Federal Register / Vol. 76, No. 31 / Tuesday, February 15, 2011 / Proposed Rules 8675 

phone (202) 564–1629 or by sending an 

e-mail to smith.lameka@epa.gov. For 

additional information about the Lead 

and Copper Rule, please visit: http:// 

water.epa.gov/lawsregs/rulesregs/sdwa/ 

lcr/index.cfm. For additional 

information about the drinking water 

contaminant candidate list and the 

regulatory determinations process, 

please visit: http://water.epa.gov/ 

scitech/drinkingwater/dws/ccl/ 

index.cfm. For additional information 

about perchlorate, please visit: http:// 

water.epa.gov/drink/contaminants/ 

unregulated/perchlorate.cfm. 

For additional information about 

carcinogenic VOCs, please visit the 

Drinking Water Strategy homepage: 

http://water.epa.gov/lawsregs/rulesregs/ 

sdwa/dwstrategy/index.cfm. 

SUPPLEMENTARY INFORMATION: 

Registration: Individuals planning to 

attend in person or by teleconference 

must register for the meeting by 

contacting Junie Percy, of IntelliTech at 

(937) 427–4148 ext. 210 or by sending 

an e-mail to 

junie.percy@itsysteminc.com no later 

than Friday, February 28, 2011. 

Additional information pertaining to the 

meeting will be provided upon 

confirmation of registration. There is no 

charge for attending this public meeting, 

but seats and phone lines are limited, so 

register as soon as possible. 

Special Accommodations: For 

information on access or request for 

special accommodations for individuals 

with disabilities, please contact Lameka 

Smith, Office of Ground Water and 

Drinking Water, U.S. Environmental 

Protection Agency; by telephone (202) 

564–1629 or by sending an e-mail to 

smith.lameka@epa.gov. Please allow at 

least five business days prior to the 

meeting to allow time to process your 

request. 

Dated: February 10, 2011. 

Cynthia C. Dougherty, 

Director, Office of Ground Water and Drinking 

Water. 

[FR Doc. 2011–3383 Filed 2–14–11; 8:45 am] 

BILLING CODE 6560–50–P 

DEPARTMENT OF TRANSPORTATION 

Office of the Secretary 

49 CFR Part 33 

[Docket No. OST 2010–0298] 

RIN 2105–AD83 

Prioritization and Allocation Authority 

Exercised by the Secretary of 

Transportation Under the Defense 

Production Act 

AGENCY: Office of the Secretary of 

Transportation (OST), DOT. 

ACTION: Notice of proposed rulemaking 

(NPRM). 

SUMMARY: The Department of 

Transportation’s Office of the Secretary 

(OST) is initiating this proposed 

rulemaking to clarify the priorities and 

allocation authorities exercised by the 

Secretary of Transportation (Secretary) 

under title 1 of the Defense Production 

Act of 1950 (Defense Production Act), 

and to set forth the administrative 

procedures by which the Secretary will 

exercise this authority. This proposed 

rule complies with the requirement in 

the Defense Production Act 

Reauthorization of 2009 (Pub. L. 111– 

67) to issue final rules establishing 

standards and procedures by which the 

priorities and allocations authority is 

used to promote the national defense, 

under both emergency and 

nonemergency conditions, and is part of 

a multi-agency effort that forms the 

Federal Priorities and Allocations 

System. 

DATES: Comment Closing Date: 

Comments must be received by March 

17, 2011. 

ADDRESSES: You may submit comments 

(identified by the agency name and DOT 

Docket ID Number OST–2010–0298) by 

any of the following methods: 

• Federal eRulemaking Portal: Go to 

http://www.regulations.gov and follow 

the online instructions for submitting 

comments. 

• Mail: Docket Management Facility: 

U.S. Department of Transportation, 1200 

New Jersey Avenue, SE., West Building 

Ground Floor, Room W12–140, 

Washington, DC 20590–0001. 

• Hand Delivery or Courier: West 

Building Ground Floor, Room W12–140, 

1200 New Jersey Avenue, SE., between 

9 a.m. and 5 p.m. ET, Monday through 

Friday, except Federal holidays. 

• Fax: 202–493–2251. 

Instructions: You must include the 

agency name (Office of the Secretary, 

DOT) and Docket number (OST–2010– 

0298) for this notice at the beginning of 

your comments. You should submit two 

copies of your comments if you submit 

them by mail or courier. Note that all 

comments received will be posted 

without change to http:// 

www.regulations.gov including any 

personal information provided and will 

be available to internet users. You may 

review DOT’s complete Privacy Act 

Statement in the Federal Register 

published on April 11, 2000 (65 FR 

19477) or you may visit http:// 

DocketsInfo.dot.gov. 

Docket: For Internet access to the 

docket to read background documents 

and comments received, go to http:// 

www.regulations.gov. Background 

documents and comments received may 

also be viewed at the U.S. Department 

of Transportation, 1200 New Jersey 

Ave., SE., Docket Operations, M–30, 

West Building Ground Floor, Room 

W12–140, Washington, DC 20590, 

between 9 a.m. and 5 p.m., Monday 

through Friday, except Federal holidays. 

FOR FURTHER INFORMATION CONTACT: 

Donna L. O’Berry, Office of the General 

Counsel, Department of Transportation, 

1200 New Jersey Avenue, SE., Room 

W96–317, Washington, DC 20590; 

telephone: (202) 366–6136; e-mail: 

donna.o’berry@dot.gov; or Lloyd E. 

Milburn, Office of Intelligence, Security 

and Emergency Response, Department 

of Transportation, 1200 New Jersey 

Avenue, SE., Washington, DC 20590; 

telephone: (202) 366–4397; e-mail: 

lloyd.milburn@dot.gov. 

SUPPLEMENTARY INFORMATION: 

I. Background 

The Defense Production Act of 1950 

(Defense Production Act) (50 U.S.C. 

App. 2061 et seq.) was enacted during 

the Korean War to ensure the 

availability of resources to meet national 

security needs. The Defense Production 

Act provides a number of important 

authorities to expedite and expand the 

supply of critical resources from the 

U.S. industrial base to support the 

national defense. While Defense 

Production Act provisions initially 

focused on Department of Defense (DoD) 

acquisition needs, several significant 

changes to the Defense Production Act 

definition of national defense have been 

added over time to expand the 

definition from military, energy, and 

space activities, to include emergency 

preparedness activities conducted 

pursuant to title VI of the Robert T. 

Stafford Disaster Relief and Emergency 

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

5121 et seq.) and the protection and 

restoration of critical infrastructure. 

Section 101(a) of title I of the Defense 

Production Act (50 U.S.C. App. 2071) 

authorizes the President: 


jlentini on DSKJ8SOYB1PROD with PROPOSALS
8676 Federal Register / Vol. 76, No. 31 / Tuesday, February 15, 2011 / Proposed Rules 

1Section 201 of Executive Order 12919 also 

delegates Defense Production Act section 101 

authority to: 

(1) The Secretary of Agriculture with respect to 

food resources, food resource facilities, and the 

domestic distribution of farm equipment and 

commercial fertilizer; 

(2) The Secretary of Energy with respect to all 

forms of energy; 

(3) The Secretary of Health and Human Services 

with respect to health resources; 

(4) The Secretary of Defense with respect to water 

resources; and 

(5) The Secretary of Commerce for all other 

materials, services, and facilities, including 

construction materials. 

2The other parts that make up FPAS are: 

(1) Agricultural Priorities and Allocations System 

promulgated by the Department of Agriculture; 

(2) Defense Priorities and Allocations System 

promulgated by the Department of Commerce; 

(3) Energy Priorities and Allocations System 

promulgated by the Department of Energy; 

(4) Health Resources Priorities and Allocations 

System promulgated by the Department of Health 

and Human Service; and 

(5) Water Resources Priorities and Allocations 

System promulgated by the Department of Defense. 

(1) To require that performance under 

contracts or orders (other than contracts 

of employment) which he deems 

necessary or appropriate to promote the 

national defense shall take priority over 

performance under any other contract or 

order, and, for the purpose of assuring 

such priority, to 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, and (2) 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. 

Executive Order 12919, National 

Defense Industrial Resources 

Preparedness (June 3, 1994), as 

amended, delegates the President’s 

authority under section 101 of the 

Defense Production Act to the heads of 

several departments and agencies. The 

President has delegated this authority to 

the Secretary of Transportation with 

respect to all forms of civil 

transportation.1 While the Department 

of Transportation (DOT) is seeking 

comments on all aspects of the 

rulemaking, we are particularly 

interested in comments on the scope 

and applicability of the definition of 

civil transportation. 

Section 202 of Executive Order 12919 

provides that this delegated authority 

may only be used to support programs 

that have been determined in writing as 

necessary or appropriate to promote the 

national defense by the Secretary of 

Defense with respect to military 

production and construction, military 

assistance to foreign nations, 

stockpiling, outer space and directly 

related activities; the Secretary of 

Energy with respect to energy 

production and construction, 

distribution and use, and directly 

related activities; or the Secretary of 

Homeland Security with respect to 

essential civilian needs supporting 

national defense, including civil defense 

and continuity of government and 

directly related activities. 

Executive Order 12656, Assignment of 

Emergency Preparedness 

Responsibilities, as amended, assigns 

Federal departments and agencies 

responsibilities for national security 

emergency preparedness. The Secretary 

of Transportation is assigned lead 

responsibility for, among other things, 

(1) Developing plans to promulgate 

and manage overall national policies, 

programs, procedures, and systems to 

meet essential civil and military 

transportation needs in national security 

emergencies; (2) preparing to provide 

direction to all modes of civil 

transportation in national security 

emergencies, including air, surface, 

water, pipelines, and public storage and 

warehousing, to the extent such 

responsibility is vested in the Secretary 

for: (a) Implementation of priorities for 

all transportation resource requirements 

for service, equipment, facilities, and 

systems; and (b) allocation of 

transportation resource capacity; and (3) 

emergency management and control of 

civil transportation resources and 

systems, including privately owned 

automobiles, urban mass transit, 

intermodal transportation systems, the 

National Railroad Passenger Corporation 

and the St. Lawrence Seaway 

Development Corporation. 

This proposed rule would set forth the 

policies and procedures by which the 

Secretary would carry out certain 

authorities and responsibilities assigned 

under Executive Order 12656. 

The Defense Production Act 

Reauthorization of 2009 (Pub. L. 111– 

67, September 30, 2009) requires each 

Federal agency with delegated authority 

under section 101 of the Defense 

Production Act to issue final rules 

establishing standards and procedures 

by which the priorities and allocations 

authority is used to promote the 

national defense, under both emergency 

and non-emergency conditions. 

Congress further directed that, to the 

extent practicable, the Federal agencies 

should work together to develop a 

consistent and unified Federal priorities 

and allocations system. 

In order to meet this mandate, DOT 

has worked in conjunction with the 

Departments of Agriculture, Commerce, 

Defense, Energy, Health and Human 

Services, and Homeland Security to 

develop common provisions that can be 

used by each Department in its own 

regulation. Common provisions among 

the Departments would provide 

consistency and uniformity for how the 

Federal priorities and allocations are 

applied. However, each Department 

would supplement in its own 

regulation, as necessary, the common 

provisions in order to provide 

additional standards and procedures 

unique to its resource area. The six 

regulations to be promulgated by each 

Department with delegated Defense 

Production Act title I authority would 

be commonly referred to as the Federal 

Priorities and Allocations System 

(FPAS) of rules. 

DOT’s proposed regulation to form 

part of the FPAS would be known as the 

Transportation Priorities and 

Allocations System (TPAS).2 Although 

DOT has developed procedures for 

implementing this authority through 

Departmental orders and other internal 

documents and protocols, DOT now 

proposes to establish a regulatory 

framework through TPAS to implement 

these authorities through this 

rulemaking. While TPAS adopts the 

common standards established under 

the FPAS, it would also include 

requirements that are specific to civil 

transportation. Transportation services 

covered under TPAS would include the 

movement of persons and property by 

all modes of civil transportation in 

commerce and related public storage 

and warehousing, ports, services, 

equipment and facilities. 

DOT’s Maritime Administration 

(MARAD) currently has regulations in 

46 CFR that are based on Defense 

Production Act section 101 authority 

and is currently reviewing these 

regulations to determine if any 

modifications are necessary to bring 

them into conformance with TPAS. 

