cfr_sections
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| section_id ▼ | title_number | title_name | chapter | subchapter | part_number | part_name | subpart | subpart_name | section_number | section_heading | agency | authority | source_citation | amendment_citations | full_text |
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| 21:21:5.0.1.1.14.2.1.1 | 21 | Food and Drugs | I | D | 333 | PART 333—TOPICAL ANTIMICROBIAL DRUG PRODUCTS FOR OVER-THE-COUNTER HUMAN USE | B | Subpart B—First Aid Antibiotic Drug Products | § 333.101 Scope. | FDA | (a) An over-the-counter first aid antibiotic drug product in a form suitable for topical administration is generally recognized as safe and effective and is not misbranded if it meets each of the conditions in this subpart and each of the general conditions established in § 330.1. (b) References in this subpart to regulatory sections of the Code of Federal Regulations are to chapter I of title 21 unless otherwise noted. | ||||
| 21:21:5.0.1.1.14.2.1.2 | 21 | Food and Drugs | I | D | 333 | PART 333—TOPICAL ANTIMICROBIAL DRUG PRODUCTS FOR OVER-THE-COUNTER HUMAN USE | B | Subpart B—First Aid Antibiotic Drug Products | § 333.103 Definitions. | FDA | [52 FR 47322, Dec. 11, 1987, as amended at 64 FR 403, Jan. 5, 1999] | As used in this subpart: First aid antibiotic. An antibiotic-containing drug product applied topically to the skin to help prevent infection in minor cuts, scrapes, and burns. | |||
| 21:21:5.0.1.1.14.2.1.3 | 21 | Food and Drugs | I | D | 333 | PART 333—TOPICAL ANTIMICROBIAL DRUG PRODUCTS FOR OVER-THE-COUNTER HUMAN USE | B | Subpart B—First Aid Antibiotic Drug Products | § 333.110 First aid antibiotic active ingredients. | FDA | [52 FR 47322, Dec. 11, 1987, as amended at 53 FR 18838, May 25, 1988; 64 FR 403, Jan. 5, 1999] | The product consists of any of the following active ingredients within the specified concentration established for each ingredient and in the specified dosage form: (a) Bacitracin ointment containing, in each gram, 500 units of bacitracin in a suitable ointment base. (b) Bacitracin zinc ointment containing, in each gram, 500 units of bacitracin zinc in a suitable ointment base. (c) Chlortetracycline hydrochloride ointment containing, in each gram, 30 milligrams of chlortetracycline hydrochloride in a suitable ointment base. (d) Neomycin sulfate ointment containing, in each gram, 3.5 milligrams of neomycin in a suitable water soluble or oleaginous ointment base. (e) Neomycin sulfate cream containing, in each gram, 3.5 milligrams of neomycin in a suitable cream base. (f) Tetracycline hydrochloride ointment containing, in each gram, 30 milligrams of tetracycline hydrochloride in a suitable ointment base. | |||
| 21:21:5.0.1.1.14.2.1.4 | 21 | Food and Drugs | I | D | 333 | PART 333—TOPICAL ANTIMICROBIAL DRUG PRODUCTS FOR OVER-THE-COUNTER HUMAN USE | B | Subpart B—First Aid Antibiotic Drug Products | § 333.120 Permitted combinations of active ingredients. | FDA | [52 FR 47322, Dec. 11, 1987; 52 FR 48792, Dec. 24, 1987, as amended at 53 FR 18838, May 25, 1988; 55 FR 9722, Mar. 15, 1990; 55 FR 40381, Oct. 3, 1990; 55 FR 50172, Dec. 5, 1990; 64 FR 403, Jan. 5, 1999] | The following combinations are permitted provided each active ingredient is present within the established concentration and in the specified dosage form, and the product is labeled in accordance with § 333.160. (a) Combinations of antibiotic active ingredients. (1) Bacitracin-neomycin sulfate ointment containing, in each gram, 500 units of bacitracin and 3.5 milligrams of neomycin in a suitable ointment base. (2) Bacitracin-neomycin sulfate-polymyxin B sulfate ointment containing, in each gram, in a suitable ointment base the following: (i) 500 units of bacitracin, 3.5 milligrams of neomycin, and 5,000 units of polymyxin B; or (ii) 