PART 208—NATIONAL URBAN SEARCH AND RESCUE RESPONSE SYSTEM Authority: Robert T. Stafford Disaster Relief and Emergency Assistance Act, 42 U.S.C. 5121 through 5206; Reorganization Plan No. 3 of 1978, 43 FR 41943, 3 CFR, 1978 Comp., p. 329; Homeland Security Act of 2002, 6 U.S.C. 101; E.O. 12127, 44 FR 19367, 3 CFR, 1979 Comp., p. 376; E.O. 12148, 44 FR 43239, 3 CFR, 1979 Comp., p. 412; E.O. 13286, 68 FR 10619, 3 CFR, 2003 Comp., p. 166. Source: 70 FR 9194, Feb. 24, 2005, unless otherwise noted. Subpart A—General § 208.1 Purpose and scope of this part. (a) Purpose. (b) Scope. § 208.2 Definitions of terms used in this part. (a) General. Activated Activation Activation Order Advisory Alert Alert Order Assistant Administrator Assistance Officer Backfill Cooperating Agency Cooperative Agreement Daily Cost Estimate Deputy Assistant Administrator DHS Disaster Search Canine Team Emergency Equipment Cache List (1) The equipment and supplies that US & R will furnish to Sponsoring Agencies; and (2) The maximum quantities and types of equipment and supplies that a Sponsoring Agency may purchase and maintain with DHS funds. Federal Excess Property Federal Response Plan Joint Management Team JMT Local Government Major Disaster Memorandum of Agreement (MOA) Participating Agency Personnel Rehabilitation Period Preparedness Cooperative Agreement Program Directive Program Manager Program Office Response Cooperative Agreement Sponsoring Agency Stafford Act State Support Specialist System National US&R Response System System Member Task Force Task Force Member Technical Specialist US&R (b) Additional definitions. [70 FR 9194, Feb. 24, 2005, as amended at 74 FR 15353, Apr. 3, 2009] § 208.3 Authority for the National US&R Response System. (a) Enabling legislation. (b) Implementing plan. § 208.4 Purpose for System. It is DHS policy to develop and provide a national system of standardized US&R resources to respond to Emergencies and Major Disasters that are beyond the capabilities of affected State and Local Governments. § 208.5 Authority of the Assistant Administrator for the Disaster Operations Directorate. (a) Participation in activities of the System. (b) Standards for and measurement of System efficiency and effectiveness. § 208.6 System resource reports. (a) Reports to Assistant Administrator. (b) Reports to FEMA Regional Administrators. (c) Audits, investigations, studies and evaluations. § 208.7 Enforcement. (a) Remedies for noncompliance. (b) The enforcement remedies identified in this section, including suspension and termination, do not preclude a Sponsoring Agency, Participating Agency, Affiliated Personnel or other System Member from being subject to “Debarment and Suspension” under E.O. 12549, as amended, in accordance with 2 CFR 200.338(d). (c) Other authority for sanctions. [70 FR 9194, Feb. 24, 2005, as amended at 79 FR 76087, Dec. 19, 2014] § 208.8 Code of conduct. The Assistant Administrator will develop and implement a code of conduct for System Members acting under DHS's direction and control. Nothing in this section or the DHS code of conduct will limit the authority of a Sponsoring Agency, Participating Agency or Cooperating Agency to apply its own code of conduct to its System Members or employees. If the DHS code is more restrictive, it controls. § 208.9 Agreements between Sponsoring Agencies and Participating Agencies. Every agreement between a Sponsoring Agency and a Participating Agency regarding the System must include a provision making this part applicable to the Participating Agency and its employees who engage in System activities. § 208.10 Other regulations. The following provisions of title 44 CFR, Chapter I also apply to the program in this part: (a) Section 206.9, which deals with the non-liability of DHS in certain circumstances. (b) Section 206.11, which prescribes nondiscrimination in the provision of disaster assistance. (c) Section 206.14, which deals with criminal and civil penalties. (d) Section 206.15, which permits recovery of assistance by DHS. § 208.11 Federal status of System Members. The Assistant Administrator will appoint all Activated System Members as temporary excepted Federal volunteers. The Assistant Administrator may appoint a System Member who participates in Alert activities as such a Federal volunteer. The Assistant Administrator may also appoint each System Member who participates in DHS-sanctioned preparedness activities as a temporary excepted Federal volunteer. DHS intends these appointments to secure protection for such volunteers under the Federal Employees Compensation Act and the Federal Tort Claims Act and do not