Generally speaking, the transportation 

sector is very robust and even in 

emergencies DOT expects that the 

normal interactions between civilian 

transportation providers and those using 

their services will be maintained or that 

it will be possible to address any 

disruptions that may occur without the 

need for DOT to employ its priorities 

and allocations authority. Although 

DOT is developing a system to be used 

in emergency and non-emergency 

situations, DOT anticipates that only an 

extreme crisis would trigger the need to 

use DOT’s authorities under this 

proposed rule. DOT has conducted 

response activities to multiple crises 

over the last decade and at no time 


jlentini on DSKJ8SOYB1PROD with PROPOSALS
Federal Register / Vol. 76, No. 31 / Tuesday, February 15, 2011 / Proposed Rules 8677 

during the most severe situation was 

DOT required to use its delegated 

Defense Production Act priority or 

allocation authority to marshal adequate 

transportation resources to complete its 

mission. Instead, there was sufficient 

transportation capacity available 

through normal interactions or 

alternative arrangements between 

transportation service providers and end 

users to meet the demand or the 

disruption was addressed through other 

means. 

II. Section-by-Section Analysis 

Subpart A—General 

Section 33.1 Purpose of this part. 

This section explains that the purpose 

of this rule would be to provide 

guidance and procedures for use of the 

Defense Production Act priorities and 

allocations authority with respect to 

civil transportation, in accordance with 

the delegation of authority provided in 

section 201 of Executive Order 12919. 

This section also lists other agency 

regulations that, along with this 

regulation, would form the Federal 

Priorities and Allocations System. 

Section 33.2 Priorities and 

allocations authority. This section 

would summarize the delegations of 

priorities and allocations authority in 

section 201 of Executive Order 12919. 

This section would also explain that 

these delegated authorities may only be 

used to support programs that have been 

determined in writing as necessary or 

appropriate to promote the national 

defense by the Secretaries of Defense, 

Energy, or Homeland Security in their 

respective areas of jurisdiction, as 

specified in section 202 of Executive 

Order 12919. 

Section 33.3 Program eligibility. 

This proposed section lists the 

categories of programs eligible for 

priorities and allocations support, in 

accordance with the definition of 

‘‘national defense’’ in section 702 of the 

Defense Production Act (50 U.S.C. App. 

§ 2152). 

Subpart B—Definitions 

Section 33.20 Definitions. This 

section would contain definitions used 

in this part. Some definitions are drawn 

from other sources, as follows: 

• Section 702 of the Defense 

Production Act (50 U.S.C. App. 

§ 2152)—‘‘critical infrastructure,’’ 

‘‘facilities,’’ ‘‘homeland security,’’ 

‘‘materials,’’ ‘‘national defense,’’ 

‘‘person,’’ and ‘‘services.’’ 

• Section 901 of Executive Order 

12919—‘‘civil transportation,’’ ‘‘energy,’’ 

‘‘farm equipment,’’ ‘‘fertilizer,’’ ‘‘food 

resources,’’ ‘‘food resource facilities,’’ 

‘‘health resources,’’ and ‘‘water 

resources.’’ 

• The current Defense Priorities and 

Allocations System (DPAS) regulation— 

‘‘allotment’’ (with technical 

modifications), ‘‘approved program’’ 

(with technical modifications), 

‘‘construction,’’ ‘‘delegate agency,’’ 

‘‘directive,’’ ‘‘item,’’ ‘‘maintenance and 

repair and operating supplies’’ or 

‘‘MRO,’’ ‘‘official action’’ (with technical 

modifications), ‘‘rated order,’’ and ‘‘setaside’’ (with technical modifications). 

• Section 602 of the Stafford Act (42 

U.S.C. 5195a)—‘‘emergency 

preparedness’’ and ‘‘hazard.’’ 

• Section 18.3 of 49 Code of Federal 

Regulations—‘‘local government’’ and 

‘‘state.’’ 

The definitions of ‘‘allocation,’’ 

‘‘allocation authority,’’ and ‘‘allocation 

order’’ are based on language in section 

101 of the Defense Production Act that 

describes the allocation authority of the 

President. 

‘‘Defense Production Act’’ means the 

Defense Production Act of 1950, as 

amended (50 U.S.C. App. 2061 et seq.). 

‘‘Planning order’’ defines an 

administrative tool used by DOT’s 

Maritime Administration. 

‘‘Resource agency’’ refers to one of the 

six Federal departments that has been 

delegated Defense Production Act 

priorities and allocations authority 

under section 201 of Executive Order 

12919. 

‘‘Secretary’’ refers to the Secretary of 

Transportation. 

‘‘Stafford Act’’ refers to title VI 

(Emergency Preparedness) of the Robert 

T. Stafford Disaster Relief and 

Emergency Assistance Act (42 U.S.C. 

5195–5197g). 

Subpart C—Placement of Rated Orders 

Section 33.30 Delegation of 

authority. This section proposes to 

describe the delegation of priorities and 

allocations authority from the President 

to the Secretary of Transportation for all 

forms of civil transportation. 

DOT anticipates receiving a 

delegation of authority from the 

Department of Commerce to enable DOT 

to place priority ratings for items and 

materials necessary for civil 

transportation resources that fall under 

the Department of Commerce’s 

jurisdiction. For example, such ‘‘flow 

down’’ items might include brakes, tires, 

and engine parts necessary for motor 

coaches to operate under a priority 

order for the provision of civil 

transportation. In instances where DOT 

is placing such a ‘‘flow down’’ priority 

rating under authority delegated from 

the Department of Commerce, the time 

period for acceptance and rejection of 

the rated order set forth in TPAS 

applies, consistent with relevant 

sections of the Department of 

Commerce’s regulations. Transportation 

service providers should work with 

their parts and component providers to 

ensure they are aware that they may be 

asked to provide necessary parts or 

components on an expedited basis. 

Section 33.31 Priority ratings. This 

section would explain the following: 

‘‘DO’’ and ‘‘DX’’ rating symbols; program 

identification symbols; order of 

precedence for directives and ratings; 

and priority ratings that consist of a 

rating symbol and a program 

identification symbol. 

Generally speaking, most contracts or 

orders for transportation services would 

be unrated. However, DOT may 

authorize priority rating authority if 

necessary to support a program that has 

been determined as necessary or 

appropriate to promote the national 

defense. A ‘‘DO’’ rating authorization 

may be authorized if the service or item 

is in critical or urgent need. For 

example, in 1990, DOT’s Federal 

Aviation Administration was granted 

‘‘DO’’ rating authority by DoD for 

specified procurements to support Civil 

Reserve Air Fleet use in Operation 

Desert Shield. In 2002, the 

Transportation Security Administration, 

which was then part of DOT, was 

granted ‘‘DO’’ rating authorization for 

contracts to support the acquisition of 

Explosive Detection Systems machines. 

Finally, in 2005, DOT sponsored a 

priority rating request by a railroad 

operator to support the emergency 

delivery of generators and transfer 

switches to replace those destroyed by 

Hurricane Katrina. The Department of 

Commerce granted the company ‘‘DO’’ 

rating authority. A ‘‘DO’’ rated contract 

or order takes precedence over unrated 

contracts or orders. 

A ‘‘DX’’ rating would be reserved for 

those services or items that are 

determined to support programs that are 

of the highest national defense urgency 

based on the requesting entity’s mission 

objectives. A ‘‘DX’’ rating would take 

precedence over a ‘‘DO’’ rating. The 

Secretary of Transportation must 

approve all requests for a ‘‘DX’’ rating 

pertaining to civil transportation 

resources. 

Program Identification Symbols (PIS) 

would be used to identify approved 

programs, meaning a program that has 

been determined by the Secretaries of 

DoD, DHS, or DOE, as appropriate, as 

necessary to promote the national 

defense. DOT currently has no approved 

programs, but anticipates working with 

Commerce, DHS, DoD or DOE, as 

appropriate, in the near future to 


jlentini on DSKJ8SOYB1PROD with PROPOSALS
8678 Federal Register / Vol. 76, No. 31 / Tuesday, February 15, 2011 / Proposed Rules 

3 In 2007 DOT and DHS entered into a 

Memorandum of Understanding transferring the 

responsibility for evacuations and commodity and 

equipment movements to the Federal Emergency 

Management Agency (FEMA). New authority given 

to FEMA in the Post-Katrina Emergency 

Management Reform Act of 2006 necessitated 

redefining DOT’s role for providing emergency 

transportation services and for designating the 

Federal lead for planning, coordinating and 

conducting evacuations of the general population. 

4 DOT’s contract with Landstar Express America, 

Inc. contained the following requirements for Rapid 

Response Capability: 

Within one (1) hour of receiving the initial Order 

for Service (OFS) from the Contracting Officer, the 

Contractor (Landstar) shall acknowledge receipt of 

the OFS by electronic commerce or fax. 

Within four (4) hours of receipt of an OFS, the 

Contractor shall make transportation equipment 

available at the shipment place of origin to 

commence movement of cargo and passengers, 

using air and surface modes of transportation. The 

Contractor shall meet all pickup and transit 

deadlines. 

develop approved programs. The 

proposed PIS for DOT-approved 

programs would contain the letter ‘‘T’’ 

followed by a letter and a number; for 

example, T–L1. All approved programs 

would have equal status. The PIS would 

be combined with the appropriate 

priority rating authority, either DX or 

DO, to form the priority rating, for 

example DO–T–L1 or DX–T–L1. DOT is 

particularly interested in comments on 

its proposed PIS letter and number 

combination. 

Section 33.32 Elements of a rated 

order. This section proposes to describe 

the four elements that must be included 

in a contract or order to make it a ‘‘rated 

order,’’ in accordance with the standards 

and procedures provided in this part. 

The four elements are: (1) A priority 

rating; (2) specific delivery date(s) for 

materials or services covered in the 

rated order; (3) the signature of an 

individual authorized to place the rated 

order; and (4) a statement describing 

what is required of the rated order 

recipient, in accordance with 

procedures provided in this part. 

This section also would include a 

provision for an additional statement to 

be included in a rated order involving 

emergency preparedness, which would 

require quicker action by the recipient 

to accept or reject the order. The 

justification for the expedited 

timeframes is explained below in the 

§ 33.33 discussion. 

Section 33.33 Acceptance and 

rejection of rated orders. This section 

would describe mandatory and optional 

conditions for acceptance or rejection of 

rated orders, as well as customer 

notification timeframes pertaining to 

acceptance or rejection. In general, a 

person would be required to accept a 

rated order if the person normally 

supplies the materials or services 

covered by the rated order and must do 

so regardless of any other orders on 

hand. Persons would be prohibited from 

charging higher prices, imposing 

different terms, or any other 

discriminatory practices for the rated 

order that are different from a 

comparable unrated order. 

A person would be required to reject 

a rated order if unable to fill the order 

by the specified delivery date(s) or if the 

order would interfere with delivery 

under another rated order with a 

comparable or higher priority rating. In 

addition, a person would be required to 

reject a rated order if the person is 

prohibited by law from meeting the 

terms of the order; for example, the 

provider of the services contemplated in 

the order does not have current 

operating authority to perform the 

service. A person would have the option 

of rejecting a rated order if any one of 

a number of other conditions set forth 

in the regulation exists. 

Under non-emergency conditions, the 

recipient of a rated order would be 

required to accept or reject the rated 

order within fifteen calendar days for a 

‘‘DO’’-rated order or ten working days for 

a ‘‘DX’’-rated order. (See § 33.33(d)) DOT 

is proposing calendar days instead of 

working days in order to provide greater 

specificity for deadlines. However, DOT 

is interested in comments on whether 

the use of calendar days could lead to 

any unintended consequences for 

recipients of a rated order. 

While the deadlines discussed above 

would be appropriate for nonemergency circumstances, they are too 

long for emergency conditions when 

quick procurement actions may be 

needed to help save lives, protect 

property, or restore services. 

Transportation services are unique in 

that they are often the first services 

needed to move people out of harm’s 

way and to move rescue and response 

personnel and supplies into a disaster 

area; thus, transportation services often 

must be marshaled on very short notice. 

DOT proposes in this rule that orders 

placed for the purpose of emergency 

preparedness must be accepted or 

rejected within 6 hours from receipt of 

the order if the order is issued in 

response to a hazard that has occurred 

and within 12 hours from receipt of the 

order if the order is issued to prepare for 

an imminent hazard. 

Prior to 2008, DOT was the lead 

Federal agency responsible for 

providing and managing emergency 

transportation services, including those 

necessary for mass evacuations.3 Our 

experiences while carrying out this 

mission, which included managing the 

massive transportation needs for the 

evacuation of persons and the 

movement of supplies, equipment and 

teams in response to Hurricanes Katrina 

and Rita, confirm that transportation 

providers can respond within these 

expedited timeframes. Specifically, the 

contract that DOT had in place for 

transportation services required the 

contractor to acknowledge an order for 

service within one hour of receiving the 

order and to make transportation 

equipment available at the shipment 

place of origin to begin moving cargo 

and passengers within four hours from 

receipt of the order for service.4

In this proposed provision, DOT 

would only require acceptance or 

rejection of a rated order within an 

expedited timeframe and not actual 

fulfillment of the order within that 

timeframe. The expedited response 

periods proposed in this regulation are 

necessary in order for DOT to rapidly 

identify and obtain sufficient 

transportation resources to meet 

emergency response needs. 

