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1968, as amended, Section 1315, 42
U.S.C. 4022, prohibits flood insurance
coverage unless an appropriate public
body adopts adequate floodplain
management measures with effective
enforcement measures. The
communities listed no longer comply
with the statutory requirements, and
after the effective date, flood insurance
will no longer be available in the
communities unless remedial action
takes place.
Regulatory Classification. This final
rule is not a significant regulatory action
under the criteria of section 3(f) of
Executive Order 12866 of September 30,

1993, Regulatory Planning and Review,
58 FR 51735.
Executive Order 13132, Federalism.
This rule involves no policies that have
federalism implications under Executive
Order 13132.
Executive Order 12988, Civil Justice
Reform. This rule meets the applicable
standards of Executive Order 12988.
Paperwork Reduction Act. This rule
does not involve any collection of
information for purposes of the
Paperwork Reduction Act, 44 U.S.C.
3501 et seq.
List of Subjects in 44 CFR Part 64
Flood insurance, Floodplains.
Community
No.

State and location

Region IV
Tennessee:
Coffee County, Unincorporated Areas .................

470355

Manchester, City of, Coffee County ............................

470035

Accordingly, 44 CFR part 64 is
amended as follows:
PART 64—[AMENDED]
1. The authority citation for Part 64
continues to read as follows:

■

Authority: 42 U.S.C. 4001 et seq.;
Reorganization Plan No. 3 of 1978, 3 CFR,
1978 Comp.; p. 329; E.O. 12127, 44 FR 19367,
3 CFR, 1979 Comp.; p. 376.
§ 64.6

[Amended]

2. The tables published under the
authority of § 64.6 are amended as
follows:

■

Effective date authorization/cancellation of sale of
flood insurance in community

Current effective
map date

July 24, 1998, Emerg; June 1, 2005, Reg; May 15,
2020, Susp.
August 3, 1973, Emerg; October 17, 1978, Reg; May
15, 2020, Susp.

May 15, 2020 .......
......do * .................

Date certain
Federal assistance
no longer available
in SFHAs

May 15, 2020.
Do.

*......do = Ditto.
Code for reading third column: Emerg.—Emergency; Reg.—Regular; Susp.—Suspension.

Katherine B. Fox,
Assistant Administrator for Mitigation,
Federal Insurance and Mitigation
Administration—FEMA Resilience,
Department of Homeland Security, Federal
Emergency Management Agency.
[FR Doc. 2020–09720 Filed 5–12–20; 8:45 am]
BILLING CODE 9110–12–P

DEPARTMENT OF HOMELAND
SECURITY
Federal Emergency Management
Agency
44 CFR Part 333
[Docket ID FEMA–2020–0019]
RIN 1660–AB04

Emergency Management Priorities and
Allocations System (EMPAS)
Federal Emergency
Management Agency, DHS.
ACTION: Interim final rule.
AGENCY:

This interim final rule
establishes standards and procedures by
which the Federal Emergency
Management Agency (FEMA) may
require certain contracts or orders that
promote the national defense be given
priority over other contracts or orders.
This rule also sets new standards and
procedures by which FEMA may
allocate materials, services, and
facilities to promote the national
defense under emergency and non-

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SUMMARY:

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emergency conditions pursuant to
section 101 of the Defense Production
Act of 1950, as amended. These
regulations are part of FEMA’s response
to the ongoing COVID–19 emergency.
DATES: This rule is effective May 13,
2020.
Comment Date: Comments must be
received on or before June 12, 2020.
ADDRESSES: You may submit comments,
identified by Docket ID FEMA–2020–
0019, via the Federal eRulemaking
Portal: http://www.regulations.gov.
Follow the instructions for submitting
comments.
FOR FURTHER INFORMATION CONTACT:
Marc Geier, Office of Policy and
Program Analysis, 202–924–0196,
FEMA-DPA@fema.dhs.gov.
SUPPLEMENTARY INFORMATION:
I. Public Participation
Interested persons are invited to
participate in this rulemaking by
submitting comments and related
materials. We will consider all
comments and material received during
the comment period.
If you submit a comment, include the
Docket ID FEMA–2020–0019, indicate
the specific section of this document to
which each comment applies, and give
the reason for each comment. All
submissions may be posted, without
change, to the Federal e-Rulemaking
Portal at http://www.regulations.gov,
and will include any personal
information you provide. Therefore,

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submitting this information makes it
public.
Viewing comments and documents:
For access to the docket to read
background documents or comments
received, go to the Federal eRulemaking Portal at http://
www.regulations.gov.
II. Background
Section 101 of the Defense Production
Act of 1950, as amended (DPA or the
Act), authorizes the President to require
that performance under contracts or
orders (other than contracts of
employment) which he deems necessary
or appropriate to promote the national
defense take priority over performance
under any other contract or order.1 For
the purpose of assuring such priority,
the President may require acceptance
and performance of such contracts or
orders in preference to other contracts
or orders by any person he finds to be
capable of their performance.2 Section
101 also authorizes the President to
allocate materials, services, and
facilities in such manner, upon such
conditions, and to such extent as he
shall deem necessary or appropriate to
promote the national defense.3 For the
purposes of this discussion, these
authorities are referred to as the
1 50

U.S.C. 4511(a)(1).
U.S.C. 4511(a)(1).
3 50 U.S.C. 4511(a)(2).
2 50

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Federal Register / Vol. 85, No. 93 / Wednesday, May 13, 2020 / Rules and Regulations
President’s ‘‘priorities’’ and
‘‘allocations’’ authorities.
FEMA is publishing this rule to
comply with Section 101(d), which
requires agencies delegated authority
under Section 101 to issue final rules to
establish standards and procedures by
which the priorities and allocations
authority is used to promote the
national defense, under both emergency
and non-emergency conditions.
Executive Order 13911, ‘‘Delegating
Additional Authority Under the Defense
Production Act With Respect to Health
and Medical Resources To Respond to
the Spread of COVID–19,’’ 85 FR 18403
(Apr. 1, 2020), delegates the President’s
authority under Section 101 to the
Secretary of Homeland Security with
respect to health and medical resources
needed to respond to the spread of
Coronavirus Disease 2019 (COVID–19)
within the United States. Executive
Order 13911 provides that the Secretary
may use the authority under section 101
of the Act to determine, in consultation
with the heads of other executive
departments and agencies as
appropriate, the proper nationwide
priorities and allocation of health and
medical resources, including by
controlling the distribution of such
materials (including applicable services)
in the civilian market, for responding to
the spread of COVID–19 within the
United States. Executive Order 13911
also delegates implementing authorities,
such as enforcement authority under
section 705 of the Act.4
The Secretary of Homeland Security
has further delegated these authorities
to the FEMA Administrator.5 Priorities
authorities (and other authorities
delegated by the President to the
Secretary of Homeland Security and redelegated to the FEMA Administrator)
may be re-delegated by the
Administrator, to the extent consistent
with the requirements of 3 U.S.C. 301
and the delegation of Presidential
authority under which FEMA is
operating. The Administrator retains
authority for allocations.
This final rule establishes the
Emergency Management Priorities and
Allocations System (EMPAS), which
will become part of the Federal
Priorities and Allocations System
(FPAS), which is the body of regulations
that establishes standards and
procedures for implementing the
President’s authority under Section
101(a) of the DPA. Pursuant to Section
U.S.C. 4555.
Delegation 09052 Rev. 00.1, ‘‘Delegation of
Defense Production Act Authority to the
Administrator of the Federal Emergency
Management Agency’’ (Apr. 1, 2020).

101(d) of the DPA, heads of Federal
agencies to which the President
delegates authority under section 101
must issue rules that establish standards
and procedures by which the priorities
and allocations authority is used, and
develop a consistent and unified
Federal priorities and allocations
system.’’
The EMPAS regulations have two
principal components: Priorities and
allocations. Under the priorities
component, contracts, or orders
necessary or appropriate to support
programs that have been approved for
priorities support are required to be
accepted and given priority over other
contracts or orders to facilitate
expedited delivery to promote the U.S.
national defense. Under the allocations
component, materials, services, and
facilities may be allocated to promote
the national defense. For both
components, the term ‘‘national
defense’’ is defined broadly and
includes critical infrastructure
protection and restoration, emergency
preparedness and response, and
recovery from man-made disasters.6
Section 101(d)(2) requires agencies
with delegated authority under section
101 to consult as appropriate and to the
extent practicable with other Federal
agencies to develop a consistent and
unified Federal priorities and
allocations system. This rule is one of
several rules published to implement
Section 101 of the Act. The final rules
of the agencies with Section 101
authorities, which are the Departments
of Commerce, Energy, Health and
Human Services, Transportation, and
Agriculture,7 currently constitute the
FPAS. FEMA is publishing this interim
final rule in compliance with Section
101(d) and FEMA’s EMPAS provisions
are consistent with the FPAS
regulations issued by other agencies.
Given the context in which the
President delegated these authorities to
the Secretary of Homeland Security,
who then redelegated such authorities
to the FEMA Administrator, FEMA
prioritized consistency with those FPAS
regulations that FEMA already uses and
are most relevant to the current
pandemic crisis. The regulations
therefore draw heavily on (1) the
Department of Commerce’s Defense
Priorities and Allocations System
(DPAS) regulations, found at 15 CFR
part 700, which are the most commonly
referenced and used FPAS regulations
and which FEMA currently relies upon

4 50

5 DHS

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6 See

50 U.S.C. 4552(14).
Executive Order 13603, ‘‘National Defense
Resources Preparedness,’’ section 201, 77 FR 16651
(Mar. 22, 2012).
7 See

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28501

pursuant to a delegation of authority,8
and (2) the Department of Health and
Human Services’ Health Resources
Priorities and Allocations System
(HRPAS) regulations, found at 45 CFR
part 101, which relate to a resource
category similar to the immediate
impetus for this rulemaking. In general,
in choosing between competing
provisions, FEMA has favored those
provisions that allow FEMA to respond
to emergency circumstances, including
the current pandemic crisis, with the
greatest flexibility and speed.
The specific proposals in this rule are
more fully described below.
III. Discussion of the Interim Final Rule
This interim final rule adds 44 CFR
part 333 to establish standards and
procedures for prioritization of contracts
and orders and for allocation of
materials, services, and facilities to
promote the national defense under
both emergency and non-emergency
conditions.
A. Subpart A—Purpose
Section 333.1 states that the purpose
of the EMPAS, in general terms, is
providing standards and procedures for
use of those priorities and allocations
authorities under the Defense
Production Act that are the subject of a
delegation from the President to DHS or
FEMA. This includes, but is not limited
to, use of such authority to support
emergency preparedness activities
pursuant to Title VI of the Robert T.
Stafford Disaster Relief and Emergency
Assistance Act (42 U.S.C. 5195 et seq.),
and related statutes, with respect to
health and medical resources needed to
respond to the spread of COVID–19
within the United States pursuant to
Executive Order 13911.
FEMA has not limited the
applicability of this rule to the COVID–
19 context because of FEMA’s unique
mission set. Although FEMA’s current
authority under section 101—which
relates to health and medical resources
needed to respond to the spread of
COVID–19 within the United States—is
based on Executive Order 13911, FEMA
believes that it is critical to ensure that
FEMA has an established set of EMPAS
8 See generally U.S. Dep’t of Commerce, DPAS
Delegation 4, Delegation of Authority to the
Secretary of Homeland Security, https://
www.fema.gov/media-library-data/1484838423965e82805cf10b55929142fab1fced213d8/DPAS_
Delegation_4.pdf (Mar. 8, 2016) (delegating
authority to DHS); DHS Delegation 09052 Rev. 00.1
(Apr. 1, 2020) (delegating authority to FEMA). The
Department of Commerce is the resource
department for ‘‘all other materials, services, and
facilities, including construction materials’’ under
Executive Order 13603 section 201, 77 FR 16651
(Mar. 22, 2012).

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regulations available for immediate use
in the event that the President delegates
to DHS or FEMA additional priorities
and allocations authorities in the future,
including during an emergency
situation. As stated in the description of
section 333.2 below, FEMA does not
anticipate a conflict with the delegated
authorities of other resource agencies.

FEMA may construe this term to allow
for a tangible format. As noted below,
FEMA has made clear in certain
provisions that it will not just permit,
but also require, electronic
communications.

B. Subpart B—Overview

1. Section 333.10

1. Section 333.2

Section 333.10 describes the authority
under which FEMA is implementing
DPA Section 101. Consistent with
section 333.1, although this rule is being
issued to implement the delegation of
authority in Executive Order 13911 with
respect to health and medical resources
needed to respond to the spread of
COVID–19 within the United States,
section 333.10 provides that FEMA may
operate this rule under any authorities
that the President may delegate to DHS
or FEMA (or through DHS to FEMA)
under section 101 of the Defense
Production Act. This approach will
ensure that FEMA is fully and
immediately capable of fulfilling its
emergency response and DPA
coordination duties, including such
duties as DHS and FEMA have long
held under 104(b) of Executive Order
13603, to the extent that the President
decides to further delegate priorities and
allocations authorities to DHS or FEMA
to carry out such duties.
FEMA does not anticipate that this
approach will result in any conflicts
with the delegated authorities of other
resource agencies, because these
regulations are specifically tied to
presidential delegations of authority.
Except in contexts where the President
has delegated additional priorities and
allocations authorities to DHS or FEMA,
FEMA will continue to rely on other
agencies’ existing FPAS regulations, and
the delegations issued thereunder, with
respect to priorities and allocations
issues.

Program Eligibility

Consistent with DPAS regulations at
15 CFR 700.2 and HRPAS regulations at
45 CFR 101.3, section 333.2 provides an
overview of program eligibility and
clarifies FEMA’s ability to delegate
authority to place priority ratings on
contracts or orders to certain Federal
Government agencies, to the extent
consistent with the delegation of
Presidential authority under which
FEMA is operating. FEMA will post
announcements regarding approved
programs to www.fema.gov.
2. Section 333.3
Rated Orders

Priority Ratings and

Consistent with the DPAS regulations
at 15 CFR 700.3, Section 333.3 explains
what priority ratings and rated orders
are and generally how they will operate
within EMPAS. Sections 333.4 through
333.7 are reserved.

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C. Subpart C—Definitions
The ‘‘Definitions’’ section appears in
Section 333.8 and provides definitions
for the relevant regulatory terms,
consistent with DPAS regulations at 15
CFR 700.8 and the HRPAS regulations at
45 CFR 101.20. Section 333.9 is
reserved. For purposes of this
rulemaking, FEMA has chosen to define
‘‘health and medical resources’’
consistent with the definition of ‘‘health
resources’’ in the HRPAS and other
FPAS regulations for convenience and
consistent with currently anticipated
needs. FEMA may revise this definition
by rulemaking, to the extent consistent
with Executive Order 13911, at a future
time. FEMA welcomes comment on this
issue.
In contrast to other FPAS regulations,
FEMA has chosen to specifically define
‘‘written’’ and ‘‘in writing’’ to make
clear that FEMA will accept either
tangible or electronic documents as
‘‘written’’ communications or records
under this rule. FEMA wishes to allow
electronic communication to the
greatest extent possible, to allow for
more efficient operations. In addition,
FEMA has defined ‘‘written electronic’’
to mean written and in electronic form,
except that when electronic form is
impracticable under the circumstances,

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D. Subpart D—Priorities and Placement
of Rated Orders

2. Section 333.11

Authority

Priority Ratings

Consistent with the DPAS regulations
at 15 CFR 700.11 and HRPAS
regulations at 45 CFR 101.31, section
333.11 describes the two possible levels
of priority and the program
identification symbols used when rating
an order. FEMA also clarifies that a
priorities directive is a directive issued
by FEMA regarding priority treatment
for a given item. Such directives take
precedence over any DX-rated order,
DO-rated order, or unrated order, as
stipulated in the directive.

