfill the Activated System Members. Backfill reimbursement is 
available only for those positions that are normally backfilled by the 
Sponsoring Organization or Participating Agency during Activation. 
Employees exempt under the Fair Labor Standards Act (FLSA) not normally 
backfilled by the Sponsoring Organization or

[[Page 77638]]

Participating Agency are not eligible for backfill during Activation.


Sec.  208.40  Reimbursement of fringe benefit costs during Activation.

    (a) Except as specified in paragraph (c) of this section, we will 
reimburse the Sponsoring Organization for fringe benefit costs incurred 
during Activation according to the following table:

----------------------------------------------------------------------------------------------------------------
    If the sponsoring organization or         Then the sponsoring organization or
         participating  agency--                  participating  agency must                   Example
----------------------------------------------------------------------------------------------------------------
(1) Incurs a fringe benefit cost based on  Bill us for a pro-rata share of the       The City Fire Department
 the number of base hours worked by a       premium based on the number of base       incurs a premium of 3
 System Member,                             hours workedhours worked during           percent for dental
                                            Activation.                               coverage based on the
                                                                                      number of base hours
                                                                                      worked in a week (53
                                                                                      hours). The City should
                                                                                      bill us an additional 3
                                                                                      percent of the
                                                                                      firefighter's converted
                                                                                      compensation for the first
                                                                                      40 hours during worked per
                                                                                      week during Activation.
(2) Incurs a fringe benefit cost based on  Bill us for a pro-rata share of the       The City Fire Department
 the number of hours each System Member     premium based on the number of hours      pays a premium of 12
 actually worked (base hours and            each System Member worked during          percent for retirement
 overtime),                                 Activation                                based on the number of
                                                                                      hours worked by a
                                                                                      firefighter. The City
                                                                                      should bill us an
                                                                                      additional 12 percent of
                                                                                      the firefighter's total
                                                                                      compensation during
                                                                                      Activation.
(3) Incurs a fringe benefit cost on a      Bill us for a pro-rata share of those     The City Fire Department
 yearly basis based on the number of        fringe benefit costs based on the         pays workers compensation
 people employed full-time during the       number of non-overtime hours worked       premiums into the City
 year,                                      during Activation by System Members       risk fund for the
                                            employed full time                        following year, based on
                                                                                      the number of full-time
                                                                                      firefighters employed
                                                                                      during the current year.
                                                                                      The City should bill us
                                                                                      for workers compensation
                                                                                      premium costs by
                                                                                      multiplying the hourly
                                                                                      fringe benefit rate or
                                                                                      amount by the number of
                                                                                      non-overtime hours worked
                                                                                      during Activation by full
                                                                                      time firefighters who are
                                                                                      System Members.
----------------------------------------------------------------------------------------------------------------

    (b) Differential pay. We will reimburse the Sponsoring Organization 
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 Organization seeks reimbursement must accompany any 
request for reimbursement under this section together with 
identification of every fringe benefit sought under paragraph (a) of 
this section and the method used to calculate each such payment and the 
reimbursement sought from us.
    (c) We will not reimburse the Sponsoring Organization for fringe 
benefit costs for Affiliated Personnel.


Sec.  208.41  Administrative allowance.

    (a) The administrative allowance is intended to defray costs of the 
following activities, to the extent provided in paragraph (b) of this 
section:
    (1) Collecting expenditure information from Sponsoring 
Organizations and Participating Agencies;
    (2) Compiling and summarizing cost records and reimbursement 
claims;
    (3) Duplicating cost records and reimbursement claims; and
    (4) Submitting reimbursement claims, including mailing, 
transmittal, and related costs.
    (b) The administrative allowance will be equal to the following:
    (1) If total allowable costs are less than $100,000, 3 percent of 
total allowable costs included in the reimbursement claim;
    (2) If total allowable costs are $100,000 or more but less than 
$1,000,000, $3,000 plus 2 percent of costs included in the 
reimbursement claim greater than $100,000;
    (3) If total allowable costs are $1,000,000 or more, $21,000 plus 1 
percent of costs included in the reimbursement claim greater than 
$1,000,000.


Sec.  208.42  Reimbursement for other administrative costs.

    Costs incurred for conducting after-action meetings and preparing 
after-action reports must be billed as direct costs in accordance with 
our administrative policy.


Sec.  208.43  Rehabilitation.