DOT is mindful, however, that some 

circumstances may necessitate closer 

coordination between DOT and the 

potential recipient of a rated order. For 

example, if a rated order is placed in 

preparation for an imminent hazard, 

such as a hurricane that is projected to 

make landfall in 13 hours, DOT 

obviously would not wish to learn at the 

end of the 12-hour window that the 

proposed supplier is unable to accept 

the rated order. In these situations, DOT 

would work closely with industry to 

identify and resolve any potential issues 

in order to meet the transportation 

requirements. 

Not all regulations promulgated under 

FPAS contain such expedited 

notification requirements because those 

resources normally are not required 

immediately for emergency response as 

are transportation resources. However, 

for any orders issued under TPAS that 

‘‘flow down’’ from the prime contractor 

to a subcontracted supplier of a 

necessary service, component, or part, 

the requirements of TPAS would apply 

to all subcontractors in the procurement 

or distribution chain. Therefore, 

transportation service providers should 

work with their suppliers to ensure they 

are aware that they may be asked to 

provide necessary services, parts, or 

components on an expedited basis. 

Section 33.34 Preferential 

scheduling. This section would 

describe: (1) When a recipient of a rated 

order must modify production or 

delivery schedules to satisfy the 

delivery requirements of a rated order; 

(2) the order of precedence for rated, 

unrated, and conflicting orders; and (3) 


jlentini on DSKJ8SOYB1PROD with PROPOSALS
Federal Register / Vol. 76, No. 31 / Tuesday, February 15, 2011 / Proposed Rules 8679 

5Legislative history indicates that Congress was 

concerned that national defense requirements, 

during times of emergency, could consume much of 

the output of key industrial sectors and selected 

producers within some sectors. Allocations 

authority was viewed as a means to ensure an 

equitable distribution of national defense demand 

among potential suppliers to avoid disproportionate 

impacts on each supplier’s share of the civilian 

market. 

6CRAF was formed through a joint agreement 

between DoD and the Department of Commerce. 

Executive Order 10999 placed responsibility for 

administration of the CRAF program in the 

Department of Commerce as a function of the Office 

of Emergency Transportation. In 1967, the Office of 

Emergency Transportation transferred in its entirety 

with its mission, functions and staff into the new 

Department of Transportation. Responsibility for 

carrying out the Secretary’s role with respect to the 

CRAF program now resides with the Office of 

Intelligence, Security and Emergency Response. 

the use of inventoried production items 

when needed to fill a rated order. 

Section 33.35 Extension of priority 

ratings. This section would require that 

the recipient of a rated order must, in 

turn, use rated orders with suppliers to 

obtain items or services needed to fill a 

rated order. The requirement would 

apply to all contractors and 

subcontractors throughout the 

procurement chain necessary to fill the 

rated order. 

Section 33.36 Changes or 

cancellations of priority ratings and 

rated orders. This section would 

describe the procedures for changing or 

cancelling a priority rating or the 

provisions of a rated order. In addition, 

this section would list types of 

modifications that do not constitute a 

new rated order. 

Section 33.37 Use of rated orders. 

This section would describe the process 

and procedures for when the recipient 

of a rated order: (1) Must use rated 

orders to obtain items and services 

needed to fulfill the rated order; (2) may 

use a rated order to replace inventoried 

items that were used to fulfill the order; 

(3) may combine orders with different 

priority ratings or with unrated orders; 

and (4) may forgo use of rated orders for 

orders below certain thresholds. 

Section 33.38 Limitations on placing 

rated orders. This section would 

describe specific circumstances when 

the use of rated orders would be 

prohibited. This section also would 

prohibit the use of TPAS to obtain rated 

orders for a resource under the resource 

jurisdiction of other agencies with 

delegated Defense Production Act 

priorities and allocations authority, 

unless specifically authorized by the 

resource agency. 

Subpart D—Special Priorities 

Assistance 

Section 33.40 General provisions. 

This section would explain the 

circumstances and procedures under 

which DOT would provide assistance in 

resolving problems related to priority 

rated contracts and orders. This section 

also would list the DOT points of 

contact and the form to be used to 

request assistance. 

Section 33.41 Requests for priority 

rating authority. This section would 

establish the procedures to request 

rating authority under special 

circumstances. DOT may grant priority 

ratings for items and services not 

normally rated under the regulation in 

order to prevent a delay of a rated order. 

This section also would specify that 

rating authority for production or 

construction equipment must come 

from the Department of Commerce. 

Finally, this section would explain 

when DOT may authorize the use of a 

priority rating on an order to a supplier 

in advance of the issuance of a rated 

prime contract, and the factors DOT 

would consider in deciding whether to 

grant such a request. 

Section 33.42 Examples of 

assistance. This section would list 

examples of when special priority 

assistance may be provided. 

Section 33.43 Criteria for assistance. 

This section would require that a 

request for special priorities assistance 

be timely, that there be an urgent 

procurement need for the item, and that 

the applicant has made a reasonable 

effort to resolve the problem for which 

assistance is needed. 

§ 33.44 Instances where assistance 

may not be provided. This section 

would list examples of when special 

priority assistance may not be provided. 

Section 33.45 Assistance programs 

with other nations. Reserved. 

Subpart E—Allocation Actions 

Section 33.50 Policy. This section 

would explain the policy of the Federal 

Government regarding use of the 

allocations authority, which is based on 

the statutory language in section 101 of 

the Defense Production Act and the 

legislative history of section 101.5

Specifically, allocation authority would 

only be used when priority authority is 

unable to provide a sufficient supply of 

a material, service, or facility to meet 

the national defense, or when the use of 

priority authority would cause a severe 

and prolonged disruption in the supply 

of materials, services, or facilities 

available to support normal U.S. 

economic activities. 

Allocation authority would not be 

used to ration materials or services at 

the retail level. In other words, 

allocation authority would not be used 

to control how much of a product or 

service a person may have for personal 

use. For example, DOT could use 

allocation authority to require the 

nation’s bus companies to dedicate 40% 

of their bus fleet to a designated 

emergency, but DOT could not use 

allocation authority to tell a bus 

company how to distribute its buses to 

serve its commercial customers or to tell 

a bus company how many tickets it 

could sell to persons in a given month. 

Allocation orders would be 

distributed equitably among similarly 

situated suppliers of the resources being 

allocated and would not require any 

person to relinquish a disproportionate 

share of the civilian market. Allocation 

authority would not apply to resources 

owned by the Federal Government, as 

those resources may be used by the 

controlling Federal entity in accordance 

with other governing laws. Nor, 

generally speaking, would allocation 

authority apply to resources owned by 

States, local governments or Native 

American tribes, as that could 

potentially undermine other Federal 

laws. For example, the Stafford Act is 

designed ‘‘to provide an orderly and 

continuing means of assistance by the 

Federal Government to States and local 

governments in carrying out their 

responsibilities to alleviate the suffering 

and damage which results from * * * 

disasters. * * *’’ Thus, it would be 

counterproductive for the Federal 

Government to consider allocating for 

its own use the very resources the State, 

local or tribal government could be 

counting on as part of its response 

efforts. 

The Civil Reserve Air Fleet (CRAF) 

and the Voluntary Intermodal Sealift 

Agreement (VISA) are two examples of 

DOT’s use of its allocation authority.6

Concerning CRAF, under the terms of a 

Memorandum of Understanding, DOT 

develops plans and allocates aircraft to 

the CRAF program based on DoD 

requirements. DOT advises DoD if it 

intends to allocate fewer aircraft than 

requested by DoD, notifies DoD if a 

particular level of CRAF activation will 

have a serious adverse impact on the 

civil air carrier’s ability to provide 

essential service, and works with DoD to 

identify alternatives or determine ways 

to minimize the impact. DOT publishes 

a periodic allocation of aircraft, by 

registration or ‘‘N’’ number, of each 

airline participating in the CRAF 

program. 

The VISA program is a preparedness 

program designed to make intermodal 

shipping services and systems available 

to DoD as required to support the 

emergency deployment and sustainment 

of U.S. military forces. This is done 

through cooperation among the 


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maritime industry, DOT and DoD 

pursuant to a voluntary agreement 

entered into in accordance with Section 

708 of the Defense Product Act (50 

U.S.C. App. § 2158). During a Stage III 

activation, the Secretary of DoD will 

request the Secretary of DOT to allocate 

sealift capacity based on DoD 

requirements. 

Section 33.51 General procedures. 

The proposed procedures set out in this 

section and in proposed section 33.52 

are intended to provide a reasonable 

assurance that allocation authority 

would only be used in situations where 

such authority is justified. Section 33.51 

would set out the specific requirements 

and findings that DOT must meet before 

it could use its allocation authority. 

One requirement would be for DOT to 

obtain a written determination from 

either DoD, DHS or DOE, as appropriate, 

that the program DOT intends to 

support through its allocation authority 

is necessary or appropriate to support 

the national defense. As previously 

mentioned, section 202 of Executive 

Order 12919 requires such a finding 

before DOT can take an allocation 

action. Additionally, DOT would be 

required to provide a detailed 

description of the situation creating the 

need for allocation and the specific 

objectives to be obtained through the 

allocation action; a list of the materials, 

services, or facilities to be allocated, and 

of the sources that will be subject to the 

allocation action; a detailed description 

of the requirements to be contained in 

the allocation action, to include the 

percentage or quantity of capacity to be 

allocated and the duration of the 

allocation action; and an evaluation of 

the potential impact on the civilian 

market and proposed actions to mitigate 

any disruption of the civilian market. 

Section 33.52 Controlling the 

general distribution of a material in the 

civilian market. This section would 

provide procedures for making the 

findings required by section 101(b) of 

the Defense Production Act and section 

201(d) of Executive Order 12919. 

Defense Production Act section 101(b) 

states that the priorities and allocations 

authority shall not be used to control 

the general distribution of any material 

in the civilian market unless the 

President finds (1) that such material is 

a scarce and critical material essential to 

the national defense, and (2) that 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. Section 201(d) of Executive 

Order 12919 directs each agency with 

delegated authority under section 101 of 

the Defense Production Act to make the 

finding required by section 101(b) and 

submit the finding for the President’s 

approval through the Assistant to the 

President for National Security Affairs. 

By definition under the Defense 

Production Act, services, including 

transportation services, are not 

considered a ‘‘material’’ as contemplated 

in section 101(b) of the Defense 

Production Act or section 201(d) of 

Executive Order 12919. 

Section 33.53 Types of allocation 

orders. This section proposes to 

describe the three types of allocations 

orders DOT might issue: a set-aside; an 

allocation directive; or an allotment. A 

set-aside is an official action that would 

require a person to reserve a resource 

capacity in anticipation of receipt of 

rated orders. An allocation directive is 

an official action that would require a 

person to take or refrain from taking 

certain actions in accordance with its 

provisions. For example, an allocation 

directive could require a person to stop 

or reduce production of an item or 

service; prohibit the use of selected 

materials, services or facilities; divert 

supply of one type of material, service 

or facility to another; or to supply a 

specific quantity, size, shape, and type 

of an item or service within a specific 

time period. An allotment is an official 

action that would specify the maximum 

quantity of a material, service, or facility 

authorized for use in a specific program 

or application. 

Section 33.54 Elements of an 

allocation order. This section would 

describe the minimum elements of an 

allocation order. These elements would 

be: (1) A detailed description of the 

required allocation action(s); (2) specific 

start and end calendar dates for each 

required allocation action; (3) the 

written signature on a manually placed 

order, or the digital signature or name 

on an electronically placed order, of the 

Secretary of DOT, which would certify 

that the order is authorized under this 

regulation and that the requirements of 

this part are being followed; (4) a 

statement that the order is certified for 

national defense use and that recipients 

are required to comply with the order; 

and (5) a copy of the Transportation 

Priorities and Allocations System 

regulation. 

Section 33.55 Mandatory acceptance 

of an allocation order. This section 

would require a person to accept and 

comply with allocation orders if the 

person is capable of complying. If a 

person is unable to comply fully with 

the required actions specified in an 

allocation order, the person would be 

required to notify DOT immediately, 

explain the extent to which compliance 

is possible, and give reasons why full 

compliance is not possible. 

Furthermore, notifying DOT of possible 

non-compliance does not release the 

person from complying with the 

allocation order to the extent possible. 

This section also would state that a 

person may not discriminate against an 

allocation order in any manner, such as 

by charging higher prices or imposing 

terms and conditions on allocation 

orders that are different from what the 

person imposed on contracts or orders 

for the same resource prior to receiving 

the allocation order. 