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3. Section 333.12
Order

Elements of Rated

Consistent with the DPAS regulations
at 15 CFR 700.12, section 333.12
describes in detail what each rated order
must include, consisting of the
appropriate priority rating, delivery date
information, signatures, and required
language. Like the DPAS regulations,
this provision requires certain
emergency preparedness-related orders
to include a statement regarding the
time limits for accepting or rejecting the
order. Unlike the DPAS regulations,
FEMA is requiring that the statement
also include specific reference to the
mandatory acceptance and rejection
provisions of section 333.13. The
parallel DPAS regulation does not
require this level of specificity, but
FEMA thought it appropriate to require
this text in the interest of clarity.
FEMA has added new text to section
333.12, to specify additional elements
that must be included when FEMA or a
Delegate Agency issues a rated order to
facilitate a sale from the person to a
third party, regardless of the nature of
the third party’s relationship with the
Federal Government, if any. FEMA or a
Delegate Agency may take such an
action in the event that FEMA
determines that such an order is
necessary or appropriate to promote the
national defense. Paragraph (c) requires
all rated orders used to facilitate sales to
third parties to include language making
clear to the person receiving the order
that the order is being placed to
facilitate a sale to a third party. FEMA
believes the additional required
language in these rated orders will
ensure those receiving the order clearly
understand that the order is for the
facilitation of a sale to a third party, and
may help avoid any confusion or delay
that might otherwise occur. Section
333.19, discussed below, also details
special provisions for these orders.
Requiring the additional notification in
paragraph (c) of this section ensures that
persons receiving such orders are fully
informed of the applicability of the
special provisions in section 333.19.
As part of the COVID–19 response,
FEMA is coordinating efforts to assist
third parties in obtaining critical health
and medical resource supplies.
Including this language in each rated
order involving a third party ensures
clarity, including with respect to the
applicability of section 333.19, and is
consistent with FEMA’s role in
facilitating the delivery of these critical
resources to effectively respond to the
current COVID–19 crisis.

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4. Section 333.13 Acceptance and
Rejection of Rated Orders
Section 333.13 details when orders
placed by FEMA may or must be
accepted or rejected, and what the
procedures are for both, including
customer notification requirements for
emergency conditions. Specifically,
paragraph (a) requires acceptance of
every rated order received regardless of
any other rated or unrated orders that
have been accepted and prohibits
discrimination against rated orders such
as by charging higher prices or imposing
different terms and conditions.
Paragraph (b) requires rejection of rated
orders for delivery on a specified date
if the person is unable to fill the order
by that date, and requires the person to
inform the customer of the earliest date
on which delivery can be made and
offer to accept the order on that basis.
Paragraph (b) also provides for
mandatory rejection based on the order
rating, if other rated orders would be
impacted. Paragraph (c) provides for
optional rejection of rated orders in
limited circumstances, consistent with
DPAS regulations at 15 CFR 700.13(c)
and HRPAS regulations at 45 CFR
101.33(c). Paragraph (d) details the
customer notification requirements for
rated orders. Consistent with DPAS
regulations at 15 CFR 700.13(d)(2),
FEMA is adopting a requirement that
persons must accept or reject rated
orders for emergency preparedness
approved programs within the
timeframe stated on the order. The
regulation provides minimum time
frames of 6 hours after receipt of the
order if in response to a hazard
(including, for instance, an outbreak of
infectious disease) that has occurred, or
12 hours after receipt if the order is
issued to prepare for an imminent
hazard. FEMA is adopting these
timeframes because such orders would
require a shorter time frame to ensure
delivery in time to provide disaster
assistance, emergency response, or
similar activities. FEMA believes that
the exigent circumstances inherent in
such activities justify requiring a shorter
response time. Further, FEMA is
requiring written electronic
confirmation of shipment or
performance delays within a 24-hour
period (rather than the one-working-day
requirement in the DPAS regulations)
given the exigent circumstances under
which the agency must provide
emergency preparedness, mitigation,
response, and recovery services and the
need for clear, reliable statements
regarding such delays to ensure the
ultimate timely delivery of these
services.

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5. Section 333.14
Scheduling

Preferential

Consistent with DPAS regulation at 15
CFR 700.14, section 333.14 details
procedures for scheduling rated orders.
Paragraph (a) explains generally that
operations must be scheduled to satisfy
delivery requirements of each rated
order. Paragraph (b) details the
appropriate production preferences
based on rating order. Where rating
orders conflict, paragraph (c) explains
the appropriate preferences. If a person
is unable to resolve such a conflict, this
section refers them to special priorities
assistance provided in Sections 333.20
through 333.24. Paragraph (d) allows the
use of inventoried production items to
fill rated orders when a person is unable
to purchase the needed production
items in time to fill a rated order and
allows for their replacement with the
use of a rated order.
6. Section 333.15
Ratings

Extension of Priority

This section requires a person to use
rated orders with suppliers to obtain
items needed to fill a rated order,
allowing the priority rating to ‘‘extend’’
from contractor to subcontractor to
supplier throughout the entire
procurement chain. In paragraph (c),
FEMA is adopting the DPAS
requirement in 15 CFR 700.15(c) that a
person must use rated orders with
suppliers to obtain items needed to fill
an emergency preparedness order and
that the supplier must accept or reject
within the required time limit stated in
the rated order that is being filled.
FEMA is adopting the DPAS
requirement to ensure delivery in time
to provide disaster assistance,
emergency response, or similar services.
FEMA believes that the exigent
circumstances inherent in such
activities justify requiring a shorter
response time.
7. Section 333.16 Changes or
Cancellations of Priority Ratings and
Rated Orders
Consistent with both DPAS regulation
at 15 CFR 700.16 and HRPAS
regulations at 45 CFR 101.36, this
section provides procedures for
changing or cancelling a rated order by
FEMA, a Federal Government agency
authorized by delegation from FEMA to
place priority ratings on contracts or
orders needed to support approved
programs (a ‘‘Delegate Agency’’), and/or
other persons who placed the order.
Paragraph (a) explains how a priority
rating on a rated order may be changed
or cancelled and requires written
electronic notification from the person

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who placed the rated order to expedite
processing. Paragraph (b) explains that
suppliers must give the appropriate
preferential treatment to the order when
it is changed to a higher priority rating.
Paragraphs (c) and (d) describe what
types of amendments do and do not
constitute a new rated order,
respectively. Paragraph (e) requires
cancellation of rated orders or priority
ratings on orders if the person no longer
needs the items from suppliers.
Paragraph (f) requires prompt
notification to all suppliers of rating
additions, changes, or cancellations via
written electronic notification to
expedite processing.
8. Section 333.17

Use of Rated Orders

This section lists what items must be
rated. Paragraph (a) details what rated
orders must be used to obtain.
Consistent with both DPAS regulation at
15 CFR 700.17(b) and HRPAS
regulations at 101.37(b), paragraph (b)
allows a person to use a rated order to
replace inventoried items if such items
were used to fill rated orders, under
certain circumstances. Paragraphs (c)
and (d) describe the use of program
identification symbols when rated
orders are combined, and detail the
procedures for combining two or more
rated orders, as well as rated and
unrated orders. Paragraph (e) addresses
rated orders for the minimum
commercially procurable quantity, and
paragraph (f) discusses ratings on
contracts and orders for less than one
half of the Simplified Acquisition
Threshold as established by the Federal
Acquisition Regulation (FAR). See 48
CFR 2.101. FEMA’s provision is
consistent with the parallel DPAS and
HRPAS provisions, except that FEMA’s
provision eliminates the specific dollar
amount to ensure consistency with the
current and future FAR provisions.9
9. Section 333.18 Limitations on
Placing Rated Orders
Consistent with DPAS regulations at
15 CFR 700.18, section 333.18 prohibits
the use of rated orders under specific
circumstances. Paragraph (a) sets forth
the general limitations on placing a
rated order, and paragraph (b) prohibits
the use of rated orders to obtain earlier
than needed delivery dates, greater than
needed quantities of items, items in
advance of the receipt of a rated order,
or other specific items.
9 See, e.g., 84 FR 52420 (Oct. 2, 2019) (proposed
increase to micro-purchase and simplified
acquisition thresholds).

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10. Section 333.19 Special Provisions
Applicable to Rated Orders for Third
Parties
In addition to the required language
for each rated order regarding third
party facilitations provided in section
333.12, FEMA is adding section 333.19
to specifically address rated orders for
third parties. Given the unique
circumstances faced in the COVID–19
pandemic, it may be necessary or
appropriate for FEMA to use its priority
rating authority under section 101(a)(1)
of the DPA to facilitate the sale of health
and medical resources to third parties.
FEMA believes that it may be able to use
such transactions to assist third parties
in obtaining critical health and medical
resource supplies as part of the current
response for COVID–19. Such
transactions may also be useful in other
emergency circumstances. Adding a
regulatory provision regarding this type
of order benefits all parties, by creating
a clear framework for such transactions.
Paragraph (a) makes clear that the
EMPAS applies to rated orders placed
by FEMA or a Delegate Agency to
facilitate sales to third parties, unless
otherwise specified. Paragraph (b)
provides that where FEMA or a Delegate
Agency has placed a rated order to
facilitate a sale to a third party, the third
party will be responsible for satisfying
the applicable terms of sale and
payment. The Federal Government will
not be liable for any failure to meet the
terms of sale or payment for rated orders
to facilitate sales to third parties.
Paragraph (c) provides that FEMA or the
Delegate Agency may amend or cancel
the rated order pursuant to section
333.16 if the third party is unable to
satisfy the applicable terms of sale or
payment. Paragraph (c) confirms that an
amendment to such an order to provide
for delivery to FEMA, the Delegate
Agency, or another third party would
not constitute a new rated order. FEMA
believes these additional provisions are
essential to clarify the requirements for
rated orders to facilitate sales to third
parties.
In the event that FEMA determines
that facilitation of sales to third-parties
is necessary or appropriate to support
the national defense, this provision of
the EMPAS regulations will help clarify
the roles and responsibilities of FEMA
and/or the Delegate Agency, the third
party, and the person(s) receiving the
order. FEMA seeks comment on this
section.

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E. Subpart E—Special Priorities
Assistance
1. Section 333.20 General Provisions
Consistent with DPAS regulations at
15 CFR 700.50 and with Department of
Agriculture regulations at 7 CFR 789.20,
this section lays out how and when
FEMA may provide special priorities
assistance and how a person should
contact FEMA or the Delegate Agency
(as appropriate) when seeking
assistance. Paragraph (a) describes what
special priorities assistance is and the
circumstances in which it might be
needed. Paragraph (b) explains that
special priorities assistance is available
for any reason consistent with part 333
and offers specific examples of issues
that special priorities assistance may
help to resolve, including authorizing
the use of priority ratings on orders to
obtain items not otherwise ratable under
this part. The examples provided in this
section are not a full and complete list
of the types of issues that special
priorities assistance may help to resolve,
but merely a sample of common issues
offered as guidance. Paragraph (c)
provides information about how
requests for special priorities assistance
may be submitted.
2. Section 333.21 Requests for Priority
Rating Authority
Consistent with HRPAS regulations at
45 CFR 101.41, this section identifies
circumstances in which a person may
request authority to use a priority rating
on orders to obtain items not normally
rated under this part; provides
information on where to submit requests
for priority rating authority for
production or construction equipment
and when such orders may be used to
lease such equipment; and details when
FEMA may authorize a person to place
a priority rating on an order to a
supplier in advance of the issuance of
a rated prime contract, and lists factors
FEMA will consider in deciding
whether to grant this authority.
Paragraph (a) provides that when a
rated order is likely to be delayed
because a person is unable to obtain
items not normally rated under this
part, the person may request authority
to use a priority rating in ordering the
items.
Paragraph (b)(1) explains that requests
for priority rating authority for
production or construction equipment
must be submitted to the Department of
Commerce using the appropriate form.
Paragraph (b)(2) provides that when the
use of a priority rating is authorized for
the procurement of production or
construction equipment, a rated order
may be used either to purchase or to

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lease such equipment. However, in the
latter case, the equipment may be leased
only from a person engaged in the
business of leasing such equipment or
from a person willing to lease rather
than sell.
Paragraph (c) sets forth the
requirements for placing a priority
rating on an order in advance of the
issuance of a rated prime contract.
Paragraph (c)(1) provides that upon
specific request, FEMA may authorize
such a placement to promote the
national defense. The requestor must
obtain sponsorship of the request from
FEMA or the appropriate Delegate
Agency, and the requestor must assume
any business risk associated with the
advanced placement of rated orders in
the event the rated prime contract is not
issued. Paragraph (c)(2) contains a
statement that must be included in
requests for authority to place a priority
rating on an order in advance of a rated
prime contract. This statement, when
included as part of a request, ensures
the requestors understand and accept
the liability they assume, as required in
paragraph (c)(1), for any business risk
associated with the advance placement
of rated orders in the event the rated
prime contract is not issued. Paragraph
(c)(3) provides that when reviewing
requests for rating authority in advance
of a rated prime contract, FEMA will
consider, among other things, five
specific criteria: The probability that the
prime contract will be awarded; the
impact of the resulting rated orders on
suppliers and on other authorized
programs; whether the contractor is the
sole source; whether the item being
produced has a long lead time; and the
time period for which the rating is being
requested. Paragraph (c)(4) permits
FEMA to require periodic reports on the
use of the authority granted under
paragraph (c), in order to ensure
appropriate oversight. Paragraph (c)(5)
requires that when advance rating
authority has been granted but a rated
prime contract is not issued, the person
who requested the advance rating
authority must promptly notify all
suppliers who have receive rated orders
pursuant to the advance rating authority
that the priority rating on those orders
is cancelled.
3. Section 333.22 Examples of
Assistance
Consistent with DPAS regulations at
15 CFR 700.52 and HRPAS regulations
at 45 CFR 101.42, this section provides
a number of examples of situations
where special priorities assistance may
be provided. Although such assistance
may generally be provided for any
reason in support of this part, special

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priorities assistance is usually provided
in situations where there is difficulty
obtaining delivery against a rated order
by the required delivery date or
difficulty locating a supplier for an item
needed to fill a rated order. The
examples provided in this section are
not a full and complete list of the types
of assistance available under this
subpart, but merely an illustrative
sample offered as guidance.
4. Section 333.23
Assistance

Criteria for

Consistent with both DPAS
regulations at 15 CFR 700.53 and
HRPAS regulations at 45 CFR 101.43,
this section provides criteria for
granting requests for special priorities
assistance. Consistent with the
requirements of this part, requests for
special priorities assistance must
establish that there is an urgent need for
the item and that the person making the
request has made a reasonable effort to
resolve the problem. Requests should
also be submitted in a timely manner, to
allow sufficient time for FEMA or the
Delegate Agency to provide a
meaningful resolution to the problem;
requests submitted too late to allow for
such a resolution waste limited
administrative resources and time, both
of which are crucial in emergency
situations.
5. Section 333.24 Instances Where
Assistance Will Not Be Provided
Consistent with both DPAS
regulations at 15 CFR 700.54 and
HRPAS regulations at 45 CFR 101.44,
this section makes clear that special
priorities assistance is provided at the
discretion of FEMA or the Delegate
Agency and provides examples of
instances in which assistance may not
be provided. The examples provided are
not a full and complete list of the cases
in which assistance may not be
provided, but simply a few common
cases where assistance is not warranted
to meet the objectives of this part, and
therefore may not be granted.