intend to interfere with any preexisting employment relationship between a System Member and a Sponsoring Agency, Cooperating Agency or Participating Agency. System Members whom DHS appoints as temporary excepted Federal volunteers will not receive any compensation or employee benefit directly from the United States of America for their service, but will be compensated through their Sponsoring Agency. § 208.12 Maximum Pay Rate Table. (a) Purpose. (b) Scope of this section. (2) The Table also applies to Backfill for Activated System Members employed by or otherwise associated with a for-profit Participating Agency. (c) Method for determining maximum pay rates. (2) The Office of Personnel Management (OPM) publishes salary and locality pay schedules each calendar year. (i) Physicians. http://www.opm.gov/oca/03 tables/SSR/HTML/0290.asp. (ii) Engineers and Canine Handlers. http://www.opm.gov/oca/03tables/html/gs.asp. (iii) Locality Pay. http://www.opm.gov/oca/03tables/locdef.asp. (3) Review and update. (4) Initial rates and subsequent revisions. Federal Register Federal Register. 1 1 (d) Application of the maximum pay rate table Applicability. (2) Higher rates. (3) Compensation for Sponsoring Agency employees serving as Affiliated Personnel. e.g. (4) Backfill expenses for Affiliated Personnel under § 208.39(g). (ii) Private, for-profit organizations. e.g. Participating Agency. Maximum Pay Rate Tabl.e (iii) Compensation costs. §§ 208.13-208.20 [Reserved] Subpart B—Preparedness Cooperative Agreements § 208.21 Purpose. Subpart B of this part provides guidance on the administration of Preparedness Cooperative Agreements. § 208.22 Preparedness Cooperative Agreement process. (a) Application. (b) Award. (c) Amendment Procedure. (2) Period of performance. (3) Assistance Officer. (d) Award amounts. (e) DHS priorities. (f) Cost sharing. (g) Sponsoring Agency priorities. (h) Responsibility to maintain integrity of the equipment cache. § 208.23 Allowable costs under Preparedness Cooperative Agreements. System Members may spend Federal funds that DHS provides under any Preparedness Cooperative Agreement and any required matching funds under 2 CFR part 200, subpart E—Cost Principles, and this section to pay reasonable, allowable, necessary and allocable costs that directly support System activities, including the following: (a) Administration, including: (1) Management and administration of day-to-day System activities such as personnel compensation and benefits relating to System maintenance and development, record keeping, inventory of equipment, and correspondence; (2) Travel to and from System activities, meetings, conferences, training, drills and exercises; (3) Tests and examinations, including vaccinations, immunizations and other tests that are not normally required or provided in the course of a System Member's employment, and that DHS requires to meet its standards. (b) Training: (1) Development and delivery of, and participation in, System-related training courses, exercises, and drills; (2) Construction, maintenance, lease or purchase of System-related training facilities or materials; (3) Personnel compensation expenses, including overtime and other related expenses associated with System-related training, exercises, or drills; (4) System-required evaluations and certifications other than the certifications that DHS requires System Members to possess at the time of entry into the System. For instance, DHS will not pay for a medical school degree, paramedic certification or recertification, civil engineering license, etc. (c) Equipment: (1) Procurement of equipment and supplies specifically identified on the then-current DHS-approved Equipment Cache List; (2) Maintenance and repair of equipment included on the current Equipment Cache List; (3) Maintenance and repair of equipment acquired with DHS approval through the Federal Excess Property program, except as provided in § 208.25 of this part; (4) Purchase, construction, maintenance or lease of storage facilities and associated equipment for System equipment and supplies. (d) Disaster search canine expenses limited to: (1) Procurement for use as a System resource; (2) Training and certification expenses; (3) Veterinary care. (e) Management and administrative costs, actually incurred but not otherwise specified in this section that directly support the Sponsoring Agency's US&R capability, provided that such costs do not exceed 7.5 percent of the award/amendment amount. [70 FR 9194, Feb. 24, 2005, as amended at 79 FR 76087, Dec. 19, 2014] § 208.24 Purchase and maintenance of items not listed on Equipment Cache List. (a) Requests