Section 33.56 Changes or 

cancellations of an allocation order. 

This section would state that DOT may 

modify or cancel an allocation order. 

Subpart F—Official Actions 

Section 33.60 General provisions. 

This section would set out the specific 

official actions that DOT may take to 

implement the provisions of this 

regulation. These official actions 

include Rating Authorizations, 

Directives, Planning Orders, and 

Memoranda of Understanding. 

Section 33.61 Rating authorizations. 

This section would define a rating 

authorization as an official action 

granting priority rating authority. 

Section 33.62 Directives. This 

section would define a directive as an 

official action that requires a person to 

take or refrain from taking certain 

actions in accordance with its 

provisions. A priority directive would 

take precedence over rated orders, and 

allocation directives take precedence 

over a priority directive. 

Section 33.63 Memoranda of 

Understanding. This section would 

explain that a Memorandum of 

Understanding is an official action that 

may be issued to reflect an agreement 

resolving a request for special priorities 

assistance. A Memorandum of 

Understanding may not be used to alter 

scheduling between rated orders, 

authorize the use of priority ratings, 

impose restrictions under this 

regulation, or take other official actions. 

Subpart G—Compliance 

Section 33.70 General provisions. 

This section would clarify that DOT has 

the authority to enforce or administer 

the Defense Production Act, this 

regulation, or an official action. 

Additionally, this section would state 

that willful violations of title I or section 

705 of the Defense Production Act, this 

regulation, or an official DOT action, are 

criminal acts, punishable as provided in 

the Defense Production Act, and as set 

forth in § 33.74 below. 


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Section 33.71 Audits and 

investigations. This section would 

provide the procedures for conducting 

audits and investigations to ensure that 

the provisions of the Defense 

Production Act and other applicable 

statutes, this regulation, and official 

actions have been properly followed. 

This provision is limited to activities 

conducted under DPA authorities and 

would not limit the authority of DOT 

elements to initiate and conduct audits, 

investigations, or other inquiries under 

their specific statutes or authorities, nor 

would it affect the process for such 

audits, investigations or inquiries. 

Section 33.72 Compulsory process. 

This section would explain the 

procedures DOT may use to seek a 

compulsory process if a person refuses 

to permit a duly authorized DOT 

representative to have access to any 

premises or any necessary information. 

For purposes of this regulation, 

compulsory process would mean the 

institution of appropriate legal action, 

including ex parte application for an 

inspection warrant or its equivalent in 

any forum of appropriate jurisdiction. 

Furthermore, compulsory process under 

this regulation may be sought in 

advance of an audit or investigation if 

DOT believes a person will refuse to 

comply with the audit or investigation. 

Section 33.73 Notification of failure 

to comply. This section would provide 

procedures for notification of failure to 

comply with the Defense Production 

Act, other applicable statutes, this 

regulation, or an official DOT action. 

Section 33.74 Violations, penalties, 

and remedies. This section would set 

out the penalties and related actions the 

Government may take for violations of 

the provisions of title I or sections 705 

or 707 of the Defense Production Act, 

the priorities provisions of the Selective 

Service Act, when applicable, this 

regulation, or an official DOT action. 

Section 33.75 Compliance conflicts. 

This section would require persons to 

immediately notify DOT if compliance 

with any provision of the Defense 

Production Act, other applicable 

statutes, this part, or an official action 

would prevent a person from filling a 

rated order or from complying with 

another provision of the Defense 

Production Act, other applicable 

statutes, this regulation, or an official 

action. 

Subpart H—Adjustments, Exceptions, 

and Appeals 

Section 33.80 Adjustments or 

exceptions. This section would describe 

the procedures necessary to request an 

adjustment or exception to a provision 

of this regulation or an official action on 

the grounds that it would create an 

undue or exceptional hardship or 

compliance is contrary to the intent of 

the Defense Production Act or this 

regulation. Such requests must be 

submitted in writing and the submission 

of a request for adjustment or exception 

does not relieve the requester from 

compliance while the request is being 

considered by DOT. 

Section 33.81 Appeals. This section 

would provide procedures and 

timeframes for appealing a decision 

denying relief from a request for an 

adjustment or exception under this 

regulation. This section would provide 

for an expedited procedure for appeals 

involving a rated order placed for the 

purpose of emergency preparedness. 

Subpart I—Miscellaneous Provisions 

Section 33.90 Protection against 

claims. This section would provide 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 

provision of this regulation or an official 

action. This ‘‘hold harmless’’ provision 

applies even if any provision of this 

regulation or action is subsequently 

declared to be invalid by judicial or 

other competent authority. 

Section 33.91 Records and reports. 

This section would require persons to 

create and preserve for at least three 

years accurate and complete records of 

any transaction covered by this 

regulation or an official action. This 

section also would detail the various 

requirements pertaining to the required 

records and reports. In addition, this 

section would describe the 

confidentiality provision of the Defense 

Production Act pertaining to 

information submitted under the 

Defense Production Act or this 

regulation. 

Section 33.92 Applicability of this 

part and official actions. This section 

would establish the jurisdictional 

applicability of this regulation. 

Section 33.93 Communications. This 

section would provide DOT contact 

information for communications 

concerning this regulation. 

III. Regulatory Analyses and Notices 

A. Executive Order 12866—Regulatory 

Planning and Review 

This proposed rule is a ‘‘significant 

regulatory action’’ under section 3(f) of 

Executive Order 12866, Regulatory 

Planning and Review. While the 

requirements under title I of the Defense 

Production Act have been in existence 

for years, these proposed regulations are 

new to the transportation industry and 

could be considered to raise novel legal 

or policy issues under section 3(f)(4) of 

Executive Order 12866. The proposed 

rule is not economically significant, 

however, as it would not have an annual 

economic impact of over $100 million. 

B. Executive Order 13132—Federalism 

This proposed rule has been analyzed 

in accordance with the principles and 

criteria contained in Executive Order 

13132, Federalism. This proposed rule 

would not have a substantial direct 

effect on, or sufficient federalism 

implications for, the States, nor would 

it limit the policymaking discretion of 

the States. Therefore, the consultation 

requirements of Executive Order 13132 

do not apply. 

C. Executive Order 13175—Consultation 

and Coordination With Indian Tribal 

Governments 

This proposed rule has been analyzed 

in accordance with the principles and 

criteria contained in Executive Order 

13175 Consultation and Coordination 

with Indian Tribal Governments. 

Because this proposed rule would not 

significantly or uniquely affect the 

communities of the Indian tribal 

governments and would not impose 

substantial direct compliance costs, the 

funding and consultation requirements 

of Executive Order 13175 would not 

apply. 

D. Regulatory Flexibility Act 

The Regulatory Flexibility Act (5 

U.S.C. 601 et seq.) requires an agency to 

review regulations to assess their impact 

on small entities unless the agency 

determines that a rule is not expected to 

have significant impact on a substantial 

number of small entities. 

Potentially Affected Small Entities 

Small entities include small 

businesses, small organizations and 

small governmental jurisdictions. For 

purposes of assessing the impacts of this 

proposed rule on small entities, a small 

business, as described in the Small 

Business Administration’s Table of 

Small Business Size Standards Matched 

to North American Industry 

Classification System Codes (August 

2008 Edition), has a maximum annual 

revenue of $33.5 million and a 

maximum of 1,500 employees (for some 

business categories, these numbers are 

lower). A small governmental 

jurisdiction is a government of a city, 

town, school district or special district 

with a population of less than 50,000. A 

small organization is any not-for-profit 

enterprise that is independently owned 

and operated and is not dominant in its 

field. 


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This proposed regulation would set 

criteria under which DOT would 

authorize prioritization of certain orders 

or contracts, as well as criteria under 

which DOT would issue orders 

allocating materials, services, or 

facilities. Because the proposed rule 

would mainly be used for larger 

commercial transportation operations, 

DOT believes that small organizations 

and small governmental jurisdictions 

are unlikely to be affected by this 

proposed rule. To date, DOT has not 

exercised its existing priorities authority 

and has only exercised its existing 

allocations authority for one aviation 

program and one sealift program, both 

of which rely on voluntary engagement 

by industry. Therefore, DOT has no 

basis on which to estimate the number 

of small businesses that might be 

affected by promulgation of this 

proposed rule. 

Potential Impacts 

Although DOT cannot determine 

precisely the number of small entities 

that would be affected by this proposed 

rule, DOT believes that the overall 

impact on such entities would not be 

significant. In most instances, rated 

contracts would be fulfilled in addition 

to other (unrated) contracts and could 

actually increase the total amount of 

business for a firm that receives a rated 

contract. DOT expects that allocations 

would be ordered only in extraordinary 

circumstances, other than in the two 

well-established, voluntary programs 

discussed above. Furthermore, DOT 

believes that the provisions of section 

701(e) of the Defense Production Act, 

which requires that small businesses be 

considered in allocations, indicate that 

any impact on small business would not 

be significant. 

Conclusion 

Therefore, for the reasons set forth 

above, I certify that this proposed rule, 

if implemented, would not have a 

significant economic impact on a 

substantial number of small entities. 

E. Paperwork Reduction Act 

This proposed rule contains an 

information collection requirement. As 

required by the Paperwork Reduction 

Act of 1995 (44 U.S.C. 3501–3520), DOT 

has submitted the information 

requirement to the Office of 

Management and Budget (OMB) for 

review. DOT estimates that the public 

reporting burden for submission of 

Form OST F 1254 is an average of 30 

minutes per response, including the 

time for reviewing instructions, 

searching existing data sources, 

gathering and maintaining the data 

needed, and completing and reviewing 

the collection of information. 

DOT is seeking public comment on 

any aspect of the information collection, 

including: (1) Whether the proposed 

collection is necessary for DOT’s 

performance; (2) the accuracy of the 

estimate burdens; (3) ways for DOT to 

enhance the quality, usefulness, and 

clarity of the collected information; and 

(4) ways that the burden could be 

minimized without reducing the quality 

of the collected information. 

Organizations and individuals desiring 

to submit comments on the collection of 

information should direct them to the 

Office of Management and Budget, 

Attention: Desk Officer for the Office of 

the Secretary of Transportation, Office 

of Information and Regulatory Affairs, 

Washington, DC 20505. Comments 

should also be sent to the Department of 

Transportation, Attn: Defense 

Production Act Activities Coordinator, 

Office of Intelligence, Security, and 

Emergency Response, 1200 New Jersey 

Avenue, SE., Washington DC 20590. 

We will respond to any OMB or 

public comments on the information 

collection requirement contained in this 

proposed rule. DOT may not impose a 

penalty on persons for violating 

information collection requirements that 

do not display a current OMB control 

number, if required. DOT intends to 

obtain a current OMB control number 

for the information collection 

requirements that would result from this 

proposed rulemaking action. The OMB 

control number, when assigned, will be 

announced by separate notice in the 

Federal Register. 

List of Subjects in 49 CFR Part 33 

Administrative practice and 

procedure, Business and industry, 

Government contracts, National 

Defense, Reporting and recordkeeping 

requirements, Strategic and critical 

materials, Transportation. 

Raymond LaHood, 

Secretary of Transportation. 

In consideration of the foregoing, the 

Department proposes to add Part 33 of 

Title 49, Code of Federal Regulations, to 

read as follows: 

PART 33—TRANSPORTATION 

PRIORITIES AND ALLOCATION 

SYSTEM 

Subpart A—General 

Sec. 

33.1 Purpose of this part. 

33.2 Priorities and allocations authority. 

33.3 Program eligibility. 

Subpart B—Definitions 

33.20 Definitions. 

Subpart C—Placement of Rated Orders 

33.30 Delegation of authority. 

33.31 Priority ratings. 

33.32 Elements of a rated order. 

33.33 Acceptance and rejection of rated 

orders. 

33.34 Preferential scheduling. 

33.35 Extension of priority ratings. 

33.36 Changes or cancellations of priority 

ratings and rated orders. 

33.37 Use of rated orders. 

33.38 Limitations on placing rated orders. 

Subpart D—Special Priorities Assistance 

33.40 General provisions. 

33.41 Requests for priority rating authority. 

33.42 Examples of assistance. 

33.43 Criteria for assistance. 

33.44 Instances where assistance may not 

be provided. 

33.45 [Reserved] 

Subpart E—Allocation Actions 

33.50 Policy. 

33.51 General procedures. 

33.52 Controlling the general distribution of 

a material in the civilian market. 

33.53 Types of allocation orders. 

33.54 Elements of an allocation order. 

33.55 Mandatory acceptance of an 

allocation order. 

33.56 Changes or cancellations of an 

allocation order. 