400 units of bacitracin, 3.5 milligrams of neomycin, and 5,000 units of polymyxin B; (3) Bacitracin-polymyxin B sulfate topical aerosol containing, in each gram, 500 units of bacitracin and 5,000 units of polymyxin B in a suitable vehicle, packaged in a pressurized container with suitable inert gases. (4) Bacitracin zinc-neomycin sulfate ointment containing, in each gram, 500 units of bacitracin and 3.5 milligrams of neomycin in a suitable ointment base. (5) Bacitracin zinc-neomycin sulfate-polymyxin B sulfate ointment containing, in each gram, in a suitable ointment base the following: (i) 400 units of bacitracin, 3 milligrams of neomycin, and 8,000 units of polymyxin B; or (ii) 400 units of bacitracin, 3.5 milligrams of neomycin, and 5,000 units of polymyxin B; or (iii) 500 units of bacitracin, 3.5 milligrams of neomycin, and 5,000 units of polymyxin B; or (iv) 500 units of bacitracin, 3.5 milligrams of neomycin, and 10,000 units of polymyxin B; (6) Bacitracin zinc-polymyxin B sulfate ointment containing, in each gram, 500 units of bacitracin and 10,000 units of polymyxin B in a suitable ointment base. (7) Bacitracin zinc-polymyxin B sulfate topical aerosol containing, in each gram, 120 units of bacitracin and 2,350 units of polymyxin B in a suitable vehicle, packaged in a pressurized container with suitable inert gases. (8) Bacitracin zinc-polymyxin B sulfate topica… | |||
| 21:21:5.0.1.1.14.2.1.5 | 21 | Food and Drugs | I | D | 333 | PART 333—TOPICAL ANTIMICROBIAL DRUG PRODUCTS FOR OVER-THE-COUNTER HUMAN USE | B | Subpart B—First Aid Antibiotic Drug Products | § 333.150 Labeling of first aid antibiotic drug products. | FDA | [52 FR 47332, Dec. 11, 1987, as amended at 61 FR 58472, Nov. 15, 1996] | (a) Statement of identity. The labeling of the product contains the established name of the drug, if any, and identifies the product as a “first aid antibiotic.” (b) Indications. The labeling of the product states, under the heading “Indications,” the following: “First aid to help” [select one of the following: “prevent,” (“decrease” (“the risk of” or “the chance of”)), (“reduce” (“the risk of” or “the chance of”)), “guard against,” or “protect against”] [select one of the following: “infection,” “bacterial contamination,” or “skin infection”] “in minor cuts, scrapes, and burns.” Other truthful and nonmisleading statements describing only the indications for use that have been established and listed in this paragraph (b), may also be used, as provided in § 330.1(c)(2), subject to the provisions of section 502 of the act relating to misbranding and the prohibition in section 301(d) of the act against the introduction or delivery for introduction into interstate commerce of unapproved new drugs in violation of section 505(a) of the act. (c) Warnings. The labeling of the product contains the following warnings under the heading “Warnings”: (1) “For external use only. Do not use in the eyes or apply over large areas of the body. In case of deep or puncture wounds, animal bites, or serious burns, consult a doctor.” (2) For products containing chlortetracycline hydrochloride or tetracycline hydrochloride. “Stop use and consult a doctor if the condition persists or gets worse. Do not use longer than 1 week unless directed by doctor.” (3) For any product containing bacitracin, bacitracin zinc, neomycin, neomycin sulfate, polymyxin B, and/or polymyxin B sulfate. “Stop use and consult a doctor if the condition persists or gets worse, or if a rash or other allergic reaction develops. Do not use if you are allergic to any of the ingredients. Do not use longer than 1 week unless directed by a doctor.” (d) Directions. The labeling of the product contains the following statements under the heading “Directions”:… | |||
