Rated Orders, Adjustments, Exceptions, or Appeals Under the Emergency Management Priorities and Allocations System (EMPAS)

The purpose of this authority is to ensure the timely delivery of products, materials, and services to meet current national defense requirements. The definition of “national defense” in Section 702(14) of the DPA provides that this term includes “homeland security,” “emergency preparedness activities” conducted pursuant to Section 602 of the Robert T. Stafford Disaster Relief and Emergency Assistance Act (Stafford Act) (42 U.S.C. 5195a), and “critical infrastructure protection and restoration.” 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 and prevent hoarding of such resources to respond to the spread of COVID-19. Pursuant to Executive Order 13911, the President has also delegated to the Secretary of Homeland Security the authority conferred by section 101 of the DPA and 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 in DHS Delegation 09052 Rev. 00.1 (Apr. 1, 2020). Because of the substantial risk to life, safety, or health of individuals due to the shortage in emergency medical products, materials, and equipment supporting distribution infrastructure, and other life- sustaining products, materials, and equipment related to COVID-19 treatment, FEMA requests an emergency approval to collect the necessary information from contractors when placing rated orders with suppliers, to obtain timely delivery of products, materials, equipment, or services from suppliers, or for any other reason under the EMPAS, in support of approved national programs. To help ensure the timely delivery of goods and services in support of approved emergency management programs, section 333.13 of the EMPAS regulation requires suppliers to accept or reject priority rated orders for these goods and services which are placed with them by their customers within established time periods (10 working days for a “DX” rated order and 15 working days for a “DO” rated order). Section 333.13 also requires that certain emergency preparedness rated orders must be accepted or rejected within shorter time periods as specified in section 333.12(b). Section 333.13(d)(3) of the EMPAS regulation requires that, if after acceptance of a rated order the supplier discovers that shipment or performance against the order will be delayed, the supplier must notify the customer immediately in written electronic format, giving the reasons for the delay, and advising the customer of a new shipment or performance date. This collection of information involves order communications between a Federal Government prime contractor and its subcontractors. Finally, under section 333.70 each request for adjustment or exception must be in writing and contain a complete statement of all the facts and circumstances related to 44 CFR part 333 or official action from which adjustment is sought and a full and precise statement of the reasons why relief should be provided. Under section 333.71, any person who has had a request for adjustment or exception denied by FEMA under section 333.70 may appeal to the Administrator. Each appeal must be in writing and contain a complete statement of all the facts and circumstances related to the action appealed from a full and precise statement of the reasons the decision should be modified or reversed. Regarding customer notification of the acceptance of rated orders, the rejection of rated orders, and the delay of rated orders, the Federal Government does not typically receive information under this collection unless FEMA is facilitating a sale to a third party.

The latest form for Rated Orders, Adjustments, Exceptions, or Appeals Under the Emergency Management Priorities and Allocations System (EMPAS) expires 2021-04-30 and can be found here.