for purchase or maintenance of equipment and supplies not appearing on the Equipment Cache List, or that exceed the number specified in the Equipment Cache List, must be made in writing to the Program Manager. No Federal funds provided under any Preparedness Cooperative Agreement may be expended to purchase or maintain any equipment or supply item unless: (1) The equipment and supplies directly support the Sponsoring Agency's US&R capability; (2) The Program Manager approves the expenditure and gives written notice of his or her approval to the Sponsoring Agency before the Sponsoring Agency purchases the equipment or supply item. (b) Maintenance of items approved for purchase under this section is eligible for reimbursement, except as provided in § 208.26 of this subpart. § 208.25 Obsolete equipment. (a) The Assistant Administrator will periodically identify obsolete items on the Equipment Cache List and provide such information to Sponsoring Agencies. (b) Neither funds that DHS provides nor matching funds required under a Preparedness Cooperative Agreement may be used to maintain or repair items that DHS has identified as obsolete. § 208.26 Accountability for use of funds. The Sponsoring Agency is accountable for the use of funds as provided under the Preparedness Cooperative Agreement, including financial reporting and retention and access requirements according to 2 CFR 200.327 and 200.333-200.337. [79 FR 76087, Dec. 19, 2014] § 208.27 Title to equipment. Title to equipment purchased by a Sponsoring Agency with funds provided under a DHS Preparedness Cooperative Agreement vests in the Sponsoring Agency, provided that DHS reserves the right to transfer title to the Federal Government or a third party that DHS may name, under 2 CFR 200.313(e)(3), for example, when a Sponsoring Agency indicates or demonstrates that it cannot fulfill its obligations under the Memorandum of Agreement. [79 FR 76087, Dec. 19, 2014] §§ 208.28-208.30 [Reserved] Subpart C—Response Cooperative Agreements § 208.31 Purpose. Subpart C of this part provides guidance on the administration of Response Cooperative Agreements. § 208.32 Definitions of terms used in this subpart. Affiliated Personnel Demobilization Order Exempt et seq., Maximum Pay Rate Table Mobilization Non-Exempt et seq. Rehabilitation § 208.33 Allowable costs. (a) Cost neutrality. (b) Actual costs. (c) Normal or predetermined practices. (d) Indirect costs. [70 FR 9194, Feb. 24, 2005, as amended at 79 FR 76087, Dec. 19, 2014] § 208.34 Agreements between Sponsoring Agencies and others. Sponsoring Agencies are responsible for executing such agreements with Participating Agencies and Affiliated Personnel as may be necessary to implement the Sponsoring Agency's Response Cooperative Agreement with DHS. Those agreements must identify established hourly or daily rates of pay for System Members. The hourly or daily rates of pay for Affiliated Personnel must be in accordance with, and must not exceed, the maximum pay rates contained in the then-current Maximum Pay Rate Table. § 208.35 Reimbursement for Advisory. DHS will not reimburse costs incurred during an Advisory. § 208.36 Reimbursement for Alert. (a) Allowable costs. (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 § 208.41 of this part. (4) Food and beverages for Task Force Members and Support Specialists when DHS does not provide meals during the Alert. DHS will limit food and beverage reimbursement to the amount of the then-current Federal meals daily allowance published in the Federal Register (b) Calculation of Alert Order dollar limit. (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. § 208.37 Reimbursement for equipment and supply costs incurred during Activation. (a) Allowable costs. (b) Non-Allowable costs. § 208.38 Reimbursement for re-supply and logistics costs incurred during Activation. With the exception of emergency procurement authorized in the Activation Order, and replacement of consumable items provided for in § 208.43(a)(2) of this subpart, DHS will not reimburse costs incurred for re-supply and logistical support during Activation. Re-supply and logistical support of Task Forces needed during Activation are the responsibility of the Joint Management Team. § 208.39 Reimbursement for personnel costs incurred during Activation. (a) Compensation. (b) Public Safety Exemption not applicable. (c) Tour of duty. (d) Regular rate. (e) Procedures for calculating compensation during Activation. (1) Convert the base hourly wage of any Non-Exempt System Member regularly paid under 29 U.S.C. 207(k) to its equivalent for a 40-hour work week; (2) Convert