| 21:21:5.0.1.1.14.2.1.6 | 21 | Food and Drugs | I | D | 333 | PART 333—TOPICAL ANTIMICROBIAL DRUG PRODUCTS FOR OVER-THE-COUNTER HUMAN USE | B | Subpart B—First Aid Antibiotic Drug Products | § 333.160 Labeling of permitted combinations of active ingredients. | FDA | Statements of identity, indications, warnings, and directions for use, respectively, applicable to each ingredient in the product may be combined to eliminate duplicative words or phrases so that the resulting information is clear and understandable. (a) Statement of identity. For a combination drug product that has an established name, the labeling of the product states the established name of the combination drug product, followed by the statement of identity for each ingredient in the combination, as established in the statement of identity sections of the applicable OTC drug monographs. For a combination drug product that does not have an established name, the labeling of the product states the statement of identity for each ingredient in the combination, as established in the statement of identity sections of the applicable OTC drug monographs. (b) Indications. The labeling of the product states, under the heading “Indications,” the indication(s) for each ingredient in the combination, as established in the “Indications” sections of the applicable OTC drug monographs, unless otherwise stated in this paragraph. Other truthful and nonmisleading statements, describing only the indications for use that have been established and listed in this paragraph (b), may also be used, as provided in § 330.1(c)(2), subject to the provisions of section 502 of the act relating to misbranding and the prohibition in section 301(d) of the act against the introduction or delivery for introduction into interstate commerce of unapproved new drugs in violation of section 505(a) of the act. (1) For permitted combinations identified in § 333.120(a). The indications in § 333.150 should be used. (2) For permitted combinations identified in § 333.120(b). In addition to the required indication identified in § 333.150, the labeling of the product may state, under the heading “Indications,” the following additional indication: “First aid for the temporary relief of” (select one of the following: “pain,” “discomfort,” “pain or d… | ||||
| 21:21:5.0.1.1.14.3.1.1 | 21 | Food and Drugs | I | D | 333 | PART 333—TOPICAL ANTIMICROBIAL DRUG PRODUCTS FOR OVER-THE-COUNTER HUMAN USE | C | Subpart C—Topical Antifungal Drug Products | § 333.201 Scope. | FDA | (a) An over-the-counter antifungal drug product in a form suitable for topical administration is generally recognized as safe and effective and is not misbranded if it meets each of the conditions in this subpart and each general condition established in § 330.1 of this chapter. (b) Reference in this subpart to regulatory sections of the Code of Federal Regulations are to chapter I of title 21 unless otherwise noted. | ||||
| 21:21:5.0.1.1.14.3.1.2 | 21 | Food and Drugs | I | D | 333 | PART 333—TOPICAL ANTIMICROBIAL DRUG PRODUCTS FOR OVER-THE-COUNTER HUMAN USE | C | Subpart C—Topical Antifungal Drug Products | § 333.203 Definitions. | FDA | As used in this subpart: (a) Antifungal. A drug which inhibits the growth and reproduction of fungal cells and decreases the number of fungi present. (b) Athlete's foot. An infection of the feet caused by certain dermatophytic fungi. (c) Dermatophyte. A fungus that invades and lives upon the skin or in the hair or nails. (d) Fungus. Any of a large division of plants, including dermatophytes, yeasts, and molds, characterized by a simple cell structure and the absence of chlorophyll. (e) Jock itch. A chronic and recurrent infection caused by certain dermatophytic fungi; affects the upper, inner thighs and sometimes extends to the groin and the pubic area; the condition most frequently occurs in men, but may also occur in women. (f) Ringworm. A skin infection caused by certain dermatophytic fungi. | ||||