Subpart F—Official Actions 

33.60 General provisions. 

33.61 Rating Authorizations. 

33.62 Directives. 

33.63 Memoranda of Understanding. 

Subpart G—Compliance 

33.70 General provisions. 

33.71 Audits and investigations. 

33.72 Compulsory process. 

33.73 Notification of failure to comply. 

33.74 Violations, penalties, and remedies. 

33.75 Compliance conflicts. 

Subpart H—Adjustments, Exceptions, and 

Appeals 

33.80 Adjustments or exceptions. 

33.81 Appeals. 

Subpart I—Miscellaneous Provisions 

33.90 Protection against claims. 

33.91 Records and reports. 

33.92 Applicability of this part and official 

actions. 

33.93 Communications. 

Appendix I to Part 33—Sample Form OST F 

1254 

Appendix II to Part 33—Schedule 1 

Approved Programs 

Authority: Defense Production Act of 

1950, as amended, 50 U.S.C. App. 2061– 

2171; Executive Order 12919, as amended, 

(59 FR 29525, June 7, 1994). 

Subpart A—General 

§ 33.1 Purpose of this part. 

This part provides guidance and 

procedures for use of the Defense 

Production Act priorities and 

allocations authority with respect to all 

forms of civil transportation. The 


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guidance and procedures in this part are 

generally consistent with the guidance 

and procedures provided in other 

regulations that, as a whole, form the 

Federal Priorities and Allocations 

System. Guidance and procedures for 

use of the Defense Production Act 

priorities and allocations authority with 

respect to other types of resources are 

provided for: food resources, food 

resource facilities, and the domestic 

distribution of farm equipment and 

commercial fertilizer in the Agricultural 

Priorities and Allocation Systems at 7 

CFR part 700; all forms of energy in the 

Energy Priorities and Allocations 

System regulation at 10 CFR part 217; 

health resources in the Health Resources 

Priorities and Allocations System at 

[CFR citation to be inserted in the final 

rule]; water resources in the Water 

Resources Priorities and Allocations 

System at [CFR citation to be inserted in 

the final rule]; and all other materials, 

services, and facilities, including 

construction materials in the Defense 

Priorities and Allocations System 

(DPAS) regulation at 15 CFR part 700. 

§ 33.2 Priorities and allocations authority. 

(a) Section 201 of Executive Order 

12919 (59 FR 29525) delegates the 

President’s authority under section 101 

of the Defense Production Act to require 

acceptance and priority performance of 

contracts and orders (other than 

contracts of employment) to promote 

the national defense over performance 

of any other contracts or orders, and to 

allocate materials, services, and 

facilities as deemed necessary or 

appropriate to promote the national 

defense to: 

(1) The Secretary of Agriculture with 

respect to food resources, food resource 

facilities, and the domestic distribution 

of farm equipment and commercial 

fertilizer; 

(2) The Secretary of Energy with 

respect to all forms of energy; 

(3) The Secretary of Health and 

Human Services with respect to health 

resources; 

(4) The Secretary of Transportation 

with respect to all forms of civil 

transportation; 

(5) The Secretary of Defense with 

respect to water resources; and 

(6) The Secretary of Commerce for all 

other materials, services, and facilities, 

including construction materials. 

(b) Section 202 of Executive Order 

12919 states that the priorities and 

allocations authority delegated in 

section 201 of the order may be used 

only to support programs that have been 

determined in writing as necessary or 

appropriate to promote the national 

defense: 

(1) By the Secretary of Defense with 

respect to military production and 

construction, military assistance to 

foreign nations, stockpiling, outer space, 

and directly related activities; 

(2) By the Secretary of Energy with 

respect to energy production and 

construction, distribution and use, and 

directly related activities; and 

(3) By the Secretary of Homeland 

Security with respect to essential 

civilian needs supporting national 

defense, including civil defense and 

continuity of government and directly 

related activities. 

§ 33.3 Program eligibility. 

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, 

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. 

Subpart B—Definitions 

§ 33.20 Definitions. 

The following definitions pertain to 

all sections of this part: 

‘‘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 authority’’ means the 

authority of the Department of 

Transportation, pursuant to section 101 

of the Defense Production Act, to 

allocate materials, services, and 

facilities for use in approved programs. 

‘‘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 by the Secretary of Defense, 

the Secretary of Energy, or the Secretary 

of Homeland Security to be necessary or 

appropriate to promote the national 

defense, in accordance with section 202 

of Executive Order 12919. 

‘‘Civil transportation’’ includes 

movement of persons and property by 

all modes of transportation in interstate, 

intrastate, or foreign commerce within 

the United States, its territories and 

possessions, and the District of 

Columbia, and, without limitation, 

related public storage and warehousing, 

ports, services, equipment and facilities, 

such as transportation carrier shop and 

repair facilities. However, ‘‘civil 

transportation’’ shall not include 

transportation owned or controlled by 

the Department of Defense, use of 

petroleum and gas pipelines, and coal 

slurry pipelines used only to supply 

energy production facilities directly. As 

applied herein, ‘‘civil transportation’’ 

shall include direction, control, and 

coordination of civil transportation 

capacity regardless of ownership. 

‘‘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. 

‘‘Defense Production Act’’ means the 

Defense Production Act of 1950, as 

amended (50 U.S.C. App. 2061 et seq.). 

‘‘Delegate Agency’’ means a 

government agency authorized by 

delegation from the Department of 

Transportation to place priority ratings 

on contracts or orders needed to support 

approved programs. 

‘‘Directive’’ means an official action 

that 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. Such term 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 


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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 fire fighting, 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). 

‘‘Energy’’ means all forms of energy 

including petroleum, gas (both natural 

and manufactured), electricity, solid 

fuels (including all forms of coal, coke, 

coal chemicals, coal liquification, and 

coal gasification), and atomic energy, 

and the production, conservation, use, 

control, and distribution (including 

pipelines) of all of these forms of 

energy. 

‘‘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 relating to the use 

of any such building, structure, or other 

improvement. 

‘‘Farm equipment’’ means equipment, 

machinery, and repair parts 

manufactured for use on farms in 

connection with the production or 

preparation for market use of food 

resources. 

‘‘Fertilizer’’ means any product or 

combination of products that contain 

one or more of the elements—nitrogen, 

phosphorus, and potassium—for use as 

a plant nutrient. 

‘‘Food resources’’ means all 

commodities and products, simple, 

mixed, or compound, or complements 

to such commodities or products, that 

are capable of being ingested by either 

human beings or animals, irrespective of 

other uses to which such commodities 

or products may be put, at all stages of 

processing from the raw commodity to 

the products thereof in vendible form 

for human or animal consumption. 

‘‘Food resources’’ also means all 

starches, sugars, vegetable and animal or 

marine fats and oils, cotton, tobacco, 

wool, mohair, hemp, flax fiber, and 

naval stores, but does not mean any 

such material after it loses its identity as 

an agricultural commodity or 

agricultural product. 

‘‘Food resource facilities’’ means 

plants, machinery, vehicles (including 

on-farm), and other facilities required 

for the production, processing, 

distribution, and storage (including cold 

storage) of food resources, livestock and 

poultry feed and seed, and for the 

domestic distribution of farm equipment 

and fertilizer (excluding transportation 

thereof). 

‘‘Hazard’’ means an emergency or 

disaster resulting from— 

(1) A natural disaster; or 

(2) An accidental or man-caused 

event. 

‘‘Health resources’’ means materials, 

facilities, health supplies, and 

equipment (including pharmaceutical, 

blood collecting and dispensing 

supplies, biological, surgical textiles, 

and emergency surgical instruments and 

supplies) required to prevent the 

impairment of, improve, or restore the 

physical and 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. 

‘‘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. 

‘‘Local government’’ means a county, 

municipality, city, town, township, 

local public authority (including any 

public and Indian housing agency under 

the United States Housing Act of 1937) 

school district, special district, 

intrastate district, council of 

governments (whether or not 

incorporated as a nonprofit corporation 

under state law), any other regional or 

interstate government entity, or any 

agency or instrumentality of a local 

government. 

‘‘Maintenance and repair and 

operating supplies’’ or ‘‘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 

resources 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 and critical 

infrastructure protection and 

restoration. 

‘‘Official action’’ means an action 

taken by the Department of 

Transportation or another resource 

agency under the authority of the 

Defense Production Act, Executive 

Order 12919, and this part or another 

regulation under the Federal Priorities 

and Allocations System. Such actions 

include, but are not limited to, the 

issuance of Rating Authorizations, 

Directives, Set Asides, Allotments, 

Planning Orders, Memoranda of 

Understanding, Demands for 

Information, Inspection Authorizations, 

and Administrative Subpoenas. 

‘‘Person’’ includes an 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. 

‘‘Planning order’’ means notification of 

tentative arrangements to meet national 


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defense requirements issued in priority 

order or allocation order format, for 

planning purposes only. 

‘‘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. 

‘‘Resource agency’’ means any agency 

delegated priorities and allocations 

authority as specified in § 33.2. 

‘‘Secretary’’ means the Secretary of 

Transportation. 

‘‘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. 

‘‘Stafford Act’’ means title VI 

(Emergency Preparedness) of the Robert 

T. Stafford Disaster Relief and 

Emergency Assistance Act, as amended 

(42 U.S.C. 5195–5197g). 

‘‘State’’ means any of the several States 

of the United States, the District of 

Columbia, the Commonwealth of Puerto 

Rico, any territory or possession of the 

United States, or any agency or 

instrumentality of a State exclusive of 

local governments. The term does not 

include any public and Indian housing 

agency under United States Housing Act 

of 1937. 

‘‘Water resources’’ means all usable 

water, from all sources, within the 

jurisdiction of the United States, which 

can be managed, controlled, and 

allocated to meet emergency 

requirements. 

Subpart C—Placement of Rated Orders 

§ 33.30 Delegation of authority. 

The priorities and allocations 

authorities of the President under title I 

of the Defense Production Act with 

respect to all forms of civil 

transportation have been delegated to 

the Secretary of Transportation under 

section 201(a)(4) of Executive Order 

12919 of June 3, 1994 (59 FR 29525). 

§ 33.31 Priority ratings. 

(a) Levels of priority. 

(1) There are two levels of priority 

established by set of regulations that 

comprise the 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 

precedence over unrated orders. All DXrated orders have equal priority with 

each other and take precedence over 

DO-rated orders and unrated orders. 

(For resolution of conflicts among rated 

orders of equal priority, see § 33.34(c).) 

(3) In addition, a Directive regarding 

priority treatment for a given item 

issued by the resource agency with 

priorities jurisdiction for that item takes 

precedence over any DX-rated order, 

DO-rated order, or unrated order, as 

stipulated in the Directive. (For a full 

discussion of Directives, see § 33.62.) 

(b) Program identification symbols. 

Program identification symbols indicate 

which approved program is being 

supported by a rated order. DOT will 

use the letter ‘‘T’’ followed by a letter 

and a number for all transportationrelated approved programs. Programs 

may be approved under the procedures 

of Executive Order 12919 at any time. 

Program identification symbols, in 

themselves, do not connote any priority. 

(c) Priority ratings. A priority rating 

consists of the rating symbol—DO and 

DX—and the program identification 

symbol, such as DO–T–L1 or DX–T–L1 

for a priority rating under TPAS. 

§ 33.32 Elements of a rated order. 

Each rated order must include: 

(a) The appropriate priority rating 

(e.g. DO–T or DX–T); 

(b) A required delivery date or dates. 

The words ‘‘immediately’’ or ‘‘as soon as 

possible’’ do not constitute a delivery 

date. A ‘‘requirements contract,’’ ‘‘basic 

ordering agreement,’’ ‘‘prime vendor 

contract,’’ or similar procurement 

document bearing a priority rating may 

contain no specific delivery date or 

dates and may provide for the 

furnishing of items or service from timeto-time or within a stated period against 

specific purchase orders, such as ‘‘calls,’’ 

‘‘requisitions,’’ and ‘‘delivery orders’’. 

These purchase orders 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; 

(c) 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 

or use of the name certifies that the 

rated order is authorized under this part 

and that the requirements of this part 

are being followed; and 

(d)(1) 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 Transportation Priorities and 

Allocations System regulation at 49 CFR 

part 33. 

(2) If the rated order is placed in 

support of emergency preparedness 

requirements and expedited action is 

necessary and appropriate to meet these 

requirements, the following sentences 

should be added following the 

statement set forth in paragraph (d)(1) of 

this section: 

This rated order is placed for the 

purpose of emergency preparedness. It 

must be accepted or rejected within 

[INSERT NUMBER OF HOURS 

REQUIRED IN § 33.33] hours from 

receipt of the order, in accordance with 

§ 33.33(e) of the Transportation 

Priorities and Allocations System 

regulation at 49 CFR Part 33. 