the annual salary of any salaried Non-Exempt System Member to its hourly equivalent for a 40-hour workweek; (3) Calculate the daily compensation of Exempt System Members based on their current annual salary, exclusive of fringe benefits; (4) Calculate the total number of hours worked by each System Member to be included in the Sponsoring Agency's request for reimbursement; and (5) Submit a request for reimbursement under § 208.52 of this part according to the following table: If the Sponsoring Agency or And the Sponsoring Agency or Then the following compensation (i) Customarily and usually compensates Exempt System Members by paying a salary, but not overtime, Does not customarily and usually grant compensatory time or other form of overtime substitute to Exempt System members The daily compensation equivalent calculated under § 208.39(e)(3) of this part for each Activated Exempt System Member for each full or partial day during Activation. (ii) Customarily and usually compensates Exempt System Members by paying a salary but not overtime Customarily and usually awards compensatory time or other overtime substitute for Exempt System Members for hours worked above a predetermined hours threshold (for example, the Sponsoring Agency customarily and usually grants compensatory time for all hours worked above 60 in a given week) The daily compensation equivalent calculated under § 208.39(e)(3) of this part for each Activated Exempt System Member for each full or partial day during Activation AND the dollar value at the time of accrual of the compensatory time or other overtime substitute for each Activated Exempt System Member based on the duration of the Activation. (iii) Customarily and usually compensates Exempt System Members by paying a salary and overtime, Customarily and usually calculates overtime for Exempt System Members by paying a predetermined overtime payment for each hour worked above a predetermined hours threshold, The daily compensation equivalent calculated under § 208.39(e)(3) of this part for each Activated Exempt System Member for each full or partial day during Activation AND the 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 compensates Non-Exempt System Members by paying overtime after 40 hours per week, Does not customarily and usually grant compensatory time or other form of overtime substitute to Non-Exempt System members, For each seven-day period during the Activation, the hourly wage of each Activated Non-Exempt System Member for the first 40 hours AND the overtime payment for each Activated Non-Exempt System Member for every hour over 40. (v) Customarily and usually compensates Non-Exempt System Members according to a compensation plan established under 29 U.S.C. 207(k), Does not customarily and usually grant compensatory time or other form of overtime substitute to Non-Exempt System Members, For each seven-day period during the Activation, the hourly wage equivalent of each Activated Non-Exempt System Member calculated under § 208.39(e)(1) of this part for the first 40 hours AND the overtime payment equivalent for each Activated Non-Exempt System Member calculated under § 208.39(e)(1) of this part for every hour over 40. (vi) Activates Personnel, who are customarily and usually paid an hourly wage according to the Maximum Pay Rate Table, For each seven-day period during the Affiliated Activation, the hourly wage for each Activated Affiliated Personnel for the first 40 hours and one and one-half times the hourly wage for each Activated Affiliated Personnel for every hour over 40. (vii) Activates Affiliated Personnel who are customarily and usually paid a daily compensation rate according to the Maximum Pay Rate Table, The daily compensation rate for each Activated Affiliated Personnel for each full or partial day during the Activation. (f) Reimbursement of additional salary and overtime costs. (g) Reimbursement for Backfill costs upon Activation. § 208.40 Reimbursement of fringe benefit costs during Activation. (a) Except as specified in § 208.40 (c) of this subpart, DHS will reimburse the Sponsoring Agency for fringe benefit costs incurred during Activation according to the following table: If the Sponsoring Agency or Then the Sponsoring Agency or Example (1) Incurs a fringe benefit cost based on the number of base hours worked by a System Member, Bill DHS for a pro-rata share of the premium based on the number of base hours worked during Activation The City Fire Department incurs a premium of 3 percent for dental coverage based on the number of base hours worked in a week (53 hours). The City should bill DHS an additional 