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F. Subpart F—Allocation Actions

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1. Section 333.30

Policy

The DPAS regulations at 15 CFR
700.30 and HRPAS regulations at 45
CFR 101.50 include statements of
allocations policy. Under these
provisions, allocation orders will only
be used if priorities authority will not
provide a sufficient supply of materials,
services, or facilities for national
defense requirements, or when use of
priorities authority will cause a severe
and prolonged disruption in the supply
of resources available to support normal
U.S. economic activities. Allocation
orders will not be used to ration
materials or services at the retail level.
Allocation orders will be distributed
equitably among the suppliers of the
resource(s) being allocated and will not
require any person to relinquish a
disproportionate share of the civilian
market. Although these policies may be
prudent outside the context of a
national emergency, and FEMA will
strive to abide by such policies to the
extent practicable and appropriate,
FEMA requires flexibility to depart from
them in the emergency context. Many
different forms of allocations may need
to be exercised in the emergency context
when a hazard has occurred or is
imminent, including but not limited to,
full allocation of the entire supply of a
material, end-use restrictions,
conservation measures, set-asides or
allotments for emergency requirements,
set-asides or allotments for small
businesses, inventory restrictions, and
other appropriate measures of control as
warranted by the emergency conditions.
FEMA must be able to order such
allocations regardless of whether such
allocations implicate paragraphs (a) or
(b) of section 333.30.
FEMA has therefore incorporated
these general policies in section 333.30,
with an exception for emergency
situations where a hazard has occurred
or is imminent.
2. Section 333.31

Generally, the standards set forth in
Sections 333.30 through 333.32 mirror
similar provisions in the DPAS
regulations at 15 CFR 700.30 through
700.32 and HRPAS regulations at 45
CFR 101.50 through 101.52 and provide
reasonable assurance that allocation
orders will be used only in situations
where the circumstances justify such
orders. Sections 333.33 through 333.36
address the types of allocation orders,
elements required for an allocation
order, and the process for acceptance,

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modification, and cancellation of
allocation orders.

General Procedures

Before FEMA uses its allocations
authority to address a supply problem,
the agency will develop a plan pursuant
to section 333.31 that includes a copy of
the written determination that the
program or programs to be supported by
the allocation action are necessary or
appropriate for the national defense, as
well as other elements consistent with
the requirements found in the DPAS
regulations at 15 CFR 700.31 and
HRPAS regulations at 45 CFR 101.51.

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3. Section 333.32 Controlling the
General Distribution of a Material in the
Civilian Market
Section 333.32 prohibits allocation
action by FEMA to control the general
distribution of a material in the civilian
market unless very specific conditions
are met. Consistent with DPAS
regulations at 15 CFR 700.32, FEMA’s
Administrator must make a written
finding that such material is a scarce
and critical material essential to the
national defense, and that national
defense requirements cannot otherwise
be met without creating a significant
dislocation of the normal distribution of
such material in the civilian market to
such a degree as to create appreciable
hardship.
With respect to the present COVID–19
emergency, the President has already
found that health and medical resources
needed to respond to the spread of
COVID–19, including personal
protective equipment and ventilators,
meet the criteria specified in section
101(b) of the Act. The President has
specifically delegated, to the Secretary
of Health and Human Services and the
Secretary of Homeland Security,
authority to identify additional specific
health and medical resources that meet
the criteria of section 101(b). 85 FR
16227 (Mar. 23, 2020) (delegation to
HHS); 85 FR 18403 (delegation to DHS).
The Administrator has already issued an
allocation order on the basis of that
Presidential determination and related
direction. See 85 FR 20195 (Apr. 10,
2020).10 Thus, with respect to health
and medical resources needed to
respond to the spread of COVID–19, no
further action under new section 333.32
is necessary.
4. Section 333.33 Types of Allocation
Orders
Section 333.33 describes the three
types of allocation orders that FEMA
might issue. The types of allocation
orders are a set-aside, a directive, and an
allotment. A set-aside is an official
action that will require a person to
reserve resource capacity in anticipation
of receipt of rated orders. An allocation
directive is an official action that will
require a person to take or refrain from
taking certain actions in accordance
with its provisions (a directive may,
among other things, require a person to
stop or reduce production of an item,
prohibit the use of selected materials, or
10 Although FEMA effectuated such allocation
order via a temporary rule that predates the
regulations announced here, FEMA retains
authority to administer and enforce that allocation
order according to its terms, and to issue future
allocation orders consistent with the procedures
announced here.

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divert the use of materials, services, or
facilities from one purpose to another).
An allotment is an official action that
will specify the maximum quantity of a
resource authorized for a specific use.
Consistent with DPAS regulations at 15
CFR 700.33 and HRPAS regulations at
45 CFR 101.53, FEMA is specifying
these three types of allocation orders
because it believes that, collectively,
they describe the types of actions that
might be taken in any situation in which
allocation is justified.
5. Section 333.34 Elements of an
Allocation Order
FEMA sets forth the elements of an
allocation order in section 333.34.
Specifically, FEMA is adopting the
DPAS regulation at 15 CFR 700.34 to
allow allocation orders to be issued
directly to the affected persons or by
constructive notice. Pursuant to
paragraph (a), all allocation orders must
include a detailed description of the
required allocation action(s), including
its relationship to previously or
subsequently received rated and/or
unrated orders, and specific start and
end calendar dates for each required
allocation action. Paragraph (b) sets
forth the elements of the allocation
order when issued directly to the
affected persons, including the
necessary statement regarding to whom
the allocation order is issued, the
purpose of the allocation order (for
national defense), a citation to the
EMPAS regulations, and the written
signature of the Administrator.
Paragraph (c) sets forth the elements of
the allocation order when issued by
constructive notice through publication
in the Federal Register. Specifically,
paragraph (c) requires FEMA to publish
a notice in the Federal Register with a
statement regarding to whom the
allocation order is issued, the purpose
of the allocation order, a citation to the
EMPAS regulations, and the signature of
the Administrator.
FEMA is adopting constructive notice
to ensure timely notice to impacted
persons. Given the unique emergency
preparedness, mitigation, response, and
recovery conditions under which FEMA
will utilize this authority, the agency
believes allowing for constructive
notice, similar to the DPAS regulations,
is appropriate.
Consistent with DPAS regulations at
15 CFR 700.34 and HRPAS regulations
at 45 CFR 101.54, FEMA requires the
specific elements for each order because
it believes that they provide a proper
balance between the need for standards
to permit the public to recognize and
understand an allocation order if one is
issued, and the expectation that any

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actual allocation orders will have to be
tailored to meet unforeseeable
circumstances.

pertaining to compliance are discussed
in section 333.61, which is in Subpart
I.

6. Section 333.35 Mandatory
Acceptance of an Allocation Order
Section 333.35(a) requires that except
as otherwise specified in this section, an
allocation order must be accepted.
Section 333.35(b) prohibits persons
from discriminating against an
allocation order in any manner, such as
by charging higher prices or imposing
terms and conditions different than
what the person imposed on contracts
or orders for the same resource(s) that
were received prior to receiving the
allocation order. If a person is unable to
comply fully with the required actions
specified in an allocation order, Section
333.35(c) requires the person to notify
FEMA immediately, explain the extent
to which compliance is possible, and
give reasons why full compliance is not
possible. FEMA is adopting the
requirement that if such notification is
given verbally, written electronic
confirmation must be provided within
24 hours (rather than the one-workingday requirement in the DPAS
regulations) given the urgency with
which emergency preparedness,
mitigation, response, and recovery
operations must occur and the need for
clear, reliable statements regarding such
delays to ensure the ultimate timely
delivery of these operations. Section
333.35 makes it clear to the public that
the limited circumstances and
emergency situations that trigger
issuance of an allocation order require
immediate response to address the
situation in an expeditious fashion.

2. Section 333.51 Rating
Authorizations
Consistent with both the DPAS
regulations at 15 CFR 700.61 and
HRPAS regulations at 45 CFR 101.61,
section 333.51 defines a rating
authorization as an official action
granting specific priority rating
authority and refers persons to section
333.21 to request such priority rating
authority.

7. Section 333.36 Changes or
Cancellations of Allocation Orders
Section 333.36 requires an official
action from FEMA to change or cancel
an allocation order. Consistent with
DPAS regulations at 15 CFR 700.36,
FEMA is allowing notice of changes or
cancellations of allocation orders to be
provided either directly to persons to
whom the order applies or by
constructive notice. FEMA may
complete constructive notice by
publication in the Federal Register.
G. Subpart G [Reserved]
H. Subpart H—Official Actions
1. Section 333.50 General Provisions
From time to time, FEMA may take
specific official actions to implement or
enforce the EMPAS regulations.
Consistent with DPAS regulations at 15
CFR 700.60, Section 333.50 provides an
overview of this subpart and clarifies in
paragraph (b) that some official actions

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3. Section 333.52 Directives
Section 333.52(a) defines a directive
as an official action that requires a
person to take or refrain from taking
certain actions in accordance with its
provisions. Paragraph (b) details
directive compliance for the public,
prohibiting persons from using or
extending a directive to obtain items
from a supplier, unless expressly
authorized to do so in the directive.
Consistent with HRPAS regulations at
45 CFR 101.62(c) and (d), FEMA is
clarifying in paragraph (c) that a
priorities directive takes precedence
over all rated orders, and unrated orders
previously or subsequently received,
unless a contrary instruction appears in
the directive. FEMA is also clarifying in
paragraph (d) that an allocations
directive takes precedence over all
priorities directives, rated orders, and
unrated orders previously or
subsequently received, unless a contrary
instruction appears in the directive.
FEMA believes this additional
clarification helps better explain the
role of directives in the EMPAS process.
4. Section 333.53 Letters and
Memoranda of Understanding
Consistent with HRPAS regulations at
45 CFR 101.63, FEMA defines a letter or
memorandum of understanding as an
official action that may be issued to
resolve special priorities assistance
cases to reflect an agreement reached by
all parties, and explains its use. FEMA
is clarifying in paragraph (a) that letters
and memorandum of understanding
may be issued electronically for
efficiency. Given the urgency with
which emergency preparedness,
response, and recovery operations must
occur, FEMA believes written electronic
communication is the most efficient and
effective method for these official
actions.
I. Subpart I—Compliance
1. Section 333.60 General Provisions
This section details the actions which
may be taken by FEMA to enforce or

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administer the DPA and other
applicable statutes. FEMA is clarifying
in paragraph (a) that compliance actions
include audits, investigations, and other
inquiries. The agency may use other
official actions such as administrative
subpoenas, demands for information, or
inspection authorizations as part of the
compliance process. Consistent with
HRPAS regulations at 45 CFR 101.70(b),
paragraph (b) reiterates that any person
who places or receives a rated order or
an allocation order must comply with
this part and paragraph (c) states that
willful violation of the provisions of
title I or section 705 of the DPA or other
applicable statutes, this part, or a FEMA
official action is a criminal act
punishable as provided in the DPA and
other applicable statutes. FEMA is
mirroring the HRPAS regulations at 45
CFR 101.70(b) and (c) in paragraphs (b)
and (c) as they provide clarity to the
public regarding the need for
compliance and the repercussions of
failing to comply.
2. Section 333.61 Audits and
Investigations
Consistent with the DPAS regulations
at 15 CFR 700.71 and HRPAS
regulations at 45 CFR 101.71, Section
333.61 details the procedures for audits
and investigations. Paragraph (a) defines
audits and investigations as official
actions involving the examination of
books, records, documents, and other
writings and information, including
electronically stored information, to
ensure that the provisions of the DPA
and other applicable statutes, this part,
and official actions taken by FEMA have
been properly followed. An audit or
investigation may also include
interviews and a systems evaluation to
detect problems or failures in the
implementation of this part. Paragraph
(b) explains that FEMA will define the
scope and purpose in the official action
given to the person under investigation
and confirm that the information sought
is not available from any Federal or
other responsible agency. Consistent
with HRPAS regulations at 45 CFR
101.71(c), paragraph (c) discusses how
FEMA will administer audits and
investigations, including how the
agency will utilize administrative
subpoenas, demands for information,
and inspection authorizations.
Paragraph (d) discusses how writings
and information will be reviewed and
paragraph (e) details the required
elements of administrative subpoenas,
demands for information, and
inspection authorizations. Paragraph (f)
provides an explanation of how service
of documents will be made. As
compared to other FPAS regulations,

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paragraph (f) contains an additional
flexibility appropriate to FEMA’s
emergency response functions.
Specifically, this paragraph provides
that when a hazard has occurred or is
imminent, service of a demand for
information or inspection authorization
may additionally be made by written
electronic communication.
3. Section 333.62 Compulsory Process
Paragraph (a) of section 333.62
provides that if a person refuses to
permit a duly authorized FEMA
representative to have access to
necessary information, FEMA may seek
to institute appropriate legal action,
including ex parte application for an
inspection warrant, in any forum of
appropriate jurisdiction. Consistent
with DPAS regulations at 15 CFR
700.72(b), paragraph (b) explains that
compulsory process may be sought in
advance of an audit, investigation, or
other inquiry if in the judgment of the
Administrator, in consultation with the
FEMA Chief Counsel, there is a reason
to believe that a person will refuse to
permit an audit, investigation, or other
inquiry, or that other circumstances
exist which make such process desirable
or necessary.
4. Section 333.63 Notification of
Failure To Comply
Consistent with HRPAS regulations at
45 CFR 101.73, section 333.63(a) states
that FEMA may provide notification,
following an audit, investigation, or
other inquiry, of failure to comply with
the DPA, other applicable statutes, these
regulations, or official actions. FEMA
has revised paragraph (a), as compared
to other FPAS regulations, to make clear
that FEMA may provide such
notification irrespective of whether the
person’s failure to comply was
inadvertent or willful. Paragraph (b)
permits FEMA to allow for corrective
action to be taken for an inadvertent
failure to comply with the DPA, and
notes that failure to take corrective
action may be construed as willful
violation of the relevant authority.
5. Section 333.64 Violations, Penalties,
and Remedies
Section 333.64 describes the resulting
penalties and remedies for failure to
comply, as well as other measures that
may be taken and actions that are
prohibited. FEMA is mirroring the
HRPAS regulations at 45 CFR 101.74 for
this section.
6. Section 333.65 Compliance
Conflicts
This section requires that persons
immediately contact FEMA should