§ 33.33 Acceptance and rejection of rated 

orders. 

(a) Mandatory acceptance. 

(1) Except as otherwise specified in 

this section, a person shall 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 shall 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 the Department of 

Transportation for a rated order 

involving all forms of civil 

transportation: 

(1) A person shall 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 shall not accept a DOrated 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 shall not accept a DXrated 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. 


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(4) If a person is unable to fill all of 

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. 

(5) A person shall not accept a rated 

order if the person is prohibited by 

Federal law from meeting the terms of 

the order. 

(c) Optional rejection. Unless 

otherwise directed by the Department of 

Transportation for a rated order 

involving all forms of civil 

transportation, 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 capable of 

being performed; 

(3) If the order is for an item or service 

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 or provided similar 

services, the supplier is obligated to 

accept rated orders up to that quantity 

or portion of production or service, 

whichever is greater, sold or provided 

within the past two years; 

(4) If the person placing the rated 

order, other than the U.S. 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 the Department of 

Transportation, issued under the 

authority of the Defense Production Act 

or another relevant statute. 

(d) Customer notification 

requirements. 

(1) Except as provided in paragraph 

(e) of this section, a person must accept 

or reject a rated order in writing or 

electronically within fifteen (15) 

calendar days after receipt of a DO rated 

order and within ten (10) calendar days 

after receipt of a DX rated order. If the 

order is rejected, the person must give 

reasons in writing or electronically for 

the rejection. 

(2) 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 or 

electronic confirmation must be 

provided within five (5) calendar days. 

(e) Exception for emergency 

preparedness conditions. If a rated order 

is placed for the purpose of emergency 

preparedness and includes the 

additional statement set forth in 

§ 33.32(d)(2), a person must accept or 

reject the rated order and transmit the 

acceptance or rejection in writing or in 

an electronic format: 

(1) Within six (6) hours after receipt 

of the order if the order is issued in 

response to a hazard that has occurred; 

or 

(2) Within the greater of twelve (12) 

hours from receipt of the order or the 

time specified in the order, if the order 

is issued to prepare for an imminent 

hazard. 

§ 33.34 Preferential scheduling. 

(a) A person must schedule 

operations, including the acquisition of 

all needed production items or services, 

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 or performance 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 or 

services being performed against 

unrated orders. Similarly, DX-rated 

orders must be given preference over 

DO-rated orders and unrated orders. 

(Examples: If a person receives a DOrated 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.) 

(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 shall give precedence to the 

conflicting orders in the sequence in 

which they are to be delivered or 

performed (not to the receipt dates). If 

the conflicting orders are scheduled to 

be delivered or performed on the same 

day, the person shall give precedence to 

those orders that 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 §§ 33.40 

through 33.44. 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 

§§ 33.40 through 33.44. For any rated 

order against which delivery or 

performance will be delayed, the person 

must notify the customer as provided in 

§ 33.33. 

(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 § 33.37(b). 

§ 33.35 Extension of priority ratings. 

(a) A person must use rated orders 

with suppliers to obtain items or 

services 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 the Department of 

Transportation. For example, if a person 

is in receipt of a DO–T–L1 rated order 

for a bus and needs to purchase brakes 

for its use, that person must use a DO– 

T–L1 rated order to obtain the needed 

brakes. 

(b) The priority rating must be 

included on each successive order 

placed to obtain items or services 

needed to fill a customer’s rated order. 

This continues from contractor to 

subcontractor to supplier throughout the 

entire procurement chain. 

§ 33.36 Changes or cancellations of 

priority ratings and rated orders. 

(a) The priority rating on a rated order 

may be changed or canceled by: 

(1) An official action of the 

Department of Transportation; or 

(2) Written notification from the 

person who placed the rated order. 

(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 


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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 § 33.33. 

(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; or a change which is agreed 

upon between the supplier and the 

customer. 

(e) If a person no longer needs items 

or services to fill a rated order, any rated 

orders placed with suppliers for the 

items or services, or the priority rating 

on those orders, must be canceled. 

(f) When a priority rating is added to 

an unrated order, or is changed or 

canceled, all suppliers must be 

promptly notified in writing. 

§ 33.37 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 and the program 

identification symbol indicated on the 

customer’s rated order must be used on 

the order. A DX rating 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. In this case, the 

program identification symbol ‘‘E1’’ 

must be used (i.e., DO–T–E1). 

(c) A person may combine DX- and 

DO-rated orders from one customer or 

several customers if the items or 

services covered by each level of 

priority are identified separately and 

clearly. If different program 

identification symbols are indicated on 

those rated orders of equal priority, the 

person must use the program 

identification symbol ‘‘E1’’ (i.e., DO–T– 

E1 or DX–T–E1). 

(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 four elements of a rated order, 

as required by § 33.32, are included on 

the order with the statement required in 

§ 33.32(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 

Transportation Priorities and 

Allocations System regulations at 49 

CFR part 33 only as it pertains to the 

rated quantities. 

(2) A supplier must accept or reject 

the rated portion of the purchase order 

as provided in § 33.33 and give 

preferential treatment only to the rated 

quantities as required by this part. This 

part may not be used to require 

preferential treatment for 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 section 33.80. 

(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), if possible, to obtain 

minimum procurable quantities. 

(f) A person is not required to place 

a priority rating on an order for less than 

$50,000, or one-half of the Simplified 

Acquisition Threshold (as established in 

the Federal Acquisition Regulations 

(FAR) (see FAR section 2.101) or in 

other authorized acquisition regulatory 

or management systems), whichever 

amount is greater, provided that 

delivery can be obtained in a timely 

fashion without the use of the priority 

rating. 

§ 33.38 Limitations on placing rated 

orders. 

(a) General limitations. (1) A person 

may not place a DO- or DX-rated order 

unless entitled to do so under this part. 

(2) Rated orders may not be used to 

obtain: 

(i) Delivery or performance on a date 

earlier than needed; 

(ii) A greater quantity of the item or 

services 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; 

(iii) Items or services in advance of 

the receipt of a rated order, except as 

specifically authorized by the 

Department of Transportation (see 

§ 33.41(c) for information on obtaining 

authorization for a priority rating in 

advance of a rated order); 

(iv) Items that are not needed to fill 

a rated order, except as specifically 

authorized by the Department of 

Transportation, or as otherwise 

permitted by this part; 

(v) Any of the following items unless 

specific priority rating authority has 

been obtained from the Department of 

Transportation, a Delegate Agency, or 

the Department of Commerce, as 

appropriate: 

(A) Items for plant improvement, 

expansion, or construction, unless they 

will be physically incorporated into a 

construction project covered by a rated 

order; and 

(B) Production or construction 

equipment or items to be used for the 

manufacture of production equipment 

(For information on requesting priority 

rating authority, see § 33.41); or 

(vi) 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. 

(b) Jurisdictional limitations. Unless 

authorized by the resource agency with 

jurisdiction, the provisions of this part 

are not applicable to the following 

resources: 

(1) Food resources, food resource 

facilities, and the domestic distribution 

of farm equipment and commercial 

fertilizer (Resource agency with 

jurisdiction—Department of 

Agriculture); 

(2) All forms of energy, including 

radioisotopes, stable isotopes, source 

material, and special nuclear material 

produced in Government-owned plants 

or facilities operated by or for the 

Department of Energy (Resource agency 

with jurisdiction—Department of 

Energy); 

(3) Health resources (Resource agency 

with jurisdiction—Department of Health 

and Human Services); 

(4) Water resources (Resource agency 

with jurisdiction—Department of 

Defense/U.S. Army Corps of Engineers); 

and 

(5) Communications services 

(Resource agency with jurisdiction— 

National Communications System under 

Executive Order 12472 of April 3, 1984). 


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Subpart D—Special Priorities 

Assistance 

§ 33.40 General provisions. 

(a) TPAS is designed to be largely selfexecuting. However, from time-to-time 

production or delivery problems will 

arise. In this event, a person should 

immediately contact DOT’s Defense 

Production Act Activities Coordinator, 

Office of Intelligence, Security, and 

Emergency Response, 1200 New Jersey 

Avenue, SE., Washington, DC 20590, for 

guidance or assistance. If the problem(s) 

cannot otherwise be resolved, special 

priorities assistance should be sought 

from the Department of Transportation 

through the Director, Office of 

Intelligence, Security, and Emergency 

Response, 1200 New Jersey Avenue, SE., 

Washington, DC 20590. If the 

Department of Transportation is unable 

to resolve the problem or to authorize 

the use of a priority rating and believes 

additional assistance is warranted, the 

Department of Transportation may 

forward the request to another resource 

agency, as appropriate, for action. 

Special priorities assistance is a service 

provided to alleviate problems that do 

arise. 

(b) Special priorities assistance is 

available for any reason consistent with 

this part. Generally, special priorities 

assistance is provided to expedite 

deliveries, resolve delivery conflicts, 

place rated orders, locate suppliers, or 

to verify information supplied by 

customers and vendors. 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 

must be submitted on Form OST F 1254 

(OMB control number to be inserted in 

the final rule) to the Defense Production 

Act Activities Coordinator, Office of 

Intelligence, Security, and Emergency 

Response, 1200 New Jersey Avenue, SE., 

Washington, DC 20590. Form OST F 

1254 may be obtained from the 

Department of Transportation or a 

Delegate Agency. A sample Form OST F 

1254 is attached at Appendix I. 

§ 33.41 Requests for priority rating 

authority. 

(a) If a rated order is likely to be 

delayed because a person is unable to 

obtain items or services not normally 

rated under this part, the person may 

request the authority to use a priority 

rating in ordering the needed items or 

services. 

(b) Rating authority for production or 

construction equipment. 

(1) A request for priority rating 

authority for production or construction 

equipment 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, the Department of 

Transportation, 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 the 

Department of Transportation 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 

the Department of Transportation and 

our use of that priority rating with our 

suppliers in no way commits the 

Department of Transportation or any 

other 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, the Department of 

Transportation 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) The Department of Transportation 

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 shall promptly notify 

all suppliers who have received rated 

orders pursuant to the advanced rating 

authority that the priority rating on 

those orders is cancelled. 

§ 33.42 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 or service 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. 

§ 33.43 Criteria for assistance. 

Requests for special priorities 

assistance should be timely, e.g., the 

request has been submitted promptly 

and enough time exists for the 

Department of Transportation 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. 

§ 33.44 Instances where assistance may 

not be provided. 

Special priorities assistance is 

provided at the discretion of the 

Department of Transportation or the 

Delegate Agencies, 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 


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(e) Overcome a supplier’s regularly 

established terms of sale or conditions 

of doing business. 

§ 33.45 [Reserved] 

Subpart E—Allocation Actions 

§ 33.50 Policy. 

(a) It is the policy of the Federal 

Government that the allocations 

authority under title I of the Defense 

Production Act may: 

(1) Only be used when there is 

insufficient supply of a material, 

service, or facility to satisfy national 

defense supply 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. 

§ 33.51 General procedures. 

When the Department of 

Transportation plans to execute its 

allocations authority to address a supply 

problem within its resource jurisdiction, 

the Department shall develop a plan 

that includes the following information: 

(a) A copy of the written 

determination made in accordance with 

section 202 of Executive Order 12919, 

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 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. 

§ 33.52 Controlling the general distribution 

of a material in the civilian market. 

No allocation action by the 

Department of Transportation may be 

used to control the general distribution 

of a material in the civilian market, 

unless the Secretary of the Department 

of Transportation has: 

(a) Made a written finding that: 

(1) Such material is a scarce and 

critical material essential to the national 

defense, and 

(2) 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; 

(b) Submitted the finding for the 

President’s approval through the 

Assistant to the President for National 

Security Affairs; and 

(c) The President has approved the 

finding. 

§ 33.53 Types of allocation orders. 

There are three types of allocation 

orders available for communicating 

allocation actions. These are: 

(a) Set-aside: An official action that 

requires a person to reserve materials, 

services, or facilities capacity in 

anticipation of the receipt of rated 

orders; 

(b) Directive: 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; and 

(c) Allotment: An official action that 

specifies the maximum quantity of a 

material, service, or facility authorized 

for a specific use. 

§ 33.54 Elements of an allocation order. 

Each allocation order must include: 

(a) A detailed description of the 

required allocation action(s); 

(b) Specific start and end calendar 

dates for each required allocation 

action; 

(c) The written signature on a 

manually placed order, or the digital 

signature or name on an electronically 

placed order, of the Secretary. The 

signature or use of the name certifies 

that the order is authorized under this 

part and that the requirements of this 

part are being followed; 

(d) A statement that reads in 

substance: ‘‘This is an allocation order 

certified for national defense use. [Insert 

the legal name of the person receiving 

the order] is required to comply with 

this order, in accordance with the 

provisions of the Transportation 

Priorities and Allocations System 

regulation (49 CFR part 33)’’; and 

(e) A current copy of the 

Transportation Priorities and 

Allocations System regulation (49 CFR 

part 33) as of the date of the allocation 

order. 