| 21:21:5.0.1.1.14.3.1.3 | 21 | Food and Drugs | I | D | 333 | PART 333—TOPICAL ANTIMICROBIAL DRUG PRODUCTS FOR OVER-THE-COUNTER HUMAN USE | C | Subpart C—Topical Antifungal Drug Products | § 333.210 Antifungal active ingredients. | FDA | [58 FR 49898, Sept. 23, 1993, as amended at 67 FR 5943, Feb. 8, 2002] | The active ingredient of the product consists of any one of the following within the specified concentration established for each ingredient: (a) Clioquinol 3 percent. (b) Haloprogin 1 percent. (c) Miconazole nitrate 2 percent. (d) Povidone-iodine 10 percent. (e) Tolnaftate 1 percent. (f) Undecylenic acid, calcium undecylenate, copper undecylenate, and zinc undecylenate may be used individually or in any ratio that provides a total undecylenate concentration of 10 to 25 percent. (g) Clotrimazole 1 percent. | |||
| 21:21:5.0.1.1.14.3.1.4 | 21 | Food and Drugs | I | D | 333 | PART 333—TOPICAL ANTIMICROBIAL DRUG PRODUCTS FOR OVER-THE-COUNTER HUMAN USE | C | Subpart C—Topical Antifungal Drug Products | § 333.250 Labeling of antifungal drug products. | FDA | [58 FR 49898, Sept. 23, 1993, as amended at 65 FR 52305, Aug. 29, 2000] | (a) Statement of identity. The labeling of the product contains the established name of the drug, if any, and identifies the product as an “antifungal.” (b) Indications. The labeling of the product states, under the heading “Indications,” the phrase listed in paragraph (b)(1)(i) of this section and may contain the additional phrase listed in paragraph (b)(1)(ii) of this section. Other truthful and nonmisleading statements, describing only the indications for use that have been established in paragraph (b) of this section, may also be used, as provided in § 330.1(c)(2) of this chapter, subject to the provisions of section 502 of the Federal Food, Drug, and Cosmetic Act (the act) relating to misbranding and the prohibition in section 301(d) of the act against the introduction or delivery for introduction into interstate commerce of unapproved new drugs in violation of section 505(a) of the act. (1) For products containing any ingredient identified in § 333.210 labeled for the treatment of athlete's foot, jock itch, and ringworm. (i) (Select one of the following: “Treats,” “For the treatment of,” “For effective treatment of,” “Cures,” “For the cure of,” “Clears up,” or “Proven clinically effective in the treatment of”) “most” (select one condition from any one or more of the following groups of conditions: (A) “Athlete's foot,” athlete's foot (dermatophytosis),” “athlete's foot (tinea pedis),” or “tinea pedis (athlete's foot)”; (B) “Jock itch,” “jock itch (tinea cruris),” or “tinea cruris (jock itch)”; or (C) “Ringworm,” “ringworm (tinea corporis),” or “tinea corporis (ringworm).”) (ii) In addition to the information identified in paragraph (b)(1)(i) of this section, the labeling of the product may contain the following statement: (Select one of the following: “Relieves,” “For relief of,” “For effective relief of,” or “Soothes,”) (select one or more of the following: “Itching,” “scaling,” “cracking,” “burning,” “redness,” “soreness,” “irritation,” “discomfort,” “chafing associated with jock itch,” “itchy… | |||
| 21:21:5.0.1.1.14.3.1.5 | 21 | Food and Drugs | I | D | 333 | PART 333—TOPICAL ANTIMICROBIAL DRUG PRODUCTS FOR OVER-THE-COUNTER HUMAN USE | C | Subpart C—Topical Antifungal Drug Products | § 333.280 Professional labeling. | FDA | The labeling provided to health professionals (but not to the general public) may contain the following additional indication: (a) For products containing haloprogin or miconazole nitrate identified in § 333.210 (a) and (c). “For the treatment of superficial skin infections caused by yeast ( Candida albicans ).” (b) [Reserved] | ||||