    We will reimburse costs incurred to return System equipment and 
personnel to a state of readiness following Activation as provided in 
this section.
    (a) Costs for Equipment Cache List items. (1) Non-consumable items. 
We will reimburse costs incurred to repair or replace any non-
consumable item on the Equipment Cache List that was lost, damaged, 
destroyed, or donated at our direction to another entity, during 
Activation. For each such item, the Sponsoring Organization must 
document, in writing, the circumstances of the loss, damage, 
destruction, or donation.
    (2) Consumable items. We 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. 
We 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 Organization or 
Participating Agency and without regard to the provisions of Sec.  
208.39(e)(1) of this subpart, up to the number of hours specified in 
the Demobilization Order. Fringe benefits are reimbursed under the 
provisions of Sec.  208.40.
    (b) Costs for personnel rehabilitation. We will reimburse costs 
incurred for the compensation, including benefits and backfill, of each 
Activated System Member regularly scheduled to work during the 
rehabilitation period specified in the Demobilization Order, in 
accordance with the standard pay policy of the Sponsoring Organization 
or Participating Agency and without regard to the provisions of Sec.  
208.39(e)(1) of this subpart.
    (c) Other allowable costs. (1) Local transportation. We will 
reimburse costs

[[Page 77639]]

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. We 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 we have ordered a Sponsoring 
Organization to move its Task Force Members and equipment cache by 
ground transportation, we will reimburse costs incurred for such 
transportation, including but not limited to charges for contract 
carriers, rented vehicles, contract vehicle operators, fleet vehicles, 
fuel and associated transportation expenses. The Administrator shall 
have authority to issue schedules of maximum hourly or per mile 
reimbursement rates for fleet and contract vehicles.
    (3) Food and beverages. We will reimburse expenditures for food and 
beverages for Activated Task Force Members and Support Specialists when 
meals are not provided by the Federal government during Activation. 
Reimbursement of food and beverage costs for Activated Support 
Specialists will be limited to periods of time during which they were 
actively supporting the Activation or traveling to or from locations at 
which they were actively supporting the Activation. Food and beverage 
reimbursement will be limited to the amount of the then-current Federal 
meals and incidental expenses daily allowance published in the Federal 
Register for the locality where such food and beverages were provided, 
multiplied by the number of personnel who received the same.


Sec.  208.44  Reimbursement for other costs.

    (a) Except as allowed under paragraph (b) of this section, we will 
not reimburse other costs incurred preceding, during or upon the 
conclusion of an Activation unless, before making the expenditure, the 
Sponsoring Organization has requested, in writing, permission for a 
specific expenditure and has received written permission from the 
Program Manager to make such expenditure.
    (b) At the discretion of the Program Manager, a request for 
approval of costs presented after the costs were incurred must be in 
writing and establish that:
    (1) The expenditure was essential to the Activation and was 
reasonable;
    (2) Advance written approval by the Program Manager was not 
feasible; and
    (3) Advance verbal approval by the Program Manager had been 
requested and was given.


Sec.  208.45  Advance of funds.

    At the time of Activation of a Task Force, the Task Force will 
develop the documentation necessary to request an advance of funds be 
paid to such Task Force's Sponsoring Organization. Upon approval, we 
will submit the documentation to the Assistance Officer and will 
request an advance of funds equal to 75 percent of the estimated 
personnel costs for the Activation. The estimated personnel costs will 
include the salaries, benefits, and backfill costs for Task Force 
Members and an estimate of the salaries, benefits and backfill costs 
required for equipment cache rehabilitation. The advance of funds will 
not include any costs for equipment purchase.


Sec. Sec.  208.46-208.50  [Reserved]

Subpart D--Reimbursement Claims and Appeals


Sec.  208.51  General.

    (a) Purpose. This subpart identifies the procedures that Sponsoring 
Organizations must use to request reimbursement from us for costs 
incurred under Response Cooperative Agreements.
    (b) Policy. It is our policy to reimburse Sponsoring Organizations 
as expeditiously as possible consistent with Federal laws and 
regulations.


Sec.  208.52  Reimbursement procedures.

    (a) General. A Sponsoring Organization must present a claim for 
reimbursement to us in such manner as specified by the Administrator.
    (b) Time for submission. (1) Claims for reimbursement must be 
submitted within 90 days after the end of the Personnel Rehabilitation 
Period specified in the Demobilization Order.
    (2) The Administrator may extend and specify the time limitation in 
paragraph (b)(1) of this section when the Sponsoring Organization 
justifies and requests the extension in writing.


Sec.  208.53-208.59  [Reserved]


Sec.  208.60  Determination of claims.