§ 33.55 Mandatory acceptance of an 

allocation order. 

(a) Except as otherwise specified in 

this section, a person shall accept and 

comply with every allocation order 

received. 

(b) A person shall not discriminate 

against an allocation order in any 

manner such as by charging higher 

prices for materials, services, or 

facilities covered by the order or by 

imposing terms and conditions for 

contracts and orders involving allocated 

materials, services, or facilities that 

differ from the person’s terms and 

conditions for contracts and orders for 

the materials, services, or facilities prior 

to receiving the allocation order. 

(c) If a person is unable to comply 

fully with the required action(s) 

specified in an allocation order, the 

person must notify the Department of 

Transportation immediately, explain the 

extent to which compliance is possible, 

and give the reasons why full 

compliance is not possible. If 

notification is given verbally, written or 

electronic confirmation must be 

provided within five (5) calendar days. 

Such notification does not release the 

person from complying with the order 

to the fullest extent possible, until the 

person is notified by the Department of 

Transportation that the order has been 

changed or cancelled. 

§ 33.56 Changes or cancellations of an 

allocation order. 

An allocation order may be changed 

or canceled by an official action of the 

Department of Transportation. 

Subpart F—Official Actions 

§ 33.60 General provisions. 

(a) The Department of Transportation 

may take specific official actions to 

implement the provisions of this part. 

(b) These official actions include, but 

are not limited to, Rating 

Authorizations, Directives, Planning 

Orders, and Memoranda of 

Understanding. 


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§ 33.61 Rating authorizations. 

(a) A Rating Authorization is an 

official action granting specific priority 

rating authority that: 

(1) Permits a person to place a priority 

rating on an order for an item or service 

not normally ratable under this part; or 

(2) Authorizes a person to modify a 

priority rating on a specific order or 

series of contracts or orders. 

(b) To request priority rating 

authority, see § 33.41. 

§ 33.62 Directives. 

(a) A Directive is an official action 

that requires a person to take or refrain 

from taking certain actions in 

accordance with its provisions. 

(b) A person must comply with each 

Directive issued. However, a person 

may not use or extend a Directive to 

obtain any items from a supplier, unless 

expressly authorized to do so in the 

Directive. 

(c) A Priorities Directive takes 

precedence over all DX-rated orders, 

DO-rated orders, and unrated orders 

previously or subsequently received, 

unless a contrary instruction appears in 

the Directive. 

(d) An Allocations Directive takes 

precedence over all Priorities Directives, 

DX-rated orders, DO-rated orders, and 

unrated orders previously or 

subsequently received, unless a contrary 

instruction appears in the Directive. 

§ 33.63 Memoranda of Understanding. 

(a) A Memorandum of Understanding 

is an official action that may be issued 

in resolving special priorities assistance 

cases to reflect an agreement reached by 

all parties (the Department of 

Transportation, the Department of 

Commerce (if applicable), a Delegate 

Agency (if applicable), the supplier, and 

the customer). 

(b) A Memorandum of Understanding 

is not used to alter scheduling between 

rated orders, authorize the use of 

priority ratings, impose restrictions 

under this part, or take other official 

actions. Rather, Memoranda of 

Understanding are used to confirm 

production or shipping schedules that 

do not require modifications to other 

rated orders. 

Subpart G—Compliance 

§ 33.70 General provisions. 

(a) The Department of Transportation 

may take specific official actions for any 

reason necessary or appropriate to the 

enforcement or the administration of the 

Defense Production Act and other 

applicable statutes or this part. Such 

actions include Administrative 

Subpoenas, Demands for Information, 

and Inspection Authorizations. 

(b) Any person who places or receives 

a rated order or an allocation order must 

comply with the provisions of this part. 

(c) Willful violation of the provisions 

of title I or Section 705 of the Defense 

Production Act and other applicable 

statutes, this part, or an official action 

of the Department of Transportation, is 

a criminal act, punishable as provided 

in the Defense Production Act and other 

applicable statutes, and as set forth in 

§ 33.74 of this part. 

§ 33.71 Audits and investigations. 

(a) Audits and investigations are 

official actions involving the 

examination of books, records, 

documents, other writings and 

information to ensure that the 

provisions of the Defense Production 

Act and other applicable statutes, this 

part, and official actions have been 

properly followed. An audit or 

investigation may also include 

interviews and a systems evaluation to 

detect problems or failures in the 

implementation of this part. 

(b) When undertaking an audit, 

investigation, or other inquiry, the 

Department of Transportation shall: 

(1) Define the scope and purpose in 

the official action given to the person 

under investigation; and 

(2) Have ascertained that the 

information sought or other adequate 

and authoritative data are not available 

from any Federal or other responsible 

agency. 

(c) In administering this part, the 

Department of Transportation may issue 

the following documents that constitute 

official actions: 

(1) Administrative Subpoenas. An 

Administrative Subpoena requires a 

person to appear as a witness before an 

official designated by the Department of 

Transportation to testify under oath on 

matters of which that person has 

knowledge relating to the enforcement 

or the administration of the Defense 

Production Act and other applicable 

statutes, this part, or official actions. An 

Administrative Subpoena may also 

require the production of books, papers, 

records, documents and physical objects 

or property. 

(2) Demands for Information. A 

Demand for Information requires a 

person to furnish to a duly authorized 

representative of the Department of 

Transportation any information 

necessary or appropriate to the 

enforcement or the administration of the 

Defense Production Act and other 

applicable statutes, this part, or official 

actions. 

(3) Inspection Authorizations. An 

Inspection Authorization requires a 

person to permit a duly authorized 

representative of the Department of 

Transportation to interview the person’s 

employees or agents, to inspect books, 

records, documents, other writings, and 

information, including electronicallystored information, in the person’s 

possession or control at the place where 

that person usually keeps them or 

otherwise, and to inspect a person’s 

property when such interviews and 

inspections are necessary or appropriate 

to the enforcement or the administration 

of the Defense Production Act and 

related statutes, this part, or official 

actions. 

(d) The production of books, records, 

documents, other writings, and 

information will not be required at any 

place other than where they are usually 

kept if, prior to the return date specified 

in the Administrative Subpoena or 

Demand for Information, a duly 

authorized official of the Department of 

Transportation is furnished with copies 

of such material that are certified under 

oath to be true copies. As an alternative, 

a person may enter into a stipulation 

with a duly authorized official of the 

Department of Transportation as to the 

content of the material. 

(e) An Administrative Subpoena, 

Demand for Information, or Inspection 

Authorization, shall include the name, 

title, or official position of the person 

issuing the document and of the person 

to be served, the evidence sought to be 

adduced, and its general relevance to 

the scope and purpose of the audit, 

investigation, or other inquiry. If 

employees or agents are to be 

interviewed; if books, records, 

documents, other writings, or 

information are to be produced; or if 

property is to be inspected; the 

Administrative Subpoena, Demand for 

Information, or Inspection 

Authorization will describe them with 

particularity. 

(f) Service of documents shall be 

made in the following manner: 

(1) Service of a Demand for 

Information or Inspection Authorization 

shall be made personally, or by Certified 

Mail-Return Receipt Requested at the 

person’s last known address. Service of 

an Administrative Subpoena shall be 

made personally. Personal service may 

also be made by leaving a copy of the 

document with someone at least 18 

years old at the person’s last known 

dwelling or place of business. 

(2) Service upon other than an 

individual may be made by serving a 

partner, corporate officer, or a managing 

or general agent authorized by 

appointment or by law to accept service 

of process. If an agent is served, a copy 

of the document shall be mailed to the 

person named in the document. 


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(3) Any individual 18 years of age or 

over may serve an Administrative 

Subpoena, Demand for Information, or 

Inspection Authorization. When 

personal service is made, the individual 

making the service shall prepare an 

affidavit as to the manner in which 

service was made and the identity of the 

person served, and return the affidavit, 

and in the case of subpoenas, the 

original document, to the issuing officer. 

In case of failure to make service, the 

reasons for the failure shall be stated on 

the original document. 

(g) This section is neither intended to 

limit the authority of the Inspector 

General of the Department of 

Transportation to initiate and conduct 

audits and investigations nor confer 

additional authority beyond that 

provided by the Inspector General Act. 

§ 33.72 Compulsory process. 

(a) If a person refuses to permit a duly 

authorized representative of the 

Department of Transportation to have 

access to any premises or source of 

information necessary to the 

administration or the enforcement of the 

Defense Production Act and other 

applicable statutes, or this part, the 

Department of Transportation 

representative may seek compulsory 

process. Compulsory process means the 

institution of appropriate legal action, 

including ex parte application for an 

inspection warrant or its equivalent, in 

any forum of appropriate jurisdiction. 

(b) Compulsory process may be 

sought in advance of an audit, 

investigation, or other inquiry, if, in the 

judgment of DOT there is reason to 

believe that a person will refuse to 

permit an audit, investigation, or other 

inquiry, or that other circumstances 

exist which make such process desirable 

or necessary. 

§ 33.73 Notification of failure to comply. 

(a) At the conclusion of an audit, 

investigation, or other inquiry, or at any 

other time, the Department of 

Transportation may inform the person 

in writing where compliance with the 

requirements of the Defense Production 

Act and other applicable statutes, this 

part, or an official action were not met. 

(b) In cases where the Department of 

Transportation determines that failure 

to comply with the provisions of the 

Defense Production Act and other 

applicable statutes, this part, or an 

official action was inadvertent, the 

person may be informed in writing of 

the particulars involved and the 

corrective action to be taken. Failure to 

take corrective action may then be 

construed as a willful violation of the 

Defense Production Act and other 

applicable statutes, this part, or an 

official action. 

§ 33.74 Violations, penalties, and 

remedies. 

(a) Willful violation of the provisions 

of title 1 or section 705 or 707 of the 

Defense Production Act, the priorities 

provisions of the Selective Service Act, 

this part, or an official action, is a crime 

and upon conviction, a person may be 

punished by fine or imprisonment, or 

both. The maximum penalty currently 

provided by the Defense Production Act 

is a $10,000 fine, or one year in prison, 

or both. The maximum penalty 

currently provided by the Selective 

Service Act is a $50,000 fine, or three 

years in prison, or both. 

(b) The Government may also seek an 

injunction from a court of appropriate 

jurisdiction to prohibit the continuance 

of any violation of, or to enforce 

compliance with, the Defense 

Production Act, this part, or an official 

action. 

(c) In order to secure the effective 

enforcement of the Defense Production 

Act and other applicable statutes, this 

part, and official actions, the following 

are prohibited: 

(1) No person may solicit, influence or 

permit another person to perform any 

act prohibited by, or to omit any act 

required by, the Defense Production Act 

and other applicable statutes, this part, 

or an official action. 

(2) No person may conspire or act in 

concert with any other person to 

perform any act prohibited by, or to 

omit any act required by, the Defense 

Production Act and other applicable 

statutes, this part, or an official action. 

(3) No person shall deliver any item 

or perform any service if the person 

knows or has reason to believe that the 

item will be accepted, redelivered, held, 

or used in violation of the Defense 

Production Act and other applicable 

statutes, this part, or an official action. 

In such instances, the person must 

immediately notify the Department of 

Transportation that, in accordance with 

this provision, delivery of the item or 

performance of the service has not been 

made. 

§ 33.75 Compliance conflicts. 

If compliance with any provision of 

the Defense Production Act and other 

applicable statutes, this part, or an 

official action would prevent a person 

from filling a rated order or from 

complying with another provision of the 

Defense Production Act and other 

applicable statutes, this part, or an 

official action, the person must 

immediately notify the Department of 

Transportation for resolution of the 

conflict. 

Subpart H—Adjustments, Exceptions, 

and Appeals 

§ 33.80 Adjustments or exceptions. 

(a) A person may submit a request to 

the Defense Production Act Activities 

Coordinator, Office of Intelligence 

Security, and Emergency Response, 

1200 New Jersey Avenue, SE., 

Washington, DC 20590, for an 

adjustment or exception on the ground 

that: 

(1) A provision of this part or an 

official action results in an undue or 

exceptional hardship on that person not 

suffered generally by others in similar 

situations and circumstances; or 

(2) The consequences of following a 

provision of this part or an official 

action are contrary to the intent of the 

Defense Production Act and other 

applicable statutes, or this part. 