3 percent of the firefighter's converted compensation for the first 40 hours Activation. (2) Incurs a fringe benefit cost based on the number of hours a System Member actually worked (base hours and overtime), Bill DHS for a pro-rata share of the premium based on the number of hours each System Member worked during Activation The City Fire Department pays a premium of 12 percent for retirement based on the number of hours worked by a firefighter. The City should bill DHS an additional 12 percent of the firefighter's total compensation during Activation. (3) Incurs a fringe benefit cost on a yearly basis based on the number of people employed full-time during the year, Bill DHS for a pro-rata share of those fringe benefit costs based on the number of non-overtime hours worked during Activation by System Members employed full time The City Fire Department pays workers compensation premiums into the City risk fund for the following year, based on the number of full-time firefighters employed during the current year. The City should bill DHS for workers compensation premium costs by multiplying the hourly fringe benefit rate or amount by the number of non-overtime hours worked during Activation by full time firefighters who are System Members. (b) Differential pay. (c) DHS will not reimburse the Sponsoring Agency for fringe benefit costs for Affiliated Personnel. § 208.41 Administrative allowance. (a) The administrative allowance is intended to defray costs of the following activities, to the extent provided in paragraph (b) of this section: (1) Collecting expenditure information from Sponsoring Agencies and Participating Agencies; (2) Compiling and summarizing cost records and reimbursement claims; (3) Duplicating cost records and reimbursement claims; and (4) Submitting reimbursement claims, including mailing, transmittal, and related costs. (b) The administrative allowance will be equal to the following: (1) If total allowable costs are less than $100,000, 3 percent of total allowable costs included in the reimbursement claim; (2) If total allowable costs are $100,000 or more but less than $1,000,000, $3,000 plus 2 percent of costs included in the reimbursement claim greater than $100,000; (3) If total allowable costs are $1,000,000 or more, $21,000 plus 1 percent of costs included in the reimbursement claim greater than $1,000,000. § 208.42 Reimbursement for other administrative costs. Costs incurred for conducting after-action meetings and preparing after-action reports must be billed as direct costs in accordance with DHS administrative policy. § 208.43 Rehabilitation. DHS will reimburse costs incurred to return System equipment and personnel to a state of readiness following Activation as provided in this section. (a) Costs for Equipment Cache List items Non-consumable items. (2) Consumable items. (3) Personnel costs associated with equipment cache rehabilitation. (b) Costs for personnel rehabilitation. (c) Other allowable costs Local transportation. (2) Ground transportation. (3) Food and beverages. Federal Register § 208.44 Reimbursement for other costs. (a) Except as allowed under paragraph (b) of this section, DHS will not reimburse other costs incurred preceding, during or upon the conclusion of an Activation unless, before making the expenditure, the Sponsoring Agency has requested, in writing, permission for a specific expenditure and has received written permission from the Program Manager or his or her designee to make such expenditure. (b) At the discretion of the Program Manager or his or her designee, a request for approval of costs presented after the costs were incurred must be in writing and establish that: (1) The expenditure was essential to the Activation and was reasonable; (2) Advance written approval by the Program Manager was not feasible; and (3) Advance verbal approval by the Program Manager had been requested and was given. § 208.45 Advance of funds. At the time of Activation of a Task Force, the Task Force will develop the documentation necessary to request an advance of funds be paid to such Task Force's Sponsoring Agency. Upon approval, DHS will submit the documentation to the Assistance Officer and will request an advance of funds up to 75 percent of the estimated personnel costs for the Activation. The estimated personnel costs will include the salaries, benefits, and Backfill costs for Task Force Members and an estimate of the salaries, benefits and Backfill costs required for equipment cache rehabilitation. The advance of funds will not include any costs for equipment purchase. § 208.46 Title to equipment. Title to equipment