[Federal Register Volume 85, Number 93 (Wednesday, May 13, 2020)]
[Rules and Regulations]
[Pages 28500-28520]
[FR Doc No: 2020-10294]

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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)

AGENCY: Federal Emergency Management Agency, DHS.

ACTION: Interim final rule.

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SUMMARY: 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-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,<PHONE_NUMBER><EMAIL_ADDRESS>
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, 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 e-
Rulemaking 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

President's ``priorities'' and ``allocations'' authorities.
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    \1\ 50 U.S.C. 4511(a)(1).
    \2\ 50 U.S.C. 4511(a)(1).
    \3\ 50 U.S.C. 4511(a)(2).
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    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\
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    \4\ 50 U.S.C. 4555.
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    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 re-delegated 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.
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    \5\ DHS Delegation 09052 Rev. 00.1, ``Delegation of Defense
Production Act Authority to the Administrator of the Federal
Emergency Management Agency'' (Apr. 1, 2020).
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    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 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\
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    \6\ See 50 U.S.C. 4552(14).
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    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.
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    \7\ See Executive Order 13603, ``National Defense Resources
Preparedness,'' section 201, 77 FR 16651 (Mar. 22, 2012).
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    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 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.
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    \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/1484838423965-e82805cf10b55929142fab1fced213d8/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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    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

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.

B. Subpart B--Overview

1. Section 333.2 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 Priority Ratings and Rated Orders
    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.

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, 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.

D. Subpart D--Priorities and Placement of Rated Orders

1. Section 333.10 Authority
    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.
2. Section 333.11 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.
3. Section 333.12 Elements of Rated Order
    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.

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.
5. Section 333.14 Preferential Scheduling
    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 Extension of Priority Ratings
    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
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\
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    \9\ See, e.g., 84 FR 52420 (Oct. 2, 2019) (proposed increase to
micro-purchase and simplified acquisition thresholds).
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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.

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.

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 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

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 Criteria for Assistance
    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.

F. Subpart F--Allocation Actions

    Generally, the standards set forth in Sections[thinsp]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, modification, and cancellation of allocation orders.
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 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.
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.
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    \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.
---------------------------------------------------------------------------

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

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 actual allocation orders will have to be tailored to meet
unforeseeable circumstances.
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-working-day 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.
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
pertaining to compliance are discussed in section 333.61, which is in
Subpart I.
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.
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

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, 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
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

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.
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 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, multi-organ 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, 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\
---------------------------------------------------------------------------

    \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-of-the-international-health-regulations-(2005)-
emergency-committee-regarding-the-outbreak-of-novel-coronavirus-
(2019-ncov).
    \12\ HHS, ``Determination that a Public Health Emergency
Exists,'' available at https://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-at-the-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-declaring-national-emergency-concerning-novel-coronavirus-disease-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/letter-president-donald-j-trump-emergency-determination-stafford-act/.
---------------------------------------------------------------------------

    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.
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    \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).
---------------------------------------------------------------------------

    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

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\
---------------------------------------------------------------------------

    \18\ Information obtained from https://www.cdc.gov/coronavirus/2019-ncov/cases-updates/cases-in-us.html (accessed April 30, 2020).
    \19\ Information obtained from https://covid19.who.int/
(accessed April 30, 2020).
    \20\ Information obtained from https://www.cdc.gov/coronavirus/2019-ncov/hcp/clinical-guidance-management-patients.html (accessed
April 30, 2020).
---------------------------------------------------------------------------

    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 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 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

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).

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 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; 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.

0
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.

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 General provisions.
333.61 Audits and investigations.
333.62 Compulsory process.
333.63 Notification of failure to comply.
333.64 Violations, penalties, and remedies.
333.65 Compliance conflicts.
Subpart J--Adjustments, Exceptions, and Appeals
333.70 Adjustments or exceptions.
333.71 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

Sec.  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
Sec.  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.

Subpart B--Overview

Sec.  333.2  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.

Sec.  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.

Sec. Sec.  333.4-333.7  [Reserved]

Subpart C--Definitions

Sec.  333.8  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

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
    (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 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;

    (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

Sec.  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 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).

Sec.  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 Sec.  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 Sec.  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.

Sec.  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-to-time 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.
    (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 Sec.  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 Sec.  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.'''

Sec.  333.13  Acceptance and rejection of rated orders.

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

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, 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 Sec.  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.

Sec.  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 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 Sec.
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 Sec.
333.17(b).

Sec.  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

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.

Sec.  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 Sec.
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.

Sec.  333.17  Use of rated orders.

    (a) A person must use rated orders to obtain:
    (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 Sec.  333.12,
are included on the order with the statement required in Sec.
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 Sec.  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 may submit a request
for adjustment or exception under Sec.  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.

Sec.  333.18  Limitations on placing rated orders.

    (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 Sec.  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 Sec.  333.21).
    (5) Any items related to the development of chemical or biological

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.

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

    (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 Sec.  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.

Subpart E--Special Priorities Assistance

Sec.  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 Sec. Sec.  333.20 through 333.24 and
as directed by Sec.  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 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.

Sec.  333.21  Requests for priority rating authority.

    (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.''
    (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.

Sec.  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.

Sec.  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.

Sec.  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

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.

Subpart F--Allocation Actions

Sec.  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.

Sec.  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;
    (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.

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

    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.

Sec.  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.

Sec.  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.
    (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