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compliance with the DPA or other
applicable statutes, this part, or an
official action prevent a person from
filling a rated order or from complying
with another provision of the DPA or
other applicable statutes, this part, or an
official action.
J. Subpart J—Adjustments, Exceptions,
and Appeals
1. Section 333.70 Adjustments or
Exceptions
Section 333.70 reflects the procedures
necessary to request an adjustment or
exception to the provisions of these
regulations. Paragraph (a) allows a
person to submit a request to FEMA for
an adjustment or exception where (1) a
provision of this part or an official
action results in undue or exceptional
hardship not suffered generally by
others in similar situations and
circumstances; or (2) the consequences
of following a provision of this part or
an official action is contrary to the
intent of the DPA and other applicable
statutes, or this part. Paragraph (b)
details the required elements of each
request for adjustment or exception.
Paragraph (c) explains that a request for
adjustment of exception does not relieve
any person from the obligation of
complying while the request is being
considered, unless interim relief is
granted in writing. Similar to the
corresponding HRPAS provision at 45
CFR 101.80(c), and in contrast to the
corresponding DPAS provision at 15
CFR 700.80(c), FEMA does not impose
a specific deadline for responding to
such a request, to provide maximum
flexibility in the event of a surge in such
requests. FEMA intends to respond to
all such requests within a reasonable
timeframe. Paragraph (d) states that
decisions may be appealed to the
Administrator.
2. Section 333.71 Appeals
This section provides the procedures,
timing, and contact information for
appealing a decision made on a request
for relief in the previous section and is
generally consistent with DPAS
regulations at 15 CFR 700.81 and
HRPAS regulations at 45 CFR 101.81.
Paragraph (b) incorporates the timeline
in HRPAS regulations for adjustment or
exception involving rated orders placed
for the purpose of health and medical
resources, set at 15 days after receipt of
a written notice of denial consistent
with the exigent circumstances under
which FEMA is operating in emergency
preparedness situations where a hazard
has occurred or is imminent. Paragraph
(g) reiterates that filing an appeal does
not relieve any obligation to comply

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with the provisions of this part or any
official action in question while the
appeal is being considered, unless such
relief is granted in writing by FEMA.
Paragraph (h) incorporates the
requirements from the DPAS regulations
at 15 CFR 700.81(h) that a decision be
made in writing within a reasonable
time after receipt of the appeal and shall
be the final administrative action.
K. Subpart K—Miscellaneous Provisions
1. Section 333.80 Protection Against
Claims
Consistent with DPAS regulations at
15 CFR 700.90 and HRPAS regulations
at 45 CFR 101.90, this section provides
that a person shall not be held liable for
damages or penalties for any act or
failure to act resulting directly or
indirectly from compliance with any
part of this regulation or an official
action.
2. Section 333.81 Records and Reports
Section 333.81 requires persons to
make and preserve for at least three
years, accurate and complete records of
any transaction covered by this part or
an official action. Various requirements
and procedures regarding such records
are provided in this section. The
confidentiality provisions of the DPA
governing the disclosure of information
submitted pursuant to the DPA and this
part are also set forth. Although the
corresponding DPAS provision at 15
CFR 700.91(e) applies to ‘‘information
obtained under this section [15 CFR
700.91],’’ the confidentiality provisions
of section 705(d) of the Act apply to all
information obtained under section 705.
FEMA’s section 333.81(e) therefore
refers to all information obtained under
section 705 of the act, rather than
information obtained under 44 CFR
333.81.
3. Section 333.82 Applicability of This
Part and Official Actions
Consistent with the DPAS regulations
at 15 CFR 700.92 and HRPAS
regulations at 101.92, section 333.82
provides the scope and jurisdictional
applicability of this part and official
actions.

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4. Section 333.83 Communications
Section 333.83 provides a FEMA
point of contact for general
communications regarding this part.
5. Section 333.84 Severability
Section 333.84 provides that FEMA
intends the various provisions of this
part to be severable from each other to
the extent practicable, such that if a
court of competent jurisdiction were to
vacate or enjoin any one provision, the

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other provisions are intended to remain
in effect unless they are dependent
upon the vacated or enjoined provision.
IV. Regulatory Analysis
A. Administrative Procedure Act (APA)
For the reasons that follow, FEMA is
issuing this rule as an interim final rule
pursuant to the APA’s ‘‘good cause’’
exception for rules with respect to
which ‘‘notice and public procedure’’ is
‘‘impracticable, unnecessary, or contrary
to the public interest.’’ 5 U.S.C.
553(b)(B).
Under section 709(a) of the Act (50
U.S.C. 4559(a)), rules implementing the
DPA are generally not subject to
sections 551 through 559 of title 5,
which includes the informal rulemaking
procedures of the Administrative
Procedure Act (APA) at 5 U.S.C. 553.
However, section 101(d)(1) of the DPA,
which this rule specifically implements,
contains an exception to section 709(a),
because it specifically directs resource
agencies to issue, ‘‘in accordance with
section 553 of title 5,’’ rules establishing
the standards and procedures by which
the priorities and allocations authority
is used to promote the national defense,
under both emergency and
nonemergency conditions. FEMA is
issuing this interim final rule ‘‘in
accordance with’’ the requirements of 5
U.S.C. 553, including the good cause
provisions in 5 U.S.C. 553(b)(B) and (d).
The exigent need for this rule is
related to the COVID–19 pandemic.
COVID–19 is a communicable disease
caused by a novel (new) coronavirus,
SARS–CoV–2, that was first identified
as the cause of an outbreak of
respiratory illness that began in Wuhan,
Hubei Province, People’s Republic of
China. In severe cases, manifestations of
the COVID–19 disease have included
severe pneumonia, acute respiratory
distress syndrome, septic shock, multiorgan failure, and death.
On January 30, 2020, the Director
General of WHO declared that the
outbreak of COVID–19 is a Public
Health Emergency of International
Concern under the International Health
Regulations.11 The following day, the
Secretary of HHS declared COVID–19 a
public health emergency under the
Public Health Service Act.12 On March
11 Statement on the second meeting of the
International Health Regulations (2005) Emergency
Committee regarding the outbreak of novel
coronavirus (2019–nCoV) (January 30, 2020),
available at https://www.who.int/news-room/detail/
30-01-2020-statement-on-the-second-meeting-ofthe-international-health-regulations-(2005)emergency-committee-regarding-the-outbreak-ofnovel-coronavirus-(2019-ncov).
12 HHS, ‘‘Determination that a Public Health
Emergency Exists,’’ available at https://

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11, 2020, the WHO declared COVID–19
a pandemic.13 On March 13, 2020, the
President declared a national emergency
under the National Emergencies Act (50
U.S.C. 1601 et seq.),14 and declared a
nationwide emergency under the Robert
T. Stafford Disaster Relief and
Emergency Assistance Act (42 U.S.C.
5121 et seq.), authorizing FEMA to
provide assistance for emergency
protective measures to respond to the
COVID–19 pandemic.15
The President exercised his authority
pursuant to the DPA to respond to the
COVID–19 pandemic in Executive
Orders 13909 and 13910, authorizing
the Secretary of Health and Human
Services to prioritize and allocate health
and medical resources under section
101 of the DPA and prevent hoarding of
such resources under section 102 of the
DPA to respond to the spread of
COVID–19.16 In Executive Order 13911,
the President delegated additional
authority under the DPA, including
delegating to the Secretary of Homeland
Security the authority conferred by
section 101 of the DPA. The President
has also delegated to the Secretary of
Homeland Security the authority to
promulgate regulations necessary to
implement the Executive Order. The
Secretary of Homeland Security has
further delegated this authority to the
FEMA Administrator.17 Any future
COVID–19-related rated orders or
allocations pursued under these
delegations of authority would occur
within the context of the framework
established by these regulations.
As of April 30, 2020, there were over
1 million confirmed cases of COVID–19
reported in the United States, resulting
in over 60,000 confirmed deaths due to
the disease, with new cases reported
daily.18 Worldwide there have been
www.phe.gov/emergency/news/healthactions/phe/
Pages/2019-nCoV.aspx.
13 ‘‘WHO Director-General’s opening remarks at
the media briefing on COVID–19—11 March 2020,’’
available at https://www.who.int/dg/speeches/
detail/who-director-general-s-opening-remarks-atthe-media-briefing-on-covid-19---11-march-2020.
14 ‘‘Proclamation on Declaring a National
Emergency Concerning the Novel Coronavirus
Disease (COVID–19) Outbreak,’’ March 13, 2020,
available at https://www.whitehouse.gov/
presidential-actions/proclamation-declaringnational-emergency-concerning-novel-coronavirusdisease-covid-19-outbreak/.
15 ‘‘Letter from President Donald J. Trump on
Emergency Determination Under the Stafford Act,’’
March 13, 2020, available at https://
www.whitehouse.gov/briefings-statements/letterpresident-donald-j-trump-emergencydetermination-stafford-act/.
16 Executive Order 13909, 85 FR 16227 (Mar. 23,
2020); Executive Order 13910, 85 FR 17001 (Mar.
26, 2020).
17 DHS Delegation 09052 Rev. 00.1 (Apr. 1, 2020).
18 Information obtained from https://
www.cdc.gov/coronavirus/2019-ncov/casesupdates/cases-in-us.html (accessed April 30, 2020).

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over 3 million confirmed cases,
resulting in over 217,000 deaths.19 At
this time, there is no vaccine that can
prevent infection with COVID–19.
Treatment is mainly limited to
supportive (or palliative) care for
patients who need it. Clinical
management for hospitalized patients
with COVID–19 is focused on
supportive care for complications,
including supplemental oxygen and
advanced organ support for respiratory
failure, septic shock, and multi-organ
failure.20
Within the United States, widespread
transmission of COVID–19 has occurred.
Such transmission has resulted and will
continue to result in large numbers of
people needing medical care at the same
time. Public health and healthcare
systems may become overloaded, with
elevated rates of hospitalizations and
deaths, as well as elevated demand for
health and medical resources.
To summarize, the current situation is
such that FEMA must establish the
relevant regulatory framework without
delay, so as to be able to respond with
dispatch and without unnecessary
confusion regarding the applicable
standards and procedures. The Federal
Government urgently needs to address
issues related to production and
distribution of critical medical supplies,
equipment, and facilities associated
with the response to COVID–19. FEMA
has the lead role in coordinating the
Federal response to COVID–19 and
requires a clear, robust, and enforceable
mechanism for exercising its authority
under section 101 of the DPA and other
applicable authorities. Given the
national emergency caused by COVID–
19, it would be impracticable and
contrary to the public health—and, by
extension, the public interest—to delay
these implementing regulations until a
full public notice-and-comment process
is completed. Pursuant to 5 U.S.C.
553(b)(B), consistent with sections
101(d)(1) of the DPA, and for the
reasons stated above, FEMA therefore
concludes that there is good cause to
dispense with prior public notice and
the opportunity to comment on this rule
before finalizing this rule. For the same
reasons, FEMA has determined,
pursuant to section 553(d) of the APA,
that there is good cause to make this
interim final rule effective immediately
upon publication.
While FEMA believes that there is
good cause to issue the rule without
19 Information obtained from https://
covid19.who.int/ (accessed April 30, 2020).
20 Information obtained from https://
www.cdc.gov/coronavirus/2019-ncov/hcp/clinicalguidance-management-patients.html (accessed
April 30, 2020).

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advance notice and comment and with
an immediate effective date, FEMA is
interested in the views of the public and
requests comment on all aspects of the
interim final rule.
B. Executive Order 12866, Regulatory
Planning and Review, Executive Order
13563, Improving Regulation and
Regulatory Review, and Executive Order
13771, Reducing Regulation and
Controlling Regulatory Costs
Executive Orders 12866 (‘‘Regulatory
Planning and Review’’) and 13563
(‘‘Improving Regulation and Regulatory
Review’’) direct agencies to assess the
costs and benefits of available regulatory
alternatives and, if regulation is
necessary, to select regulatory
approaches that maximize net benefits
(including potential economic,
environmental, public health and safety
effects, distributive impacts, and
equity). Executive Order 13563
emphasizes the importance of
quantifying both costs and benefits, of
reducing costs, of harmonizing rules,
and of promoting flexibility. Executive
Order 13771 (‘‘Reducing Regulation and
Controlling Regulatory Costs’’) directs
agencies to reduce regulation and
control regulatory costs and provides
that ‘‘for every one new regulation
issued, at least two prior regulations be
identified for elimination, and that the
cost of planned regulations be prudently
managed and controlled through a
budgeting process.’’
This interim final rule has been
drafted and reviewed in accordance
with Executive Order 12866. DHS, in
coordination with the Office of
Management and Budget (OMB), has
determined this rule to be an
economically significant regulatory
action as defined in Section 3(f) of the
Executive Order. Although this rule has
been deemed economically significant,
FEMA proceeds without additional
economic analysis under the emergency
provision of section 6(a)(3)(D) of
Executive Order 12866, for the reasons
stated in the APA section above.
C. Regulatory Flexibility Act
The Regulatory Flexibility Act (RFA)
(5 U.S.C. 605(b)) requires an agency to
consider whether the rules it proposes
will have a significant economic impact
on a substantial number of small
entities. The RFA applies only to rules
for which an agency publishes a general
notice of proposed rulemaking pursuant
to 5 U.S.C. 553(b). As discussed
previously, FEMA is not issuing a notice
of proposed rulemaking. Accordingly,
FEMA has concluded that the RFA’s
requirements relating to initial and final

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28509

regulatory flexibility analysis do not
apply.
Nevertheless, FEMA seeks comment
on whether, and the extent to which, the
interim final rule would have a
significant economic impact on a
substantial number of small entities.
D. Unfunded Mandates Reform Act of
1995
FEMA has not issued a notice of
proposed rulemaking for this regulatory
action; therefore, the written statement
provisions of the Unfunded Mandates
Reform Act of 1995, as amended, do not
apply to this regulatory action.
E. Paperwork Reduction Act of 1995
This rule contains information
collections necessary to support FEMA’s
implementation of the President’s
priorities and allocations authority
under Title I of the Defense Production
Act of 1950 (DPA), as amended (50
U.S.C. 4501, et seq.). The purpose of this
authority is to ensure the timely
delivery of products, materials, and
services necessary or appropriate to
promote the national defense.
This new collection was submitted
under OMB’s emergency clearance
procedures. Additionally, FEMA will
seek public comments on the collection
through the normal clearance process.
F. Privacy Act
Under the Privacy Act of 1974, 5
U.S.C. 552a, an agency must determine
whether implementation of a proposed
regulation will result in a system of
records. A ‘‘record’’ is any item,
collection, or grouping of information
about an individual that is maintained
by an agency, including, but not limited
to, his/her education, financial
transactions, medical history, and
criminal or employment history and
that contains his/her name, or the
identifying number, symbol, or other
identifying particular assigned to the
individual, such as a finger or voice
print or a photograph. See 5 U.S.C.
552a(a)(4). A ‘‘system of records’’ is a
group of records under the control of an
agency from which information is
retrieved by the name of the individual
or by some identifying number, symbol,
or other identifying particular assigned
to the individual. An agency cannot
disclose any record which is contained
in a system of records except by
following specific procedures.
In accordance with DHS policy,
FEMA has completed a Privacy
Threshold Analysis (PTA) for this rule.
DHS has determined that this
rulemaking does not affect the 1660–
NW122 OMB Control Number’s
compliance with the E-Government Act

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of 2002 or the Privacy Act of 1974, as
amended. Specifically, DHS has
concluded that the 1660–NW122 OMB
Control Number is covered by the DHS/
ALL/PIA–065 Electronic Contract Filing
System (ECFS) Privacy Impact
Assessment (PIA). Additionally, DHS
has decided that the 1660–NW122 OMB
Control Number is covered by the DHS/
ALL–021 Department of Homeland
Security Contractors and Consultants,
73 FR 63179 (Oct. 23, 2008) System of
Records Notice (SORN).

