Federal Register / Vol. 73, No. 169 / Friday, August 29, 2008 / Rules and Regulations 50881 

acquired under the services contract is 

similar to the property exchanged or 

sold (e.g., for a SLEP, exchange 

allowances or sales proceeds would be 

available for replacement of similar 

items, but not for services). 

■ 11. Amend newly redesignated § 102–

39.55 by revising the section heading to 

read as follows: 

§ 102–39.55 When should I offer property I 

am exchanging or selling under the 

exchange/sale authority to other Federal 

agencies or State Agencies for Surplus 

Property (SASP)? 

* * * * * 

■ 12. Amend newly redesignated § 102–

39.60 by revising the section heading, 

the introductory text, paragraph (a), the 

note to paragraph (a), and paragraph (i) 

to read as follows: 

§ 102–39.60 What restrictions and 

prohibitions apply to the exchange/sale of 

personal property? 

Unless a deviation is requested of and 

approved by GSA as addressed in part 

102–2 of this chapter and the provisions 

of §§ 102–39.25 and 102–39.30, you 

must not use the exchange/sale 

authority for: 

(a) The following FSC groups of 

personal property: 

10 Weapons. 

11 Nuclear ordnance. 

12 Fire control equipment. 

14 Guided missiles. 

15 Aircraft and airframe structural 

components (except FSC Class 1560 

Airframe Structural Components). 

42 Firefighting, rescue, and safety 

equipment. 

44 Nuclear reactors (FSC Class 4470 

only). 

51 Hand tools. 

54 Prefabricated structure and 

scaffolding (FSC Class 5410 

Prefabricated and Portable Buildings, 

FSC Class 5411 Rigid Wall Shelters, and 

FSC Class 5419 Collective Modular 

Support System only). 

68 Chemicals and chemical products, 

except medicinal chemicals. 

84 Clothing, individual equipment, 

and insignia. 

Note to § 102–39.60(a): Under no 

circumstances will deviations be 

granted for FSC Class 1005, Guns 

through 30mm. Deviations are not 

required for Department of Defense 

(DoD) property in FSC Groups 10 (for 

classes other than FSC Class 1005), 12 

and 14 for which the applicable DoD 

demilitarization requirements, and any 

other applicable regulations and statutes 

are met. 

* * * * * 

(i) Flight Safety Critical Aircraft Parts 

(FSCAP) and Critical Safety Items (CSI) 

unless you meet the provisions of § 102–

33.370 of this title. 

* * * * * 

■ 13. New § 102–39.65 is added to 

Subpart B to read as follows: 

§ 102–39.65 What conditions apply to the 

exchange/sale of personal property? 

You may use the exchange/sale 

authority only if you meet all of the 

following conditions: 

(a) The property exchanged or sold is 

similar to the property acquired; 

(b) The property exchanged or sold is 

not excess or surplus and you have a 

continuing need for similar property; 

(c) The property exchanged or sold 

was not acquired for the principal 

purpose of exchange or sale; 

(d) When replacing personal property, 

the exchange allowance or sales 

proceeds from the disposition of that 

property may only be used to offset the 

cost of the replacement property, not 

services; and 

(e) Except for transactions involving 

books and periodicals in your libraries, 

you document the basic facts associated 

with each exchange/sale transaction. At 

a minimum, the documentation must 

include: 

(1) The FSC Group of the items 

exchanged or sold, and the items 

acquired; 

(2) The number of items exchanged or 

sold, and the number of items acquired; 

(3) The acquisition cost and exchange 

allowance or net sales proceeds of the 

items exchanged or sold, and the 

acquisition cost of the items acquired; 

(4) The date of the transaction(s); 

(5) The parties involved; and 

(6) A statement that the transactions 

comply with the requirements of this 

part 102–39. 

Note to § 102–39.65: In acquiring 

items for historical preservation or 

display at Federal museums, you may 

exchange historic items in the museum 

property account without regard to the 

FSC group, provided the exchange 

transaction is documented and certified 

by the head of your agency to be in the 

best interests of the Government and all 

other provisions of this part are met. 