    When we receive a reviewable claim for reimbursement, we will 
review the claim to determine whether and to what extent reimbursement 
is allowable. Except as provided in Sec.  208.63, we will complete our 
review and give written notice to the Sponsoring Organization of our 
determination within 90 days after the date we receive the claim. If we 
determine that any item of cost is not eligible for reimbursement, our 
notice of determination will specify the grounds on which we disallowed 
reimbursement.


Sec.  208.61  Payment of claims.

    We will reimburse all allowable costs for which a Sponsoring 
Organization requests reimbursement within 30 days after we determine 
that reimbursement is allowable, in whole or in part, at any stage of 
the reimbursement and appeal processes identified in this subpart.


Sec.  208.62  Appeals

    (a) Initial appeal. The Sponsoring Organization may appeal to the 
Program Manager any determination made under Sec.  208.60 to disallow 
reimbursement of an item of cost:
    (1) The appeal must be in writing and submitted within 60 days 
after receipt of our written notice of disallowance under Sec.  208.60 
of this part.
    (2) The appeal must contain legal and factual justification for the 
Sponsoring Organization's contention that the cost is allowable.
    (3) Within 90 days after we receive an appeal, the Program Manager 
will review the information submitted, make such additional 
investigations as necessary, make a determination on the appeal, and 
submit written notice of the determination of the appeal to the 
Sponsoring Organization.
    (b) Final appeal. (1) If the Program Manager denies the initial 
appeal, in whole or in part, the Sponsoring Organization may submit a 
final appeal to the Deputy Administrator. The appeal must be made in 
writing and must be submitted not later than 60 days after receipt of 
written notice of our determination of the initial appeal.
    (2) Within 90 days following the receipt of a final appeal, the 
Deputy Administrator will render a determination and notify the 
Sponsoring Organization, in writing, of the final disposition of the 
appeal.
    (c) Failure to file timely appeal. If the Sponsoring Organization 
does not file an appeal within the time periods specified in this 
section, we will deem that the Sponsoring Organization has waived its 
right to appeal any decision that could have been the subject of an 
appeal.


Sec.  208.63  Request by us for supplemental information

    (a) At any stage of the reimbursement and appeal processes 
identified in this subpart, we may request the Sponsoring Organization 
to provide supplemental information that we consider necessary to 
determine either a claim for reimbursement or an appeal. The

[[Page 77640]]

Sponsoring Organization must exercise its best efforts to provide the 
supplemental information and must submit to us a written response that 
includes such supplemental information as the Sponsoring Organization 
is able to provide within 30 days after receiving our request.
    (b) If we make a request for supplemental information at any stage 
of the reimbursement and appeal processes, the applicable time within 
which our determination of the claim or appeal is to be made will be 
extended by 30 days. However, without the consent of the Sponsoring 
Organization, no more than one such time extension will be allowed for 
any stage of the reimbursement and appeal processes.


Sec.  208.64  Administrative and audit requirements.

    (a) Nonfederal audit. For Sponsoring Organizations and states, 
requirements for nonfederal audit are contained in 44 CFR 13.26.
    (b) Federal audit. FEMA or the General Accounting Office may elect 
to conduct a Federal audit of any payment made to a Sponsoring 
Organization or State.


Sec.  208.65  Mode of transmission.

    When sending all submissions, determinations, and requests for 
supplemental information under this subpart, all parties must use a 
means of delivery that permits both the sender and addressee to verify 
the dates of delivery.


Sec.  208.66  Reopening of claims for retrospective or retroactive 
adjustment of costs.

    (a) Upon written request by the Sponsoring Organization we will 
reopen the time period for submission of a request for reimbursement 
after the Sponsoring Organization has submitted its request for 
reimbursement, if:
    (1) The salary or wage rate applicable to the period of an 
Activation is retroactively changed due to the execution of a 
collective bargaining agreement, or due to the adoption of a generally 
applicable State or local law, ordinance or wage order or a cost-of-
living adjustment;
    (2) The Sponsoring Organization or any Participating Agency incurs 
an additional cost because of a legally-binding determination; or
    (3) The Deputy Administrator determines that other extenuating 
circumstances existed that prevented the Sponsoring Organization from 
including the adjustment of costs in its original submission.
    (b) The Sponsoring Organization must notify us as early as 
practicable that it anticipates such a request.


Sec. Sec.  208.67-208.70  [Reserved]

    Dated: December 11, 2002.
Joe M. Allbaugh,
Director.
[FR Doc. 02-31658 Filed 12-17-02; 8:45 am]
BILLING CODE 6718-08-P