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G. Executive Order 13175, Consultation
and Coordination With Indian Tribal
Governments
Executive Order 13175, ‘‘Consultation
and Coordination with Indian Tribal
Governments,’’ 65 FR 67249, November
9, 2000, applies to agency regulations
that have Tribal implications, that is,
regulations that have substantial direct
effects on one or more Indian tribes, on
the relationship between the Federal
Government and Indian Tribes, or on
the distribution of power and
responsibilities between the Federal
Government and Indian Tribes. Under
this Executive Order, to the extent
practicable and permitted by law, no
agency shall promulgate any regulation
that has Tribal implications, that
imposes substantial direct compliance
costs on Indian Tribal governments, and
that is not required by statute, unless
funds necessary to pay the direct costs
incurred by the Indian Tribal
government or the Tribe in complying
with the regulation are provided by the
Federal Government, or the agency
consults with Tribal officials.
FEMA has reviewed this interim final
rule under Executive Order 13175 and
has determined that this interim final
rule does not have a substantial direct
effect on one or more Indian tribes, on
the relationship between the Federal
Government and Indian Tribes, or on
the distribution of power and
responsibilities between the Federal
Government and Indian Tribes.
H. Executive Order 13132, Federalism
Executive Order 13132, ‘‘Federalism,’’
64 FR 43255, August 10, 1999, sets forth
principles and criteria that agencies
must adhere to in formulating and
implementing policies that have
federalism implications, that is,
regulations that have ‘‘substantial direct
effects on the States, on the relationship
between the national government and
the States, or on the distribution of
power and responsibilities among the
various levels of government.’’ Federal
agencies must closely examine the
statutory authority supporting any
action that would limit the

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policymaking discretion of the States,
and to the extent practicable, must
consult with State and local officials
before implementing any such action.
FEMA has determined that this
rulemaking does not have a substantial
direct effect on the States, on the
relationship between the national
government and the States, or on the
distribution of power and
responsibilities among the various
levels of government, and therefore does
not have federalism implications as
defined by the Executive Order.
I. National Environmental Policy Act of
1969 (NEPA)
Under the National Environmental
Policy Act of 1969 (NEPA), as amended,
42 U.S.C. 4321 et seq., an agency must
prepare an environmental assessment or
environmental impact statement for any
rulemaking that significantly affects the
quality of the human environment.
FEMA has determined that this
rulemaking does not significantly affect
the quality of the human environment
and consequently has not prepared an
environmental assessment or
environmental impact statement.
Rulemaking is a major Federal action
subject to NEPA. Categorical exclusion
A3 included in the list of exclusion
categories at Department of Homeland
Security Instruction Manual 023–01–
001–01, Revision 01, Implementation of
the National Environmental Policy Act,
Appendix A, issued November 6, 2014,
covers the promulgation of rules,
issuance of rulings or interpretations,
and the development and publication of
policies, orders, directives, notices,
procedures, manuals, and advisory
circulars if they meet certain criteria
provided in A3(a–f). This interim final
rule meets Categorical Exclusion A3(a),
‘‘[t]hose of a strictly administrative or
procedural nature,’’ and A3(b), ‘‘[t]hose
that implement, without substantive
change, statutory or regulatory
requirements.’’
J. Congressional Review of Agency
Rulemaking
Under the Congressional Review of
Agency Rulemaking Act (CRA), 5 U.S.C.
801–808, before a rule can take effect,
the Federal agency promulgating the
rule must: Submit to Congress and to
the Government Accountability Office
(GAO) a copy of the rule; a concise
general statement relating to the rule,
including whether it is a major rule; the
proposed effective date of the rule; a
copy of any cost-benefit analysis;
descriptions of the agency’s actions
under the Regulatory Flexibility Act and
the Unfunded Mandates Reform Act;

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and any other information or statements
required by relevant executive orders.
FEMA has submitted this rule to the
Congress and to GAO pursuant to the
CRA. The Office of Management and
Budget has determined that this rule is
a ‘‘major rule’’ within the meaning of
the CRA. Pursuant to 5 U.S.C. 808(2),
since this rule is promulgated under the
‘‘good cause’’ exemption of the APA,
there is no delay in its effective date
under the CRA.
List of Subjects in 44 CFR Part 333
Administrative practice and
procedure, Business and industry,
Government contracts, National defense,
Reporting and recordkeeping
requirements, Strategic and critical
materials.
■ For the reasons discussed in the
preamble, the Federal Emergency
Management Agency (FEMA) adds part
333 to subchapter F of title 44 of the
Code of Federal Regulations, to read as
follows:
PART 333—EMERGENCY
MANAGEMENT PRIORITIES AND
ALLOCATIONS SYSTEM
Subpart A—Purpose
Sec.
333.1 Purpose of this part.
Subpart B—Overview
333.2 Program Eligibility.
333.3 Priority ratings and rated orders.
333.4–333.7 [Reserved]
Subpart C—Definitions
333.8 Definitions.
Subpart D—Priorities and Placement of
Rated Orders
333.10 Authority.
333.11 Priority ratings.
333.12 Elements of a rated order.
333.13 Acceptance and rejection of rated
orders.
333.14 Preferential scheduling.
333.15 Extension of priority ratings.
333.16 Changes or cancellations of priority
ratings and rated orders.
333.17 Use of rated orders.
333.18 Limitations on placing rated orders.
333.19 Special provisions applicable to
rated orders for third parties.
Subpart E—Special Priorities Assistance
333.20 General provisions.
333.21 Requests for priority rating
authority.
333.22 Examples of assistance.
333.23 Criteria for assistance.
333.24 Instances where assistance will not
be provided.
Subpart F—Allocation Actions
333.30 Policy.
333.31 General procedures.
333.32 Controlling the general distribution
of a material in the civilian market.

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333.33 Types of allocation orders.
333.34 Elements of an allocation order.
333.35 Mandatory acceptance of an
allocation order.
333.36 Changes or cancellations of
allocation orders.
Subpart G [Reserved]
Subpart H—Official Actions
333.50 General provisions.
333.51 Rating authorizations.
333.52 Directives.
333.53 Letters and memoranda of
understanding.
Subpart I—Compliance
333.60
333.61
333.62
333.63
333.64
333.65

General provisions.
Audits and investigations.
Compulsory process.
Notification of failure to comply.
Violations, penalties, and remedies.
Compliance conflicts.

Subpart J—Adjustments, Exceptions, and
Appeals
333.70
333.71

Adjustments or exceptions.
Appeals.

Subpart K—Miscellaneous Provisions
333.80 Protection against claims.
333.81 Records and reports.
333.82 Applicability of this part and official
actions.
333.83 Communications.
333.84 Severability.
Authority: 6 U.S.C. 313, 314; Sections 101
et seq. of the Defense Production Act of 1950,
50 U.S.C. 4511, et seq.; Executive Order
13603, 77 FR 16651 (Mar. 22, 2012);
Executive Order 13909, 85 FR 16227 (Mar.
23, 2020); Executive Order 13911, 85 FR
18403 (Apr. 1, 2020); DHS Delegation 09052,
Rev. 00.1 (Apr. 1, 2020).

Subpart A—Purpose

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§ 333.1

Purpose of this part.

The Federal Emergency Management
Agency (FEMA) refers to this part as the
Emergency Management Priorities and
Allocations System (EMPAS). The
EMPAS implements those priorities and
allocations authorities under the
Defense Production Act that are the
subject of a delegation from the
President to the Secretary of DHS and
re-delegated to the FEMA
Administrator, or to the FEMA
Administrator directly, as described in
§ 333.10 of this part. This includes the
use of authority to support critical
infrastructure restoration and
protection, stockpiling, and emergency
preparedness activities pursuant to Title
VI of the Robert T. Stafford Disaster
Relief and Emergency Assistance Act
(42 U.S.C. 5195 et seq.), and related
statutes, with respect to health and
medical resources needed to respond to
the spread of COVID–19 within the
United States.

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Subpart B—Overview

§§ 333.4–333.7

§ 333.2

Subpart C—Definitions

Program Eligibility.

(a) Certain programs to promote the
national defense are eligible for
priorities and allocations support. These
include programs for military and
energy production or construction,
military or critical infrastructure
assistance to any foreign nation,
deployment and sustainment of military
forces, homeland security, stockpiling,
space, and any directly related activity.
Other eligible programs include
emergency preparedness activities
conducted pursuant to Title VI of the
Robert T. Stafford Disaster Relief and
Emergency Assistance Act (42 U.S.C.
5195 et seq.) and critical infrastructure
protection and restoration. For a current
and complete list reflecting the latest
changes to approved programs, please
visit FEMA’s website at www.FEMA.gov.
(b) FEMA may delegate authority to
place priority ratings on contracts or
orders necessary to promote the national
defense to appropriate officials in
certain Federal Government agencies
that issue such contracts or orders, to
the extent consistent with the delegation
of Presidential authority under which
FEMA is operating. Such delegations
may include authority to authorize
recipients of rated orders to place
ratings on contracts or orders to
contractors, subcontractors, and
suppliers.
§ 333.3

Priority ratings and rated orders.

(a) Rated orders are identified by a
priority rating and a program
identification symbol. Rated orders take
precedence over all unrated orders as
necessary to meet required delivery
dates. Among rated orders, DX rated
orders take precedence over DO rated
orders.
(b) Persons receiving rated orders
must give them preferential treatment as
required by this part.
(c) All rated orders must be scheduled
to the extent possible to ensure delivery
by the required delivery date.
(d) Persons who receive rated orders
must in turn place rated orders with
their suppliers for the items they need
to fill the orders. This provision ensures
that suppliers will give priority
treatment to rated orders from
contractor to subcontractor to suppliers
throughout the procurement chain.
(e) Persons may place a priority rating
on orders only when they are in receipt
of a rated order, have been explicitly
authorized to do so by FEMA or a
Delegate Agency, or are otherwise
permitted to do so by this part.

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§ 333.8

28511

[Reserved]

Definitions.

The definitions in this section apply
throughout this part:
Act or DPA means the Defense
Production Act of 1950, as amended (50
U.S.C. 4501, et seq.).
Administrator means the
Administrator of the Federal Emergency
Management Agency.
Allocation means the control of the
distribution of materials, services or
facilities for a purpose deemed
necessary or appropriate to promote the
national defense.
Allocation order means an official
action to control the distribution of
materials, services, or facilities for a
purpose deemed necessary or
appropriate to promote the national
defense.
Allotment means an official action
that specifies the maximum quantity of
a material, service, or facility authorized
for a specific use to promote the
national defense.
Approved program means a program
determined as necessary or appropriate
for priorities and allocations support to
promote the national defense by the
Secretary of Defense, the Secretary of
Energy, or the Secretary of Homeland
Security, under the authority of the
Defense Production Act and Executive
Order 13603.
Construction means the erection,
addition, extension, or alteration of any
building, structure, or project, using
materials or products which are to be an
integral and permanent part of the
building, structure, or project.
Construction does not include
maintenance and repair.
Critical infrastructure means any
systems and assets, whether physical or
cyber-based, so vital to the United States
that the degradation or destruction of
such systems and assets would have a
debilitating impact on national security,
including, but not limited to, national
economic security and national public
health or safety.
Delegate Agency means a Federal
Government agency authorized by
delegation from FEMA to place priority
ratings on contracts or orders needed to
support approved programs.
Directive means an official action
which requires a person to take or
refrain from taking certain actions in
accordance with its provisions.
Emergency preparedness means all
those activities and measures designed
or undertaken to prepare for or
minimize the effects of a hazard upon
the civilian population, to deal with the

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immediate emergency conditions which
would be created by the hazard, and to
effectuate emergency repairs to, or the
emergency restoration of, vital utilities
and facilities destroyed or damaged by
the hazard. ‘‘Emergency preparedness’’
includes the following:
(1) Measures to be undertaken in
preparation for anticipated hazards
(including the establishment of
appropriate organizations, operational
plans, and supporting agreements, the
recruitment and training of personnel,
the conduct of research, the
procurement and stockpiling of
necessary materials and supplies, the
provision of suitable warning systems,
the construction or preparation of
shelters, shelter areas, and control
centers, and, when appropriate, the
nonmilitary evacuation of the civilian
population).
(2) Measures to be undertaken during
a hazard (including the enforcement of
passive defense regulations prescribed
by duly established military or civil
authorities, the evacuation of personnel
to shelter areas, the control of traffic and
panic, and the control and use of
lighting and civil communications).
(3) Measures to be undertaken
following a hazard (including activities
for firefighting, rescue, emergency
medical, health and sanitation services,
monitoring for specific dangers of
special weapons, unexploded bomb
reconnaissance, essential debris
clearance, emergency welfare measures,
and immediately essential emergency
repair or restoration of damaged vital
facilities).
Facilities includes all types of
buildings, structures, or other
improvements to real property (but
excluding farms, churches or other
places of worship, and private dwelling
houses), and services related to the use
of any such building, structure, or other
improvement.
Hazard means an emergency or
disaster resulting from:
(1) A natural disaster, or
(2) An accidental or man-caused
event.
Health and medical resources means
drugs, biological products, medical
devices, materials, facilities, health
supplies, services, and equipment
required to diagnose, mitigate, prevent
the impairment of, improve, treat, cure,
or restore the physical or mental health
conditions of the population.
Homeland security includes efforts:
(1) To prevent terrorist attacks within
the United States;
(2) To reduce the vulnerability of the
United States to terrorism;
(3) To minimize damage from a
terrorist attack in the United States; and

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(4) To recover from a terrorist attack
in the United States.
Industrial resources means all
materials, services, and facilities,
including construction materials, but
not including: food resources, food
resource facilities, and the domestic
distribution of farm equipment and
commercial fertilizer; all forms of health
resources; all forms of civil
transportation; and water resources.
This term also includes the term ‘‘item’’
as defined and used in this part.
Item means any raw, in process, or
manufactured material, article,
commodity, supply, equipment,
component, accessory, part, assembly,
or product of any kind, technical
information, process, or service.
Maintenance and repair and/or
operating supplies (MRO).
(1) Maintenance is the upkeep
necessary to continue any plant, facility,
or equipment in working condition.
(2) Repair is the restoration of any
plant, facility, or equipment to working
condition when it has been rendered
unsafe or unfit for service by wear and
tear, damage, or failure of parts.
(3) Operating supplies are any items
carried as operating supplies according
to a person’s established accounting
practice. Operating supplies may
include hand tools and expendable
tools, jigs, dies, fixtures used on
production equipment, lubricants,
cleaners, chemicals, and other
expendable items.
(4) MRO does not include items
produced or obtained for sale to other
persons or for installation upon or
attachment to the property of another
person, or items required for the
production of such items; items needed
for the replacement of any plant,
facility, or equipment; or items for the
improvement of any plant, facility, or
equipment by replacing items which are
still in working condition with items of
a new or different kind, quality, or
design.
Materials includes:
(1) Any raw materials (including
minerals, metals, and advanced
processed materials), commodities,
articles, components (including critical
components), products, and items of
supply; and
(2) Any technical information or
services ancillary to the use of any such
materials, commodities, articles,
components, products, or items.
National defense means programs for
military and energy production, or
construction, military or critical
infrastructure assistance to any foreign
nation, homeland security, stockpiling,
space, and any directly related activity.
Such term includes emergency

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preparedness activities conducted
pursuant to Title VI of The Robert T.
Stafford Disaster Relief and Emergency
Assistance Act (42 U.S.C. 5195 et seq.)
and critical infrastructure protection
and restoration.
Official action means an action taken
by FEMA under the authority of the
Defense Production Act, the Robert T.
Stafford Disaster Relief and Emergency
Assistance Act and related statutes, or
this part. Such actions include the
issuance of rating authorizations,
directives, letters and memoranda of
understanding, demands for
information, inspection authorizations,
administrative subpoenas, and
allocation orders.
Person includes any individual,
corporation, partnership, association, or
any other organized group of persons, or
legal successor or representative thereof;
or any State or local government or
agency thereof; and for purposes of
administration of this part, includes the
Federal Government and any authorized
foreign government or international
organization or agency thereof,
delegated authority as provided in this
part.
Priorities authority means the
authority of FEMA, pursuant to Section
101 of the Defense Production Act, to
require acceptance and priority
performance of contracts and orders for
health and medical resource items and
other resources as further delegated by
the President to the Secretary of
Homeland Security or Administrator for
use in approved programs.
Priority rating means an identifying
code assigned by a Delegate Agency,
FEMA, or authorized person placed on
all rated orders and consisting of the
rating symbol and the program
identification symbol.
Production equipment means any
item of capital equipment used in
producing materials or furnishing
services that has a unit acquisition cost
of $2,500 or more, an anticipated service
life in excess of one year, and the
potential for maintaining its integrity as
a capital item.
Program identification symbols means
abbreviations used to indicate which
approved program is supported by a
rated order.
Rated order means a prime contract,
a subcontract, or a purchase order in
support of an approved program issued
in accordance with the provisions of
this part.
Services includes any effort that is
needed for or incidental to:
(1) The development, production,
processing, distribution, delivery, or use
of an industrial resource or a critical
technology item;

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(2) The construction of facilities;
(3) The movement of individuals and
property by all modes of civil
transportation; or
(4) Other national defense programs
and activities.
Set-aside means an official action that
requires a person to reserve materials,
services, or facilities capacity in
anticipation of the receipt of rated
orders.
Written and in writing mean
documented via printing, typewriting,
handwriting, or similar means, whether
in tangible or electronic form.
Written electronic means written and
in electronic form, except that when
electronic form is impracticable under
the circumstances, FEMA may construe
this term to allow for a tangible format.
Subpart D—Priorities and Placement of
Rated Orders

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§ 333.10

Authority.