The documentation must contain a 

determination that the item exchanged 

and the item acquired are historic items. 

■ 14. Revise newly redesignated § 102–

39.80 to read asfollows: 

§ 102–39.80 What are the accounting 

requirements for exchange allowances or 

proceeds of sale? 

You must account for exchange 

allowances or proceeds of sale in 

accordance with the general finance and 

accounting rules applicable to you. 

Except as otherwise authorized by law, 

all exchange allowances or proceeds of 

sale under this part will be available 

during the fiscal year in which the 

property was sold and for one fiscal year 

thereafter for the purchase of 

replacement property. Any proceeds of 

sale not applied to replacement 

purchases during this time must be 

deposited in the United States Treasury 

as miscellaneous receipts. 

[FR Doc. E8–19892 Filed 8–28–08; 8:45 am] 

BILLING CODE 6820–14–S 

DEPARTMENT OF HOMELAND 

SECURITY 

Federal Emergency Management 

Agency 

44 CFR Parts 206 and 207 

[Docket ID FEMA–2006–0035] 

RIN 1660–AA21 

Management Costs 

AGENCY: Federal Emergency 

Management Agency, DHS. 

ACTION: Reopening of comment period. 

SUMMARY: The Management Cost Interim 

Rule implemented the management cost 

provisions in section 324 of the Robert 

T. Stafford Disaster Relief and 

Emergency Assistance Act, as amended. 

The Federal Emergency Management 

Agency (FEMA) is reopening the public 

comment period on its Management 

Cost Interim Rule. FEMA is taking this 

action to solicit data from grantees and 

subgrantees to use in reevaluating the 

fixed management cost rates established 

in the rule. 

DATES: Comments are due on or before 

September 29, 2008. 

ADDRESSES: You may submit comments, 

identified by Docket ID FEMA–2006–

0035, by one of the following methods: 

Federal eRulemaking Portal: http:// 

www.regulations.gov. Follow the 

instructions for submitting comments. 

E-mail: FEMA–RULES@dhs.gov. 

Include Docket ID FEMA–2006–0035 in 

the subject line of the message. 

Fax: 866–466–5370. 

Mail/Hand Delivery/Courier: Rules 

Docket Clerk, Office of Chief Counsel, 

Federal Emergency Management 

Agency, Room 835, 500 C Street, SW., 

Washington, DC 20472. 

FOR FURTHER INFORMATION CONTACT: 

Jonna M. Long, Office of the Chief 

Financial Officer, Federal Emergency 

Management Agency, 500 C Street, SW., 

Washington, DC 20472, 202–646–7057, 

(facsimile) (202) 646–4268 (phone), or 

(e-mail) jonna.long@dhs.gov. 


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50882 Federal Register / Vol. 73, No. 169 / Friday, August 29, 2008 / Rules and Regulations 

SUPPLEMENTARY INFORMATION: 

Background 

Under the provisions of the Robert T. 

Stafford Disaster Relief and Emergency 

Assistance Act (Stafford Act), 42 U.S.C. 

5121–5207, and its implementing 

regulations, the Federal Emergency 

Management Agency (FEMA) has the 

authority to assist State and local 

governments in carrying out their 

responsibilities pursuant to a 

Presidentially-declared major disaster or 

emergency. Two of the major programs 

authorized by the Stafford Act that 

provide assistance to State and local 

governments are the Public Assistance 

(PA) program (grants for emergency 

protective measures, debris removal, 

and repair, replacement, or restoration 

of facilities not met by insurance) and 

the Hazard Mitigation Grant Program 

(HMGP) (grants for sustained mitigation 

measures such as acquisition for open 

space, elevations of flood prone 

properties, and wind or seismic 

retrofitting of structures that will reduce 

or permanently eliminate the long-term 

risk to people and property from natural 

hazards and their effects). 