purchased by a Sponsoring Agency with funds provided under a DHS Response Cooperative Agreement vests in the Sponsoring Agency, provided that DHS reserves the right to transfer title to the Federal Government or a third party that DHS may name, under 2 CFR 200.313(e)(3), when a Sponsoring Agency indicates or demonstrates that it cannot fulfill its obligations under the Memorandum of Agreement. [79 FR 76087, Dec. 19, 2014] §§ 208.47-208.50 [Reserved] Subpart D—Reimbursement Claims and Appeals § 208.51 General. (a) Purpose. (b) Policy. § 208.52 Reimbursement procedures. (a) General. (b) Time for submission. (2) The Assistant Administrator may extend and specify the time limitation in paragraph (b)(1) of this section when the Sponsoring Agency justifies and requests the extension in writing. §§ 208.53-208.59 [Reserved] § 208.60 Determination of claims. When DHS receives a reviewable claim for reimbursement, DHS will review the claim to determine whether and to what extent reimbursement is allowable. Except as provided in § 208.63 of this part, DHS will complete its review and give written notice to the Sponsoring Agency of its determination within 90 days after the date DHS receives the claim. If DHS determines that any item of cost is not eligible for reimbursement, its notice of determination will specify the grounds on which DHS disallowed reimbursement. § 208.61 Payment of claims. DHS will reimburse all allowable costs for which a Sponsoring Agency requests reimbursement within 30 days after DHS determines that reimbursement is allowable, in whole or in part, at any stage of the reimbursement and appeal processes identified in this subpart. § 208.62 Appeals. (a) Initial appeal. (1) The appeal must be in writing and submitted within 60 days after receipt of DHS's written notice of disallowance under § 208.60 of this part. (2) The appeal must contain legal and factual justification for the Sponsoring Agency's contention that the cost is allowable. (3) Within 90 days after DHS receives an appeal, the Program Manager will review the information submitted, make such additional investigations as necessary, make a determination on the appeal, and submit written notice of the determination of the appeal to the Sponsoring Agency. (b) Final appeal. (2) Within 90 days following the receipt of a final appeal, the Deputy Assistant Administrator will render a determination and notify the Sponsoring Agency, in writing, of the final disposition of the appeal. (c) Failure to file timely appeal. § 208.63 Request by DHS for supplemental information. (a) At any stage of the reimbursement and appeal processes identified in this subpart, DHS may request the Sponsoring Agency to provide supplemental information that DHS considers necessary to determine either a claim for reimbursement or an appeal. The Sponsoring Agency must exercise its best efforts to provide the supplemental information and must submit to DHS a written response that includes such supplemental information as the Sponsoring Agency is able to provide within 30 days after receiving DHS's request. (b) If DHS makes a request for supplemental information at any stage of the reimbursement and appeal processes, the applicable time within which its determination of the claim or appeal is to be made will be extended by 30 days. However, without the consent of the Sponsoring Agency, no more than one such time extension will be allowed for any stage of the reimbursement and appeal processes. § 208.64 Administrative and audit requirements. (a) Non-Federal audit. (b) Federal audit. § 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. § 208.66 Reopening of claims for retrospective or retroactive adjustment of costs. (a) Upon written request by the Sponsoring Agency DHS will reopen the time period for submission of a request for reimbursement after the Sponsoring Agency has submitted its request for reimbursement, if: (1) The salary or wage rate applicable to the period of an Activation is retroactively changed due to the execution of a collective bargaining agreement, or due to the adoption of a generally applicable State or local law, ordinance or wage order or a cost-of-living adjustment; (2) The Sponsoring Agency or any Participating Agency incurs an additional cost because of a legally-binding determination; or (3) The Deputy Director determines that other extenuating circumstances existed that prevented the Sponsoring Agency from including the adjustment of costs in its original submission. (c) The Sponsoring Agency must notify DHS as early as practicable that it anticipates such a request. §§ 208.67-208.70 [Reserved]