(a) The priorities and allocations
authorities of the President under Title
I of the Act that have been delegated to
the Secretary of Homeland Security
have been redelegated to the
Administrator. These rules are issued
pursuant to Title I of the Act, and
implementing authorities, including
such authorities as are contained in
subchapter III of chapter 55 of title 50,
United States Code (50 U.S.C. 4554,
4555, 4556, and 4560), which have been
delegated to FEMA.
(b) Delegations by FEMA. FEMA may
authorize Delegate Agencies to assign
priority ratings to orders under these
regulations as authorized.
(c) Jurisdictional limitations. Unless
delegated by the President to DHS or
FEMA, the provisions of this part are
not applicable to the following resource
categories, as defined in Executive
Order 13603, a successor executive
order, or implementing regulations
issued thereunder:
(1) Food resources, food resource
facilities, and the domestic distribution
of farm equipment and commercial
fertilizer (Resource department with
jurisdiction—Department of
Agriculture);
(2) Energy supplies (Resources agency
with jurisdiction—Department of
Energy);
(3) All forms of civil transportation
(Resource department with
jurisdiction—Department of
Transportation);
(4) Health resources (Resource
department with jurisdiction—
Department of Health and Human
Services), except that pursuant to
Executive Order 13911, the provisions
of this part are applicable to health and

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medical resources needed to respond to
the spread of COVID–19;
(5) Water resources (Resource
department with jurisdiction—
Department of Defense); and
(6) All other materials, services, and
facilities, including construction
materials (‘‘industrial resources’’)
(Resource department with
jurisdiction—Department of Commerce).
§ 333.11

Priority ratings.

(a) Levels of priority. (1) There are two
levels of priority established by Federal
Priorities and Allocations System
regulations, identified by the rating
symbols ‘‘DO’’ and ‘‘DX.’’
(2) All DO rated orders have equal
priority with each other and take
preference over unrated orders. All DX
rated orders have equal priority with
each other and take preference over DO
rated orders and unrated orders. (For
resolution of conflicts among rated
orders of equal priority, see § 333.14(c)).
(3) In addition, a Directive issued by
FEMA regarding priority treatment for a
given item takes preference over any DX
rated order, DO rated order, or unrated
order, as stipulated in the Directive. (For
a full discussion of Directives, see
§ 333.52).
(b) Program identification symbols.
Program identification symbols indicate
which approved program is being
supported by a rated order. Program
identification symbols, in themselves,
do not connote any priority.
(c) Priority ratings. A priority rating
consists of the rating symbol—DO or
DX—and the program identification
symbol.
§ 333.12

Elements of a rated order.

(a) Elements required for all rated
orders. (1) The appropriate priority
rating and program identification
symbol;
(2) A required delivery date or dates.
The words ‘‘immediately’’ or ‘‘as soon
as possible’’ do not constitute a delivery
date. When a ‘‘requirements contract,’’
‘‘basic ordering agreement,’’ ‘‘prime
vendor contract,’’ or similar
procurement document bearing a
priority rating contains no specific
delivery date or dates, but provides for
the furnishing of items from time-totime or within a stated period against
specific purchase orders, such as
‘‘calls,’’ ‘‘requisitions,’’ and ‘‘delivery
orders,’’ the purchase orders under such
contracts or agreements must specify a
required delivery date or dates and are
to be considered as rated as of the date
of their receipt by the supplier and not
as of the date of the original
procurement document.

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(3) The written signature on a
manually placed order, or the digital
signature or name on an electronically
placed order, of an individual
authorized to sign rated orders for the
person placing the order. The signature,
manual or digital, certifies that the rated
order is authorized under this part and
that the requirements of this part are
being followed; and
(4) A statement that reads in
substance: ‘‘This is a rated order
certified for national defense use and
you are required to follow all the
provisions of the Emergency
Management Priorities and Allocations
System regulations (44 CFR part 333).’’
(b) Additional element required for
certain emergency preparedness rated
orders. If a rated order is placed for the
purpose of emergency preparedness
requirements and expedited action is
necessary or appropriate to meet these
requirements, the following statement
must be included in the order: ‘‘This
rated order is placed for the purpose of
emergency preparedness. It must be
accepted or rejected pursuant to the
mandatory acceptance and mandatory
rejection requirements found in 44 CFR
333.13 within [Insert a time limit no less
than the minimum applicable time limit
specified in § 333.13(d)(2)].’’
(c) Additional elements required for
rated orders issued by FEMA or a
Delegate Agency to facilitate sales to
third parties. If a rated order is placed
by FEMA or the Delegate Agency to
facilitate a sale to a third party who
desires to order the materials, the
following statement must also be
included in the order: ‘‘This rated order
is placed for the purpose of facilitating
a sale to [Insert third party] to promote
the national defense. It must be
accepted or rejected pursuant to the
mandatory acceptance and mandatory
rejection requirements found in 44 CFR
333.13 within [Insert the applicable
time limit consistent with § 333.13(d)],
and it is subject to the additional
requirements of 44 CFR 333.19. [Third
party] is responsible for satisfying the
applicable terms of sale and payment.
The Federal Government is not be liable
for any failure to meet the terms of sale
or payment. For purposes of these and
any other notification requirements set
forth in FEMA’s Emergency
Management Priorities and Allocations
System regulations (44 CFR part 333),
both [Insert FEMA or Delegate Agency]
and [Insert third party] are the
‘customer.’’’
§ 333.13
orders.

Acceptance and rejection of rated

(a) Mandatory acceptance. (1) Except
as otherwise specified in this section, a

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person must accept every rated order
received and must fill such orders
regardless of any other rated or unrated
orders that have been accepted.
(2) A person must not discriminate
against rated orders in any manner such
as by charging higher prices or by
imposing different terms and conditions
than for comparable unrated orders.
(b) Mandatory rejection. Unless
otherwise directed by FEMA:
(1) A person must not accept a rated
order for delivery on a specific date if
unable to fill the order by that date.
However, the person must inform the
customer of the earliest date on which
delivery can be made and offer to accept
the order on the basis of that date.
Scheduling conflicts with previously
accepted lower rated or unrated orders
are not sufficient reason for rejection
under this section.
(2) A person must not accept a DO
rated order for delivery on a date which
would interfere with delivery of any
previously accepted DO or DX rated
orders. However, the person must offer
to accept the order based on the earliest
delivery date otherwise possible.
(3) A person must not accept a DX
rated order for delivery on a date which
would interfere with delivery of any
previously accepted DX rated orders,
but must offer to accept the order based
on the earliest delivery date otherwise
possible.
(4) If a person is unable to fill all the
rated orders of equal priority status
received on the same day, the person
must accept, based upon the earliest
delivery dates, only those orders which
can be filled, and reject the other orders.
For example, a person must accept order
A requiring delivery on December 15
before accepting order B requiring
delivery on December 31. However, the
person must offer to accept the rejected
orders based on the earliest delivery
dates otherwise possible.
(c) Optional rejection. Unless
otherwise directed by FEMA, rated
orders may be rejected in any of the
following cases as long as a supplier
does not discriminate among customers:
(1) If the person placing the order is
unwilling or unable to meet regularly
established terms of sale or payment;
(2) If the order is for an item not
supplied or for a service not performed;
(3) If the order is for an item
produced, acquired, or provided only
for the supplier’s own use for which no
orders have been filled for two years
prior to the date of receipt of the rated
order. If, however, a supplier has sold
some of these items, the supplier is
obligated to accept rated orders up to
that quantity or portion of production,

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whichever is greater, sold within the
past two years;
(4) If the person placing the rated
order, other than the Federal
Government, makes the item or
performs the service being ordered;
(5) If acceptance of a rated order or
performance against a rated order would
violate any other regulation, official
action, or order of FEMA issued under
the authority of the Defense Production
Act or another relevant statute.
(d) Customer notification
requirements. (1) Except as provided in
paragraph (d)(2) of this section, a person
must accept or reject a rated order in
written electronic format within 15
working days after receipt of a DO rated
order and within 10 working days after
receipt of a DX rated order. If the order
is rejected, the person must give reasons
in written electronic format for the
rejection.
(2) If a rated order is placed for the
purpose of emergency preparedness
requirements and expedited action is
necessary or appropriate to meet these
requirements and the order includes the
statement set forth in § 333.12(b), a
person must accept or reject the rated
order and transmit the acceptance or
rejection in written electronic format
within the time specified in the rated
order. The minimum times for
acceptance or rejection that such orders
may specify are 6 hours after receipt of
the order if the order is issued by an
authorized person in response to a
hazard that has occurred, or 12 hours
after receipt if the order is issued by an
authorized person to prepare for an
imminent hazard.
(3) If a person has accepted a rated
order and subsequently finds that
shipment or performance will be
delayed, the person must notify the
customer immediately, give the reasons
for the delay, and advise of a new
shipment or performance date. If
notification is given verbally, written
electronic confirmation must be
provided within 24 hours of the verbal
notice.
§ 333.14

Preferential scheduling.

(a) A person must schedule
operations, including the acquisition of
all needed production items, in a timely
manner to satisfy the delivery
requirements of each rated order.
Modifying production or delivery
schedules is necessary only when
required delivery dates for rated orders
cannot otherwise be met.
(b) DO rated orders must be given
production preference over unrated
orders, if necessary, to meet required
delivery dates, even if this requires the
diversion of items being processed or

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ready for delivery against unrated
orders. Similarly, DX rated orders must
be given preference over DO rated
orders and unrated orders.
(1) Examples: If a person receives a
DO rated order with a delivery date of
June 3 and if meeting that date would
mean delaying production or delivery of
an item for an unrated order, the
unrated order must be delayed. If a DX
rated order is received calling for
delivery on July 15 and a person has a
DO rated order requiring delivery on
June 2 and operations can be scheduled
to meet both deliveries, there is no need
to alter production schedules to give
any additional preference to the DX
rated order. However, if business
operations cannot be altered to meet
both the June 3 and July 15 delivery
dates, then the DX rated order must be
given priority over the DO rated order.
(2) [Reserved]
(c) Conflicting rated orders. (1) If a
person finds that delivery or
performance against any accepted rated
orders conflicts with the delivery or
performance against other accepted
rated orders of equal priority status, the
person must give preference to the
conflicting orders in the sequence in
which they are to be delivered or
performed (not to the receipt dates). If
the conflicting rated orders are
scheduled to be delivered or performed
on the same day, the person must give
preference to those orders which have
the earliest receipt dates.
(2) If a person is unable to resolve
rated order delivery or performance
conflicts under this section, the person
should promptly seek special priorities
assistance as provided in subpart E of
this part. If the person’s customer
objects to the rescheduling of delivery
or performance of a rated order, the
customer should promptly seek special
priorities assistance as provided in
subpart E of this part. For any rated
order against which delivery or
performance will be delayed, the person
must notify the customer as provided in
§ 333.13(d)(3).
(d) If a person is unable to purchase
needed production items in time to fill
a rated order by its required delivery
date, the person must fill the rated order
by using inventoried production items.
A person who uses inventoried items to
fill a rated order may replace those
items with the use of a rated order as
provided in § 333.17(b).
§ 333.15

Extension of priority ratings.

(a) A person must use rated orders
with suppliers to obtain items needed to
fill a rated order. The person must use
the priority rating indicated on the
customer’s rated order, except as

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otherwise provided in this part or as
directed by FEMA.
(b) The priority rating must be
included on each successive order
placed to obtain items needed to fill a
customer’s rated order. Therefore, the
inclusion of the rating will continue
from contractor to subcontractor to
supplier throughout the entire supply
chain.
(c) A person must use rated orders
with suppliers to obtain items needed to
fill an emergency preparedness rated
order. That person must require
acceptance or rejection, and
transmission of that acceptance or
rejection by the supplier within the time
limit stated in the rated order that is
being filled.

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§ 333.16 Changes or cancellations of
priority ratings and rated orders.

(a) The priority rating on a rated order
may be changed or cancelled by:
(1) An official action of FEMA; or
(2) Written electronic notification
from the person who placed the rated
order (including a Delegate Agency).
(b) If an unrated order is amended so
as to make it a rated order, or a DO
rating is changed to a DX rating, the
supplier must give the appropriate
preferential treatment to the order as of
the date the change is received by the
supplier.
(c) An amendment to a rated order
that significantly alters a supplier’s
original production or delivery schedule
shall constitute a new rated order as of
the date of its receipt. The supplier must
accept or reject the amended order
according to the provisions of § 333.13.
(d) The following amendments do not
constitute a new rated order: A change
in shipping destination; A reduction in
the total amount of the order; an
increase in the total amount of the order
which has negligible impact upon
deliveries; a minor variation in size or
design (prior to the start of production);
or a change which is agreed upon
between the supplier and the customer.
(e) A person must cancel any rated
orders that the person (or a predecessor
in interest) has placed with suppliers or
cancel the priority ratings on those
orders if the person no longer needs the
items in those orders to fill a rated
order.
(f) A person adding a rating to an
unrated order, or changing or cancelling
a priority rating must promptly provide
written electronic notification to all
suppliers to whom the order was sent of
the addition, change, or cancellation.
§ 333.17

Use of rated orders.