Section 324 of the Stafford Act, 42 

U.S.C. 5165b, required FEMA to 

establish management cost rates for PA 

and HMGP grantees and subgrantees to 

be used in determining contributions for 

management costs. On August 30, 2002, 

FEMA published a Notice of Proposed 

Rulemaking that proposed a 

methodology for calculating the 

management cost rates, as well as 

guidance for the implementation of 

section 324 of the Stafford Act (67 FR 

56130). FEMA provided a 30 day 

comment period for the Notice of 

Proposed Rulemaking and considered 

the comments received in drafting the 

Interim Rule that was published on 

October 11, 2007 (72 FR 57869). For the 

Interim Rule, FEMA again provided a 30 

day comment period. FEMA received 34 

public comments on the Interim Rule 

(all of which are available in the docket 

for public inspection). Although FEMA 

continues to review those comments 

and will address them in the final rule, 

FEMA realized that it would be useful 

to solicit more specific information to 

properly address issues that were raised 

in those comments. 

‘‘Management costs,’’ for purposes of 

the implementing regulation, include 

any indirect costs, any administrative 

expenses and any other expenses not 

directly chargeable to a specific project 

that are reasonably incurred by a grantee 

or subgrantee in administering and 

managing a PA program or HMGP grant 

award. As established by the Interim 

Rule, FEMA determines the amount of 

management costs based on a flat 

percentage rate of the Federal share of 

projected eligible program costs for 

financial assistance. The flat percentage 

rate for PA is 3.34 percent for major 

disaster declarations, and 3.90 percent 

for emergencies. The HMGP rate is 4.89 

percent for major disaster declarations. 

The management cost funds provided 

are in addition to the grantee’s PA and 

HMGP funds and do not require a nonFederal cost share. 

The management cost rates set forth 

in the Interim Rule replaced what 

FEMA previously paid State and local 

governments for associated costs 

through the ‘‘sliding scale,’’ State 

management costs, and grantee indirect 

costs. The percentages for 

reimbursement are based on historical 

average obligations. To create the figures 

in the Interim Rule, FEMA used data 

collected in the National Emergency 

Management Information System 

(NEMIS) for declarations from August 

1998 to July 2004. FEMA added together 

actual obligations representing the 

Federal share of all PA projects for 

major disasters declared during that 

period. Obligations for sliding scale, 

State management costs, and grantee 

indirect costs were excluded from 

project obligations and were added 

together separately. Those totals were 

used to calculate the percentage of 

‘‘pure’’ project dollars that historically 

has been required for administration 

and management. 

The same calculations were 

performed for HMGP projects under 

major disaster declarations and PA 

projects under emergency declarations. 

Request for Comments 

Instructions: All Submissions 

received must include the agency name 

and Docket ID. Regardless of the method 

used for submitting comments or 

supporting material, all submissions 

will be posted, without change, to the 

Federal eRulemaking Portal at http:// 

www.regulations.gov, and will include 

any personal information you provide. 

Therefore, submitting this information 

makes it public. You may wish to read 

the Privacy Act notice that is available 

on the Privacy and Use Notice link on 

the Administration Navigation Bar of 

http://www.regulations.gov. 

Although comments on other aspects 

of the interim rule will not be rejected, 

FEMA solicits data in response to the 

specific requests set out below: 

Request 1 

Prior to November 13, 2007, FEMA 

used three mechanisms to reimburse 

grantees and subgrantees for 

management and administration costs: 

a. ‘‘Sliding Scale’’—per section 406(f) 

of the Stafford Act, FEMA reimbursed 

States for extraordinary costs incurred 

for preparation of damage survey 

reports, final inspection reports, project 

applications, final audits, and related 

field inspections by State employees, 

including overtime pay and per diem 

and travel expense of such employees 

but not including pay for regular time of 

such employees, based on the total 

amount of assistance provided under 

section 403, 404, 406, 407, 502, and 503. 

Such funds were cost shared at the 

prevailing cost share rate for the 

declaration. 

FEMA reimbursed subgrantees for 

associated expenses including necessary 

costs of requesting, obtaining, and 

administering Federal assistance. Such 

funds were 100 percent federallyfunded. 

b. Category Z State Management 

Administrative Costs—FEMA 

reimbursed State costs consistent with 

OMB Circular No. A–87 guidance, 

including such items as straight time 

salaries of State employees; straight time 

and overtime salaries, per diem and 

travel of contractors administering PA 

or HMGP grants; Emergency 

Management Assistance Compact 

(EMAC) costs for PA grants 

management; materials; equipment; etc. 