(b) Each request for adjustment or 

exception must be in writing and 

contain a complete statement of all the 

facts and circumstances related to the 

provision of this part or official action 

from which adjustment or exception is 

sought and a full and precise statement 

of the reasons why relief should be 

provided. 

(c) The submission of a request for 

adjustment or exception shall not 

relieve any person from the obligation of 

complying with the provision of this 

part or official action in question while 

the request is being considered unless 

such interim relief is granted in writing 

by the Office of Intelligence, Security, 

and Emergency Response. 

(d) A decision of the Defense 

Production Act Activities Coordinator 

under this section may be appealed to 

the Assistant Secretary for 

Administration. (For information on the 

appeal procedure, see § 33.81.) 

§ 33.81 Appeals. 

(a) Any person who has had a request 

for adjustment or exception denied by 

the Defense Production Act Activities 

Coordinator under § 33.80, may appeal 

to the Department of Transportation’s 

Assistant Secretary for Administration, 

who shall review and reconsider the 

denial. 

(b)(1) Except as provided in paragraph 

(b)(2) if this section, an appeal must be 

received by the Assistant Secretary for 

Administration no later than 45 days 

after receipt of a written notice of denial 

from the Defense Production Act 

Activities Coordinator. After this 45-day 

period, an appeal may be accepted at 

the discretion of the Assistant Secretary 

for Administration for good cause 

shown. 


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(2) For requests for adjustment or 

exception involving rated orders placed 

for the purpose of emergency 

preparedness, an appeal must be 

received by the Assistant Secretary for 

Administration, no later than five (5) 

days after receipt of a written notice of 

denial from the Defense Production Act 

Activities Coordinator. Contract 

performance under the order shall not 

be stayed pending resolution of the 

appeal. 

(c) Each appeal must be in writing 

and contain a complete statement of all 

the facts and circumstances related to 

the action appealed from, all necessary 

documents, and a full and precise 

statement of the reasons the decision 

should be modified or reversed. 

(d) In addition to the written materials 

submitted in support of an appeal, an 

appellant may request, in writing, an 

opportunity for an informal hearing. 

This request may be granted or denied 

at the discretion of the Assistant 

Secretary for Administration. 

(e) When a hearing is granted, the 

Assistant Secretary for Administration 

may designate an employee of the Office 

of the Senior Procurement Executive to 

conduct the hearing and to prepare a 

report. The hearing officer shall 

determine all procedural questions and 

impose such time or other limitations 

deemed reasonable. In the event that the 

hearing officer decides that a printed 

transcript is necessary, all expenses 

shall be borne by the appellant. 

(f) When determining an appeal, the 

Assistant Secretary for Administration 

may consider all information submitted 

during the appeal as well as any 

recommendations, reports, or other 

relevant information and documents 

available to the Department of 

Transportation, or consult with any 

other persons or groups. 

(g) The submission of an appeal under 

this section shall not relieve any person 

from the obligation of complying with 

the provision of this part or official 

action in question while the appeal is 

being considered unless such relief is 

granted in writing by the Assistant 

Secretary for Administration. 

(h) The decision of the Assistant 

Secretary for Administration shall be 

made within five (5) working days after 

receipt of the appeal, or within one (1) 

working day for appeals pertaining to 

emergency preparedness and shall be 

the final administrative action. It shall 

be issued to the appellant in writing 

with a statement of the reasons for the 

decision. 

Subpart I—Miscellaneous Provisions 

§ 33.90 Protection against claims. 

A person shall not be held liable for 

damages or penalties for any act or 

failure to act resulting directly or 

indirectly from compliance with any 

provision of this part, or an official 

action, notwithstanding that such 

provision or action shall subsequently 

be declared invalid by judicial or other 

competent authority. 

§ 33.91 Records and reports. 

(a) Persons are required to make and 

preserve for at least three years, accurate 

and complete records of any transaction 

covered by this part or an official action. 

(b) Records must be maintained in 

sufficient detail to permit the 

determination, upon examination, of 

whether each transaction complies with 

the provisions of this part or any official 

action. However, this part does not 

specify any particular method or system 

to be used. 

(c) Records required to be maintained 

by this part must be made available for 

examination on demand by duly 

authorized representatives of the 

Department of Transportation as 

provided in § 33.71. 

(d) In addition, persons must develop, 

maintain, and submit any other records 

and reports to the Department of 

Transportation that may be required for 

the administration of the Defense 

Production Act and other applicable 

statutes, and this part. 

(e) Section 705(d) of the Defense 

Production Act, as implemented by 

Executive Order 12919, provides that 

information obtained under this section 

which the Secretary deems confidential, 

or with reference to which a request for 

confidential treatment is made by the 

person furnishing such information, 

shall not be published or disclosed 

unless the Secretary determines that the 

withholding of this information is 

contrary to the interest of the national 

defense. Information required to be 

submitted to the Department of 

Transportation in connection with the 

enforcement or administration of the 

Defense Production Act, this part, or an 

official action, is deemed to be 

confidential under section 705(d) of the 

Defense Production Act and shall be 

handled in accordance with applicable 

Federal law. 

§ 33.92 Applicability of this part and 

official actions. 

(a) This part and all official actions, 

unless specifically stated otherwise, 

apply to transactions in any State, 

territory, or possession of the United 

States and the District of Columbia. 

(b) This part and all official actions 

apply not only to deliveries to other 

persons but also include deliveries to 

affiliates and subsidiaries of a person 

and deliveries from one branch, 

division, or section of a single entity to 

another branch, division, or section 

under common ownership or control. 

(c) This part and its schedules shall 

not be construed to affect any 

administrative actions taken by the 

Department of Transportation, or any 

outstanding contracts or orders placed 

pursuant to any of the parts, orders, 

schedules or delegations of authority 

previously issued by the Department of 

Transportation pursuant to authority 

granted by the President to the 

Department under in the Defense 

Production Act. Such actions, contracts, 

or orders shall continue in full force and 

effect under this part unless modified or 

terminated by proper authority. 

§ 33.93 Communications. 

All communications concerning this 

part, including requests for copies of the 

part and explanatory information, 

requests for guidance or clarification, 

and requests for adjustment or 

exception shall be addressed to the 

Defense Production Act Activities 

Coordinator, Office of Intelligence, 

Security and Emergency Response, 1200 

New Jersey Avenue, SE., Washington, 

DC 20590. 

BILLING CODE 4910–9X–P 


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Appendix II to Part 33—Schedule 1 

Approved Programs 

The programs listed in this schedule have 

been approved for priorities and allocations 

support under this part by the Administrator 

of FEMA. They have equal preferential 

status. 

Approved Program 

Program Identification Symbol 

[FR Doc. 2011–3209 Filed 2–14–11; 8:45 am] 

BILLING CODE 4910–9X–C 

DEPARTMENT OF TRANSPORTATION 

Federal Railroad Administration 

49 CFR Parts 229 and 238 

[Docket Nos. FRA–2009–0094 and FRA– 

2009–0095, Notice No. 2] 

RIN 2130–AC16 

Locomotive Safety Standards; 

Correction 

AGENCY: Federal Railroad 

Administration (FRA), DOT. 

ACTION: Proposed rule; correction. 

SUMMARY: FRA is notifying the public 

that the correct docket number for the 

Locomotive Safety Standards notice of 

proposed rulemaking (NPRM) is FRA– 

2009–0094. The NPRM issued on 

January 12, 2011, incorrectly identified 

docket number FRA–2009–0095 as the 

public docket for this rulemaking 

proceeding. FRA is requesting that all 

comments related to this proceeding be 

submitted to FRA–2009–0094. 

DATES: The comment date for the 

proposed rule published January 12, 

2011, at 76 FR 2200, remains March 14, 

2011. 

FOR FURTHER INFORMATION CONTACT: 

Michael Masci, Trial Attorney, Office of 

Chief Counsel, FRA, 1200 New Jersey 

Avenue, SE., Washington, DC 

(telephone 202–493–6037). 

ADDRESSES: Comments: Comments 

related to Docket No. FRA–2009–0094, 

may be submitted by any of the 

following methods: Web Site: Federal 

eRulemaking Portal, http:// 

www.regulations.gov. Follow the online 

instructions for submitting comments. 

• Fax: 202–493–2251. 

• Mail: Docket Management Facility, 

U.S. Department of Transportation, 1200 

New Jersey Avenue, SE., W12–140, 

Washington, DC 20590. 

• Hand Delivery: Room W12–140 on 

the Ground level of the West Building, 

1200 New Jersey Avenue, SE., W12–140, 

Washington, DC between 9 a.m. and 

5 p.m. Monday through Friday, except 

Federal holidays. 

• Federal eRulemaking Portal: Go to 

http://www.regulations.gov. Follow the 

online instructions for submitting 

comments. 

Instructions: All submissions must 

include the agency name and docket 

number or Regulatory Identification 

Number (RIN) for this rulemaking. Note 

that all comments received will be 

posted without change to http:// 

www.regulation.gov including any 

personal information. FRA wishes to 

inform all potential commenters that 

anyone is able to search the electronic 

form of all comments received into any 

agency docket by the name of the 

individual submitting the comment (or 

signing the comment, if submitted on 

behalf of an association, business, labor 

union, etc.). You may review DOT’s 

complete Privacy Act Statement in the 

Federal Register published on April 11, 

2000 (Volume 65, Number 70; Pages 

19477–78) or you may visit http:// 

dms.dot.gov. 

Docket: For access to the docket to 

read background documents or 

comments received, go to http:// 

www.regulations.gov at any time or to 

Room W12–140 on the Ground level of 

the West Building, 1200 New Jersey 

Avenue, SE., Washington, DC between 

9 a.m. and 5 p.m. Monday through 

Friday, except Federal holidays. 

SUPPLEMENTARY INFORMATION: On 

January 12, 2011, FRA published an 

NPRM related to locomotive safety 

standards. See 76 FR 2200. The NPRM 

established a public docket to receive 

comments in response to FRA’s 

proposal related to locomotive safety 

standards. That NPRM mistakenly lists 

FRA–2009–0095 (‘‘incorrect docket’’) as 

the docket number for the NPRM. The 

correct docket number for this 

proceeding is FRA–2009–94 (‘‘correct 

docket’’). FRA requests that comments to 

the NPRM be submitted to the correct 

docket. 

Comments submitted to the incorrect 

docket will be fully considered as part 

of the locomotive safety standards 

rulemaking. Because the incorrect 

docket is listed in the January 12, 2011, 

Federal Register document issuing the 

NPRM, comments submitted to the 

incorrect docket will remain valid. FRA 

will transfer all comments and 

information that are received in the 

incorrect docket to the correct docket. 

As such, interested parties that wish to 

read comments to the NPRM should 

access docket FRA–2009–0094 to locate 

the comments. 

Issued in Washington, DC, on February 9, 

2011. 

Robert Lauby, 

Deputy Associate Administrator for 

Regulatory and Legislative Operations. 

[FR Doc. 2011–3260 Filed 2–14–11; 8:45 am] 

BILLING CODE 4910–06–P 

DEPARTMENT OF TRANSPORTATION 

Surface Transportation Board 

49 CFR Part 1201 

[Docket No. EP 706] 

Reporting Requirements for Positive 

Train Control Expenses and 

Investments 

AGENCY: Surface Transportation Board, 

DOT. 

ACTION: Notice of intent to institute a 

rulemaking proceeding. 

SUMMARY: In a decision served on 

February 10, 2011, the Board granted a 

petition by the Union Pacific Railroad 

Company (UP) to institute a rulemaking 

proceeding to explore whether the 

Board should require Class I railroads to 

report separately how much each 

railroad is spending on the 

development, installation, and 

maintenance of Positive Train Control, a 

federally mandated safety system that 

will automatically stop or slow a train 

before an accident can occur. Several 

parties filed comments in reply to UP’s 

petition. The Board will address the 

arguments and issues raised in those 

filings in a subsequent decision. The 

Board’s decision makes no 

determination on the merits of UP’s 

specific proposal. 

DATES: The Board’s decision became 

effective on February 10, 2011. The 

Board will establish further procedures 

for public comment in a subsequent 

decision. 

FOR FURTHER INFORMATION CONTACT: 

Valerie Quinn, (202) 245–0382. Federal 

Information Relay Service (FIRS) for the 

hearing impaired, (800) 877–8339. 

SUPPLEMENTARY INFORMATION: 

Additional information is contained in 

the Board’s February 10, 2011, decision, 

which is available on our Web site at 

http://www.stb.dot.gov. Copies of the 

decision may be purchased by 

contacting the Board’s Office of Public 

Assistance, Governmental Affairs, and 

Compliance at (202) 245–0236. 

Assistance for the hearing impaired is 

available through FIRS at (800) 877– 

8339. 

This action will not significantly 

affect either the quality of the human 


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