(a) A person must use rated orders to
obtain:

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(1) Items which will be physically
incorporated into other items to fill
rated orders, including that portion of
such items normally consumed, or
converted into scrap or by-products, in
the course of processing;
(2) Containers or other packaging
materials required to make delivery of
the finished items against rated orders;
(3) Services, other than contracts of
employment, needed to fill rated orders;
and
(4) MRO needed to produce the
finished items to fill rated orders.
(b) A person may use a rated order to
replace inventoried items (including
finished items) if such items were used
to fill rated orders, as follows:
(1) The order must be placed within
90 days of the date of use of the
inventory.
(2) A DO rating symbol and the
program identification symbol indicated
on the customer’s rated order must be
used on the order. A DX rating symbol
may not be used even if the inventory
was used to fill a DX rated order.
(3) If the priority ratings on rated
orders from one customer or several
customers contain different program
identification symbols, the rated orders
may be combined.
(c) A person may combine DX and DO
rated orders from one customer or
several customers if the items covered
by each level of priority are identified
separately and clearly.
(d) Combining rated and unrated
orders. (1) A person may combine rated
and unrated order quantities on one
purchase order provided that:
(i) The rated quantities are separately
and clearly identified; and
(ii) The elements of a rated order, as
required by § 333.12, are included on
the order with the statement required in
§ 333.12(d) modified to read in
substance: ‘‘This purchase order
contains rated order quantities certified
for national defense use, and you are
required to follow all the provisions of
the Emergency Management Priorities
and Allocations System regulations (44
CFR part 333) as it pertains to the rated
quantities.’’
(2) A supplier must accept or reject
the rated portion of the purchase order
as provided in § 333.13 and give
preferential treatment only to the rated
quantities as required by this part. This
part may not be used to give preferential
treatment to the unrated portion of the
order.
(3) Any supplier who believes that
rated and unrated orders are being
combined in a manner contrary to the
intent of this part or in a fashion that
causes undue or exceptional hardship

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may submit a request for adjustment or
exception under § 333.70.
(e) A person may place a rated order
for the minimum commercially
procurable quantity even if the quantity
needed to fill a rated order is less than
that minimum. However, a person must
combine rated orders as provided in
paragraph (c) of this section, if possible,
to obtain minimum procurable
quantities.
(f) A person is not required to place
a priority rating on an order for less than
one half of the Simplified Acquisition
Threshold (as established in the Federal
Acquisition Regulation (FAR)) (see 48
CFR 2.101) or in other authorized
acquisition regulatory or management
systems, provided that delivery can be
obtained in a timely fashion without the
use of the priority rating.
§ 333.18
orders.

Limitations on placing rated

(a) General limitations on placing
rated orders. A person may not place a
DO or DX rated order pursuant to this
part unless the person is in receipt of a
rated order, has been explicitly
authorized to do so by FEMA or a
Delegate Agency or is otherwise
permitted to do so by this part.
(b) Specific limitations on placing
rated orders. Rated orders may not be
used to obtain:
(1) Delivery on a date earlier than
needed;
(2) A greater quantity of the item than
needed, except to obtain a minimum
procurable quantity. Separate rated
orders may not be placed solely for the
purpose of obtaining minimum
procurable quantities on each order if
the minimum procurable quantity
would be sufficient to cover more than
one rated order;
(3) Items in advance of the receipt of
a rated order, except as specifically
authorized by FEMA (see § 333.21(c) for
information on obtaining authorization
for a priority rating in advance of a rated
order); or
(4) Any of the following items unless
specific priority rating authority has
been obtained from FEMA, a Delegate
Agency, or the Department of
Commerce:
(i) Items for plant improvement,
expansion, or construction, unless they
will be physically incorporated into a
construction project covered by a rated
order; or
(ii) Production or construction
equipment or items to be used for the
manufacture of production equipment
(for information on requesting priority
rating authority, see § 333.21).
(5) Any items related to the
development of chemical or biological

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warfare capabilities or the production of
chemical or biological weapons, unless
such development or production has
been authorized by the President or the
Secretary of Defense.

may be submitted on FEMA Form 009–
0–142 (OMB control number 1660–
NW122) to FEMA. Form 009–0–142 may
be obtained from the Delegate Agency or
from FEMA.

§ 333.19 Special provisions applicable to
rated orders for third parties.

§ 333.21 Requests for priority rating
authority.

(a) The provisions of this part apply
to rated orders placed by FEMA or a
Delegate Agency to facilitate sales to
third parties, regardless of the nature of
their relationship to the Federal
Government, unless otherwise specified.
(b) Where FEMA or a Delegate Agency
has placed a rated order to facilitate a
sale to a third party, the third party is
responsible for satisfying the applicable
terms of sale and payment. The Federal
Government shall not be liable for any
failure to meet the terms of sale or
payment.
(c) If a third party is unable to satisfy
the applicable terms of sale or payment,
FEMA or the Delegate Agency may
amend or cancel the rated order
pursuant to § 333.16 of this part. If
FEMA or the Delegate Agency amend
the rated order to provide that delivery
shall be made to FEMA, the Delegate
Agency, or another third party instead
of the original third party, and the
amendment shall not constitute a new
rated order.

(a) If a rated order is likely to be
delayed because a person is unable to
obtain items not normally rated under
this part, the person may request the
authority to use a priority rating in
ordering the needed items.
(b) Rating authority for production or
construction equipment. (1) A request
for priority rating authority for
production or construction equipment,
if needed, must be submitted to the U.S.
Department of Commerce on Form BIS–
999.
(2) When the use of a priority rating
is authorized for the procurement of
production or construction equipment, a
rated order may be used either to
purchase or to lease such equipment.
However, in the latter case, the
equipment may be leased only from a
person engaged in the business of
leasing such equipment or from a
person willing to lease rather than sell.
(c) Rating authority in advance of a
rated prime contract. (1) In certain
cases, and upon specific request, FEMA,
in order to promote the national
defense, may authorize a person to place
a priority rating on an order to a
supplier in advance of the issuance of
a rated prime contract. In these
instances, the person requesting
advance rating authority must obtain
sponsorship of the request from FEMA
or the appropriate Delegate Agency. The
person shall also assume any business
risk associated with the placing of rated
orders if these orders have to be
cancelled in the event the rated prime
contract is not issued.
(2) The person must state the
following in the request: ‘‘It is
understood that the authorization of a
priority rating in advance of our
receiving a rated prime contract from
FEMA (or a Delegate Agency) and our
use of that priority rating with our
suppliers in no way commits the
Delegate Agency, FEMA, or any other
Federal Government agency to enter
into a contract or order or to expend
funds. Further, we understand that the
Federal Government shall not be liable
for any cancellation charges,
termination costs, or other damages that
may accrue if a rated prime contract is
not eventually placed and, as a result,
we must subsequently cancel orders
placed with the use of the priority rating
authorized as a result of this request.’’

Subpart E—Special Priorities
Assistance

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§ 333.20

General provisions.

(a) EMPAS is designed to be largely
self-executing. However, if production
or delivery problems arise, a person
should immediately contact FEMA (or
the Delegate Agency, as appropriate) for
special priorities assistance pursuant to
§§ 333.20 through 333.24 and as
directed by § 333.83. If FEMA (or the
Delegate Agency, as appropriate) is
unable to resolve the problem or to
authorize the use of a priority rating and
believes additional assistance is
warranted, FEMA (or the Delegate
Agency, as appropriate) may forward
the request to another resource agency,
as appropriate, for action. Special
priorities assistance is a service
provided to alleviate problems.
(b) Special priorities assistance can be
provided for any reason consistent with
this part, such as assisting in obtaining
timely deliveries of items needed to
satisfy rated orders or authorizing the
use of priority ratings on orders to
obtain items not otherwise ratable under
this part. Special priorities assistance
may also be used to request rating
authority for items that are not normally
eligible for priority treatment.
(c) A request for special priorities
assistance or priority rating authority

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(3) In reviewing requests for rating
authority in advance of a rated prime
contract, FEMA will consider, among
other things, the following criteria:
(i) The probability that the prime
contract will be awarded;
(ii) The impact of the resulting rated
orders on suppliers and on other
authorized programs;
(iii) Whether the contractor is the sole
source;
(iv) Whether the item being produced
has a long lead time; and
(v) The time period for which the
rating is being requested.
(4) FEMA may require periodic
reports on the use of the rating authority
granted under paragraph (c) of this
section.
(5) If a rated prime contract is not
issued, the person must promptly notify
all suppliers who have received rated
orders pursuant to the advance rating
authority that the priority rating on
those orders is cancelled.
§ 333.22

Examples of assistance.

(a) While special priorities assistance
may be provided for any reason in
support of this part, it is usually
provided in situations where:
(1) A person is experiencing difficulty
in obtaining delivery against a rated
order by the required delivery date; or
(2) A person cannot locate a supplier
for an item needed to fill a rated order.
(b) Other examples of special
priorities assistance include:
(1) Ensuring that rated orders receive
preferential treatment by suppliers;
(2) Resolving production or delivery
conflicts between various rated orders;
(3) Assisting in placing rated orders
with suppliers;
(4) Verifying the urgency of rated
orders; and
(5) Determining the validity of rated
orders.
§ 333.23

Criteria for assistance.

Requests for special priorities
assistance should be timely, i.e., the
request must be submitted promptly and
in enough time for FEMA or the
Delegate Agency to effect a meaningful
resolution to the problem, and must
establish that:
(a) There is an urgent need for the
item; and
(b) The applicant has made a
reasonable effort to resolve the problem.
§ 333.24 Instances where assistance will
not be provided.

Special priorities assistance is
provided at the discretion of FEMA or
the Delegate Agency when it is
determined that such assistance is
warranted to meet the objectives of this

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part. Examples where assistance may
not be provided include situations when
a person is attempting to:
(a) Secure a price advantage;
(b) Obtain delivery prior to the time
required to fill a rated order;
(c) Gain competitive advantage;
(d) Disrupt an industry apportionment
program in a manner designed to
provide a person with an unwarranted
share of scarce items; or
(e) Overcome a supplier’s regularly
established terms of sale or conditions
of doing business.

(f) A detailed description of the
provisions that will be included in the
allocation orders, including the type(s)
of allocation orders, the percentages or
quantity of capacity or output to be
allocated for each purpose, and the
duration of the allocation action (e.g.,
anticipated start and end dates);
(g) An evaluation of the impact of the
proposed allocation action on the
civilian market; and
(h) Proposed actions, if any, to
mitigate disruptions to civilian market
operations.

Subpart F—Allocation Actions

§ 333.32 Controlling the general
distribution of a material in the civilian
market.

§ 333.30

Policy.

(a) Allocation orders will:
(1) Be used only when there is
insufficient supply of a material,
service, or facility to satisfy national
defense requirements through the use of
the priorities authority or when the use
of the priorities authority would cause
a severe and prolonged disruption in the
supply of materials, services, or
facilities available to support normal
U.S. economic activities; and
(2) Not be used to ration materials or
services at the retail level.
(b) Allocation orders, when used, will
be distributed equitably among the
suppliers of the materials, services, or
facilities being allocated and not require
any person to relinquish a
disproportionate share of the civilian
market.
(c) When a hazard has occurred or is
imminent, an allocation order may be
used without regard to paragraphs (a)
and (b) of this section whenever it is
deemed by the Administrator to be
necessary or appropriate to promote the
national defense.

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§ 333.31

General procedures.

Before FEMA uses its allocations
authority to address a supply problem
within its resource jurisdiction, it will
develop a plan that includes:
(a) A copy of the written
determination that the program or
programs that would be supported by
the allocation action are necessary or
appropriate to promote the national
defense;
(b) A detailed description of the
situation to include any unusual events
or circumstances that have created the
requirement for an allocation action;
(c) A statement of the specific
objective(s) of the allocation action;
(d) A list of the materials, services, or
facilities to be allocated;
(e) A list or description of the sources
of the materials, services, or facilities
that will be subject to the allocation
action;

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No allocation action by FEMA may be
used to control the general distribution
of a material in the civilian market
unless the President, the Administrator,
or another official with lawful authority
under section 101(b) of the Act has
made a written finding that:
(a) Such material is a scarce and
critical material essential to the national
defense, and
(b) The requirements of the national
defense for such material cannot
otherwise be met without creating a
significant dislocation of the normal
distribution of such material in the
civilian market to such a degree as to
create appreciable hardship.
§ 333.33

Types of allocation orders.

There are three types of allocation
orders available for communicating
allocation actions.
(a) Set-aside. A set-aside is an official
action that requires a person to reserve
materials, services, or facilities capacity
in anticipation of the receipt of rated
orders.
(b) Directive. A directive is an official
action that requires a person to take or
refrain from taking certain actions in
accordance with its provisions. For
example, a directive can require a
person to: Stop or reduce production of
an item; prohibit the use of selected
materials, services, or facilities; or divert
the use of materials, services, or
facilities from one purpose to another.
(c) Allotment. An allotment is an
official action that specifies the
maximum quantity of a material,
service, or facility authorized for a
specific use to promote the national
defense.
§ 333.34

Elements of an allocation order.

Allocation orders may be issued
directly to the affected persons or by
constructive notice through publication
in the Federal Register. This section
describes the elements that each order
must include.

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(a) Elements to be included in all
allocation orders.
(1) A detailed description of the
required allocation action(s), including
its relationship to previously or
subsequently received DX rated orders,
DO rated orders, and unrated orders.
(2) Specific start and end calendar
dates for each required allocation
action.
(b) Elements to be included in orders
issued directly to affected persons.
(1) A statement that reads in
substance: ‘‘This is an allocation order
certified for national defense use. [Insert
the name of the person receiving the
order] is required to comply with this
order, in accordance with the provisions
of the Emergency Management Priorities
and Allocations System regulations (44
CFR part 333), which is part of the
Federal Priorities and Allocations
System.’’
(2) The written signature on a
manually placed order, or the digital
signature or name on an electronically
placed order, of the FEMA
Administrator.
(c) Elements to be included in an
allocation order that gives constructive
notice through publication in the
Federal Register (1) A statement that
reads in substance: ‘‘This is an
allocation order certified for national
defense use. [Insert the name(s) of the
person(s) to whom the order applies or
a description of the class of persons to
whom the order applies] is (are)
required to comply with this order, in
accordance with the provisions of the
Emergency Management Priorities and
Allocations System regulations (44 CFR
part 333), which is part of the Federal
Priorities and Allocations System.’’
(2) The order must be signed by the
FEMA Administrator.
§ 333.35 Mandatory acceptance of an
allocation order.

(a) Except as otherwise specified in
this section, a person must accept and
comply with every allocation order
received.
(b) A person must not discriminate
against an allocation order in any
manner such as by charging higher
prices for materials, services, or
facilities covered by the order or by
imposing terms and conditions for
contracts and orders involving allocated
materials, services, or facilities that
differ from the person’s terms and
conditions for contracts and orders for
the materials, services, or facilities prior
to receiving the allocation order.
(c) If a person is unable to comply
fully with the required action(s)
specified in an allocation order, the
person must notify FEMA immediately,

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explain the extent to which compliance
is possible, and give the reasons why
full compliance is not possible. If
notification is given verbally, written,
electronic confirmation must be
provided within 24 hours. Such
notification does not release the person
from complying with the order to the
fullest extent possible, until the person
is notified by FEMA that the order has
been changed or cancelled.
§ 333.36 Changes or cancellations of
allocation orders.

An allocation order may be changed
or cancelled by an official action from
FEMA. Notice of such changes or
cancellations may be provided directly
to persons to whom the order being
cancelled or modified applies or
constructive notice may be provided by
publication in the Federal Register.
Subpart G—[Reserved]
Subpart H—Official Actions
§ 333.50

General provisions.