Such funds were cost shared at the 

prevailing cost share rate for the 

declaration. 

c. Indirect Costs—FEMA reimbursed 

States for costs incurred for a common 

or joint purpose benefiting more than 

one cost objective that were not readily 

assignable to projects, if such costs were 

part of an approved Indirect Cost Rate 

Plan. Such funds were cost shared at the 

prevailing cost share rate for the 

declaration. 

FEMA requests that grantees and 

subgrantees submit data on 

unreimbursed management costs 

incurred in the management and 

administration of Public Assistance (PA) 

and/or the Hazard Mitigation Grant 

Program (HMGP) prior to 

implementation of the Interim Rule on 

November 13, 2007. Specific costs and 

descriptions are needed and all costs 

must be attributable to and identified by 

a specific FEMA declaration number 

(DR–XXXX–ST or EM–XXXX–ST). 

To assist grantees and subgrantees in 

answering this request, unreimbursed 

costs might include items eligible for 

sliding scale funds when such funds 

were insufficient, or subgrantee costs 

not eligible for sliding scale funds and 

therefore not eligible for FEMA 

reimbursement. Unreimbursed costs 

must have been incurred in support of 

the management and administration of 


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Federal Register / Vol. 73, No. 169 / Friday, August 29, 2008 / Rules and Regulations 50883 

PA or HMGP under a specific 

Presidential declaration (major disaster 

or emergency for PA or major disaster 

for HMGP), and not in support of other 

programs such as community relations 

or Disaster Recovery Center staff, or staff 

supporting Individual Assistance 

programs. Unreimbursed costs do not 

include State cost shares required for 

sliding scale, Category Z, or indirect 

cost funding, nor do they include costs 

that were not reimbursed because they 

were inconsistent with applicable 

Federal rules and cost principles, such 

as OMB Circular No. A–87. 

Request 2 

FEMA requests that grantees and 

subgrantees submit available data on 

unreimbursed management costs 

incurred in the management and 

administration of Public Assistance (PA) 

and/or the Hazard Mitigation Grant 

Program (HMGP) under a specific 

Presidential declaration (major disaster 

or emergency for PA or major disaster 

for HMGP) since November 13, 2007. 

Specific costs and descriptions are 

needed and must be identified by FEMA 

declaration number. 

Viewing the Docket 

For access to the docket to submit 

comments, read the Notice of Proposed 

Rulemaking, Interim Rule, background 

documents and all comments received, 

go to the Federal eRulemaking Portal at 

http://www.regulations.gov. To the far 

right is a section titled ‘‘More Search 

Options.’’ Below that title, click on 

‘‘Advanced Docket Search.’’ On the next 

screen, in the box provided for Docket 

ID, type ‘‘FEMA–2006–0035’’. The next 

screen will provide a link to the docket. 

Once viewing the docket, all documents 

are provided in chronological order, 

beginning with the 2002 Notice of 

Proposed Rulemaking. Submitted 

comments may also be inspected at 

Office of Chief Counsel, Federal 

Emergency Management Agency, Room 

835, 500 C Street, SW., Washington, DC 

20472. 

Dated: August 22, 2008. 

R. David Paulison 

Administrator, Federal Emergency 

Management Agency. 

[FR Doc. E8–19983 Filed 8–28–08; 8:45 am] 

BILLING CODE 9110–49–P 

DEPARTMENT OF TRANSPORTATION 

Federal Railroad Administration 

49 CFR Part 240 

Qualification and Certification of 

Locomotive Engineers 

AGENCY: Federal Railroad 

Administration (FRA), DOT. 

ACTION: Interpretation. 

SUMMARY: FRA is issuing this notice of 

interpretation to inform interested 

parties of its application and 

enforcement of the requirements for 

each railroad responsible for controlling 

joint operations territory to maintain a 

list of person(s) certified as a qualified 

locomotive engineer for the purposes of 

the joint operations. FRA has discovered 

that a number of controlling railroads 

are not maintaining accurate lists 

primarily because foreign railroads are 

not providing the controlling railroads 

with accurate information and the 

controlling railroads are not demanding 

it. If an accurate list is not maintained, 

a controlling railroad has little chance of 

preventing an uncertified or unqualified 

person from operating a locomotive or 

train in the joint operations territory. 

This document is intended to inform 

interested parties of what information is 

required to be maintained on the 

required list and provides information 

as to how often the listings should be 

updated. 

ADDRESSES: You may submit comments 

to Douglas Taylor, Staff Director, 

Operating Practices Division, or John 

Conklin, Program Manager Locomotive 

Engineer Certification, FRA Office of 

Safety Assurance and Compliance, by 

facsimile (202–493–6216) or e-mail 

(douglas.taylor@dot.gov) or 

(john.conklin@dot.gov). Comments may 

also be submitted to Alan Nagler, FRA 

Office of Chief Counsel, by facsimile 

(202–493–6068) or e-mail 

(alan.nagler@dot.gov). 

FOR FURTHER INFORMATION CONTACT: 

Douglas H. Taylor, Staff Director, 

Operating Practices Division, Office of 

Safety Assurance and Compliance, FRA, 

1200 New Jersey Avenue, SE., RRS–11, 

Mail Stop 25, Washington, DC 20590 

(telephone 202–493–6255); John 

Conklin, Program Manager Locomotive 

Engineer Certification, Office of Safety 

Assurance and Compliance, FRA, 1200 

New Jersey Avenue, SE., RRS–11, Mail 

Stop 25, Washington, DC 20590 

(telephone 202 493–6318); or Alan H. 

Nagler, Senior Trial Attorney, Office of 

Chief Counsel, FRA, 1200 New Jersey 

Avenue, SE., RCC–11, Mail Stop 10, 

Washington, DC 20590 (telephone 202–

493–6038). 

SUPPLEMENTARY INFORMATION: 

I. General Background 

In 1991, FRA published a final rule 

requiring each railroad to qualify and 

certify each person the railroad would 

allow to operate a locomotive or train 

over its system. See 56 FR 28228. The 

final rule also required a railroad to 

maintain written listings identifying 

each person designated by it as: (i) A 

supervisor of locomotive engineers, (ii) 

a certified locomotive engineer, and (iii) 

a certified and qualified locomotive 

engineer for the purposes of joint 

operations. See 49 CFR 240.221(a) 

through (c). For each certified engineer, 

the listing is required to indicate the 

class of service the railroad determines 

the person is qualified to perform and 

the date of the railroad’s certification 

decision. The rule specifies that the 

listing required by paragraphs (a), (b), 

and (c) shall be updated at least 

annually and that a railroad may obtain 

approval from FRA to maintain the 

listing electronically. See § 240.221(d) 

and (f). The rule also specifies where 

these records are required to be kept so 

that FRA may inspect and copy them 

during regular business hours. The 

requirements found in § 240.221 have 

not been amended since they became 

effective on September 17, 1991. 

Overall, the industry is in substantial 

compliance with the requirements for 

identification of qualified persons under 

§ 240.221. FRA has not noticed 

significant non-compliance with 

maintaining the lists required for a 

railroad’s own employees, i.e., its own 

supervisors of locomotive engineers or 

its own certified locomotive engineers. 

Again, for its own employees, most 

railroads periodically update the listing 

with all the required information ‘‘so 

that it retains its usefulness’’ which FRA 

described as the goal of the listing in the 

section-by-section analysis when the 

rule was published. See 56 FR at 28249. 

The purpose of this document is to 

address issues related to maintaining 

the listing of those locomotive engineers 

employed by other railroads (foreign 

locomotive engineers) that have been 

designated as certified and qualified for 

the purposes of joint operations 

pursuant to § 240.221(c). Several 

railroads that have been found not 

properly maintaining a listing of foreign 

locomotive engineers certified and 

qualified for joint operations have taken 

some affirmative actions to come into 

compliance. However, the number of 

railroads in partial non-compliance is 

sufficiently wide-spread that FRA 

believes that clarification of the 


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