(a) FEMA may, from time-to-time,
take specific official actions to
implement or enforce the provisions of
this part.
(b) Some of these official actions
(rating authorizations and letters and
memoranda of understanding) are
discussed in this subpart. Official
actions that pertain to compliance
(administrative subpoenas, demands for
information, and inspection
authorizations) are discussed in
§ 333.61(c). Directives are discussed in
§ 333.52.
§ 333.51

Rating authorizations.

(a) A rating authorization is an official
action granting specific priority rating
authority that:
(1) Permits a person to place a priority
rating on an order for an item not
normally ratable under this part; or
(2) Authorizes a person to modify a
priority rating on a specific order or
series of contracts or orders.
(b) To request priority rating
authority, see § 333.21.

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§ 333.52

Directives.

(a) A directive is an official action
which requires a person to take or
refrain from taking certain actions in
accordance with its provisions.
(b) A person must comply with each
directive issued. However, a person may
not use or extend a directive to obtain
any items from a supplier, unless
expressly authorized to do so in the
directive.
(c) A priorities directive takes
precedence over all DX-rated orders,
DO-rated orders, and unrated orders

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previously or subsequently received,
unless a contrary instruction appears in
the directive.
(d) An allocations directive takes
precedence over all priorities directives,
DX-rated orders, DO-rated orders, and
unrated orders previously or
subsequently received, unless a contrary
instruction appears in the directive.
§ 333.53 Letters and memoranda of
understanding.

(a) A letter or memorandum of
understanding is an official action,
which may be issued electronically, to
resolve special priorities assistance
cases to reflect an agreement reached by
all parties (FEMA, the Department of
Commerce (if applicable), a Delegate
Agency (if applicable), the supplier, and
the customer).
(b) A letter or memorandum of
understanding is not used to alter
scheduling between rated orders, to
authorize the use of priority ratings, to
impose restrictions under this part, or to
take other official actions. Rather, letters
or memoranda of understanding are
used to confirm production or shipping
schedules which do not require
modifications to other rated orders.
Subpart I—Compliance
§ 333.60

General provisions.

(a) Compliance actions may be taken
for any reason necessary or appropriate
to the enforcement or the administration
of the Defense Production Act and
related statutes, this part, or an official
action. Compliance actions include
audits, investigations, or other inquiries
and FEMA may utilize other official
actions, such as administrative
subpoenas, demands for information,
and inspection authorizations as part of
the compliance actions under this part.
(b) Any person who places or receives
a rated order or an allocation order must
comply with the provisions of this part.
(c) Willful violation of any of the
provisions of Title I or section 705 of the
Defense Production Act and other
applicable statutes, this part, or an
official action of FEMA, is a criminal
act, punishable as provided in the
Defense Production Act and other
applicable statutes, and as set forth in
§ 333.64 of this part.
§ 333.61

Audits and investigations.

(a) Audits and investigations are
official actions involving the
examination of books, records,
documents, other writings and
information to ensure that the
provisions of the Defense Production
Act and other applicable statutes, this
part, and official actions have been
properly followed. An audit or

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investigation may also include
interviews and a systems evaluation to
detect problems or failures in the
implementation of this part.
(b) When undertaking an audit,
investigation, or other inquiry, FEMA
must:
(1) Define the scope and purpose in
the official action given to the person
under investigation, and
(2) Have ascertained that the
information sought, or other adequate
and authoritative data are not available
from any Federal or other responsible
agency.
(c) In administering this part, FEMA
may issue the following documents,
which constitute official actions:
(1) Administrative subpoenas. An
administrative subpoena requires a
person to appear as a witness before an
official designated by FEMA to testify
under oath on matters of which that
person has knowledge relating to the
enforcement or the administration of the
Defense Production Act and other
applicable statutes, this part, or official
actions. An administrative subpoena
may also require the production of
books, papers, records, documents and
physical objects or property.
(2) Demand for information. A
demand for information requires a
person to furnish to a duly authorized
representative of FEMA any information
necessary or appropriate to the
enforcement or the administration of the
Defense Production Act and other
applicable statutes, this part, or official
actions.
(3) Inspection authorizations. An
inspection authorization requires a
person to permit a duly authorized
representative of FEMA to interview the
person’s employees or agents; to inspect
books, records, documents, other
writings and information, including
electronically-stored information, in the
person’s possession or control at the
place where that person usually keeps
them or otherwise; and to inspect a
person’s property when such interviews
and inspections are necessary or
appropriate to the enforcement or the
administration of the Defense
Production Act and related statutes, this
part, or official actions.
(d) The production of books, records,
documents, other writings and
information will not be required at any
place other than where they are usually
kept if, prior to the return date specified
in the administrative subpoena or
demand for information, a duly
authorized official of FEMA is furnished
with copies of such material that are
certified under oath to be true copies.
As an alternative, a person may enter
into a stipulation with a duly authorized

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official of FEMA as to the content of the
material.
(e) An administrative subpoena,
demand for information, or inspection
authorization must include the name,
title, or official position of the person to
be served, the evidence sought to be
adduced, and its general relevance to
the scope and purpose of the audit,
investigation, or other inquiry. If
employees or agents are to be
interviewed; if books, records,
documents, other writings, or
information are to be produced; or if
property is to be inspected; the
administrative subpoena, demand for
information, or inspection authorization
will describe them with particularity.
(f) Service of documents must be
made in the following manner:
(1) Service of a demand for
information or inspection authorization
must be made personally, or by certified
mail—return receipt requested at the
person’s last known address. Service of
an administrative subpoena must be
made personally. Personal service may
also be made by leaving a copy of the
document with someone at least 18
years of age at the person’s last known
dwelling or place of business. When a
hazard has occurred or is imminent,
service of a demand for information or
inspection authorization may
additionally be made by written
electronic communication.
(2) Service upon other than an
individual may be made by serving a
partner, corporate officer, or a managing
or general agent authorized by
appointment or by law to accept service
of process. If an agent is served, a copy
of the document must be mailed to the
person named in the document.
(3) Any individual 18 years of age or
older may serve an administrative
subpoena, demand for information, or
inspection authorization. When
personal service is made, the individual
making the service shall prepare an
affidavit as to the manner in which
service was made and the identity of the
person served, and return the affidavit,
and in the case of subpoenas, the
original document, to the issuing officer.
In case of failure to make service, the
reasons for the failure must be stated on
the original document.

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§ 333.62

Compulsory process.

(a) If a person refuses to permit a duly
authorized representative of FEMA to
have access to any premises or source of
information necessary to the
administration or enforcement of the
Defense Production Act and other
applicable statutes, this part, or official
actions, FEMA may seek compulsory
process. Compulsory process means the

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institution of appropriate legal action,
including ex parte application for an
inspection warrant or its equivalent, in
any forum of appropriate jurisdiction.
(b) Compulsory process may be
sought in advance of an audit,
investigation, or other inquiry, if, in the
judgment of the Administrator, in
consultation with the FEMA Chief
Counsel, there is reason to believe that
a person will refuse to permit an audit,
investigation, or other inquiry, or that
other circumstances exist which make
such process desirable or necessary.
§ 333.63

Notification of failure to comply.

(a) At the conclusion of an audit,
investigation, or other inquiry, or at any
other time, FEMA may inform the
person in writing where compliance
with the requirements of the Defense
Production Act and other applicable
statutes, this part, or an official action
were not met.
(b) In cases where FEMA determines
that a person, either willingly or
inadvertently, has failed to comply with
the provisions of the Defense
Production Act and other applicable
statutes, this part, or an official action,
the person may be informed in writing
of the particulars involved and the
corrective action to be taken. Failure to
take corrective action may then be
construed as a willful violation of the
Defense Production Act and other
applicable statutes, this part, or an
official action.
§ 333.64 Violations, penalties, and
remedies.

(a) Willful violation of the provisions
of Title I or Sections 705 or 707 of the
Defense Production Act, this part, or an
official action, is a crime and upon
conviction, a person may be punished
by fine or imprisonment, or both. The
maximum penalty provided by the
Defense Production Act is a $10,000
fine, or one year in prison, or both.
(b) The government may also seek an
injunction from a court of appropriate
jurisdiction to prohibit the continuance
of any violation of, or to enforce
compliance with, the Defense
Production Act and other applicable
statutes, this part, or an official action.
(c) In order to secure the effective
enforcement of the Defense Production
Act and other applicable statutes, this
part, and official actions, the following
are prohibited (see section 705 of the
Defense Production Act; see also, for
example, sections 2 and 371 of Title 18
United States Code):
(1) No person may solicit, influence,
or permit another person to perform any
act prohibited by, or to omit any act
required by, the Defense Production Act

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and other applicable statutes, this part,
or an official action.
(2) No person may conspire or act in
concert with any other person to
perform any act prohibited by, or to
omit any act required by, the Defense
Production Act and other applicable
statutes, this part, or an official action.
(3) No person shall deliver any item
if the person knows or has reason to
believe that the item will be accepted,
redelivered, held, or used in violation of
the Defense Production Act and other
applicable statutes, this part, or an
official action. In such instances, the
person must immediately notify FEMA
that, in accordance with this section,
delivery has not been made.
§ 333.65

Compliance conflicts.

If compliance with any provision of
the Defense Production Act and other
applicable statutes, this part, or an
official action would prevent a person
from filling a rated order or from
complying with another provision of the
Defense Production Act, this part, or an
official action, the person must
immediately notify FEMA for resolution
of the conflict.
Subpart J—Adjustments, Exceptions,
and Appeals
§ 333.70

Adjustments or exceptions.

(a) A person may submit a request to
FEMA for an adjustment or exception
on the ground that:
(1) A provision of this part or an
official action results in an undue or
exceptional hardship on that person not
suffered generally by others in similar
situations and circumstances; or
(2) The consequence of following a
provision of this part or an official
action is contrary to the intent of the
Defense Production Act, other
applicable statutes, or this part.
(b) Each request for adjustment or
exception must be in writing and
contain a complete statement of all the
facts and circumstances related to the
provision of this part or official action
from which adjustment is sought and a
full and precise statement of the reasons
why relief should be provided.
(c) The submission of a request for
adjustment or exception shall not
relieve any person from the obligation of
complying with the provisions of this
part or official action in question while
the request is being considered unless
such interim relief is granted in writing
by FEMA.
(d) A decision of FEMA under this
section may be appealed to the
Administrator. (For information on the
appeal procedure, see § 333.71.)

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Appeals.

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(a) Any person who has had a request
for adjustment or exception denied by
FEMA under § 333.70 may appeal to the
Administrator, who shall review and
reconsider the denial. Such appeals
should be submitted to the Office of
Policy and Programs at FEMA-DPA@
fema.dhs.gov, Ref: EMPAS Appeals.
(b)(1) Appeals of denied requests for
exceptions from or adjustments to
compliance with the provisions of this
part or an official action must be
received by FEMA no later than 45 days
after receipt of a written notice of denial
from FEMA. After this 45-day period, an
appeal may be accepted at the discretion
of the Administrator.
(2) For requests for adjustment or
exception involving rated orders placed
for the purpose of emergency
preparedness in response to a hazard
that has occurred or is imminent, an
appeal must be received by FEMA no
later than 15 days after receipt of a
written notice of denial.
(c) Each appeal must be in writing
and contain a complete statement of all
the facts and circumstances related to
the action appealed from and a full and
precise statement of the reasons the
decision should be modified or
reversed.
(d) In addition to the written materials
submitted in support of an appeal, an
appellant may request, in writing, an
opportunity for an informal hearing.
This request may be granted or denied
at the discretion of the Administrator.
(e) When a hearing is granted, the
Administrator may designate an
employee of FEMA to conduct the
hearing and to prepare a report. The
hearing officer shall determine all
procedural questions and impose such
time or other limitations deemed
reasonable. In the event that the hearing
officer decides that a printed transcript
is necessary, all expenses shall be borne
by the appellant.
(f) When determining an appeal, the
Administrator may consider all
information submitted during the
appeal as well as any recommendations,
reports, or other relevant information
and documents available to FEMA, or
consult with any other persons or
groups.
(g) The submission of an appeal under
this section shall not relieve any person
from the obligation of complying with

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the provisions of this part or official
action in question while the appeal is
being considered, unless such relief is
granted in writing by the Administrator.
(h) The decision of the Administrator
shall be made within a reasonable time
after receipt of the appeal and shall be
the final administrative action. It shall
be issued to the appellant in writing
with a statement of the reasons for the
decision.
Subpart K—Miscellaneous Provisions
§ 333.80

Protection against claims.

A person shall not be held liable for
damages or penalties for any act or
failure to act resulting directly or
indirectly from compliance with any
provision of this part, or an official
action, notwithstanding that such
provision or action shall subsequently
be declared invalid by judicial or other
competent authority.
§ 333.81

Records and reports.

(a) Persons are required to make and
preserve for at least three years, accurate
and complete records of any transaction
covered by this part or an official action.
(b) Records must be maintained in
sufficient detail to permit the
determination, upon examination, of
whether each transaction complies with
the provisions of this part or any official
action. However, this part does not
specify any particular method or system
to be used.
(c) Records required to be maintained
by this part must be made available for
examination on demand by duly
authorized representatives of FEMA as
provided in § 333.61.
(d) In addition, persons must develop,
maintain, and submit any other records
and reports to FEMA that may be
required for the administration of the
Defense Production Act and other
applicable statutes, and this part.
(e) Under section 705(d) of the Act
and the ultimate delegation of that
authority to the FEMA Administrator,
information obtained under section 705
of the Act which the Administrator
deems confidential, or with reference to
which a request for confidential
treatment is made by the person
furnishing such information, shall not
be published or disclosed unless the
Administrator determines that the
withholding of this information is
contrary to the interest of the national

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defense. Information required to be
submitted to FEMA in connection with
the enforcement or administration of the
Act, this part, or an official action, is
deemed to be confidential under section
705(d) of the Act and shall not be
published or disclosed except as
required by applicable Federal law.
§ 333.82 Applicability of this part and
official actions.

(a) This part and all official actions,
unless specifically stated otherwise,
apply to transactions in any state,
territory, or possession of the United
States and the District of Columbia.
(b) This part and all official actions
apply not only to deliveries to other
persons but also include deliveries to
affiliates and subsidiaries of a person
and deliveries from one branch,
division, or section of a single entity to
another branch, division, or section
under common ownership or control.
(c) This part shall not be construed to
affect any administrative actions taken
by FEMA, or any outstanding contracts
or orders placed pursuant to any of the
regulations, orders, schedules, or
delegations of authority issued by
FEMA prior to May 13, 2020. Such
actions, contracts, or orders shall
continue in full force and effect under
this part unless modified or terminated
by proper authority.
§ 333.83

Communications.

General communications concerning
this part, including how to obtain copies
of this part and explanatory
information, requests for guidance or
clarification, may be addressed to
FEMA’s Office of Policy and Program
Analysis at FEMA-DPA@fema.dhs.gov.
§ 333.84

Severability.

FEMA intends the various provisions
of this part to be severable from each
other to the extent practicable, such that
if a court of competent jurisdiction were
to vacate or enjoin any one provision,
the other provisions are intended to
remain in effect unless they are
dependent upon the vacated or enjoined
provision.
Pete Gaynor,
Administrator, Federal Emergency
Management Agency.
[FR Doc. 2020–10294 Filed 5–11–20; 4:15 pm]
BILLING CODE 9111–19–P

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