| 21:21:5.0.1.1.14.4.1.1 | 21 | Food and Drugs | I | D | 333 | PART 333—TOPICAL ANTIMICROBIAL DRUG PRODUCTS FOR OVER-THE-COUNTER HUMAN USE | D | Subpart D—Topical Acne Drug Products | § 333.301 Scope. | FDA | (a) An over-the-counter acne drug product in a form suitable for topical application is generally recognized as safe and effective and is not misbranded if it meets each of the conditions in this subpart and each general condition established in § 330.1 of this chapter. (b) References in this subpart to regulatory sections of the Code of Federal Regulations are to chapter I of title 21 unless otherwise noted. | ||||
| 21:21:5.0.1.1.14.4.1.2 | 21 | Food and Drugs | I | D | 333 | PART 333—TOPICAL ANTIMICROBIAL DRUG PRODUCTS FOR OVER-THE-COUNTER HUMAN USE | D | Subpart D—Topical Acne Drug Products | § 333.303 Definitions. | FDA | As used in this subpart: (a) Acne. A disease involving the oil glands and hair follicles of the skin which is manifested by blackheads, whiteheads, acne pimples, and acne blemishes. (b) Acne blemish. A flaw in the skin resulting from acne. (c) Acne drug product. A drug product used to reduce the number of acne blemishes, acne pimples, blackheads, and whiteheads. (d) Acne pimple. A small, prominent, inflamed elevation of the skin resulting from acne. (e) Blackhead. A condition of the skin that occurs in acne and is characterized by a black tip. (f) Whitehead. A condition of the skin that occurs in acne and is characterized by a small, firm, whitish elevation of the skin. | ||||
| 21:21:5.0.1.1.14.4.1.3 | 21 | Food and Drugs | I | D | 333 | PART 333—TOPICAL ANTIMICROBIAL DRUG PRODUCTS FOR OVER-THE-COUNTER HUMAN USE | D | Subpart D—Topical Acne Drug Products | § 333.310 Acne active ingredients. | FDA | [75 FR 9776, Mar. 4, 2010] | The active ingredient of the product consists of any of the following: (a) Benzoyl peroxide, 2.5 to 10 percent. (b) Resorcinol, 2 percent, when combined with sulfur in accordance with § 333.320(a). (c) Resorcinol monoacetate, 3 percent, when combined with sulfur in accordance with § 333.320(b). (d) Salicylic acid, 0.5 to 2 percent. (e) Sulfur, 3 to 10 percent. (f) Sulfur, 3 to 8 percent, when combined with resorcinol or resorcinol monoacetate in accordance with § 333.320. | |||
| 21:21:5.0.1.1.14.4.1.4 | 21 | Food and Drugs | I | D | 333 | PART 333—TOPICAL ANTIMICROBIAL DRUG PRODUCTS FOR OVER-THE-COUNTER HUMAN USE | D | Subpart D—Topical Acne Drug Products | § 333.320 Permitted combinations of active ingredients. | FDA | [75 FR 9776, Mar. 4, 2010] | (a) Resorcinol identified in § 333.310(b) may be combined with sulfur identified in § 333.310(f). (b) Resorcinol monoacetate identified in § 333.310(c) may be combined with sulfur identified in § 333.310(f). | |||
| 21:21:5.0.1.1.14.4.1.5 | 21 | Food and Drugs | I | D | 333 | PART 333—TOPICAL ANTIMICROBIAL DRUG PRODUCTS FOR OVER-THE-COUNTER HUMAN USE | D | Subpart D—Topical Acne Drug Products | § 333.350 Labeling of acne drug products. | FDA | [56 FR 41019, Aug. 16, 1991, as amended at 75 FR 9776, Mar. 4, 2010] | (a) Statement of identity. The labeling of the product contains the established name of the drug, if any, and identifies the product as an “acne medication,” “acne treatment,” “acne medication” (insert dosage form, e.g., “cream,” “gel,” “lotion,” or “ointment”), or “acne treatment” (insert dosage form, e.g., “cream,” “gel,” “lotion,” or “ointment”). (b) Indications. The labeling of the product states, under the heading “Indications,” the phrase listed in paragraph (b)(1) of this section and may contain any of the additional phrases listed in paragraph (b)(2) of this section. Other truthful and nonmisleading statements, describing only the indications for use that have been established and listed in paragraph (b) of this section, may also be used, as provided in § 330.1(c)(2) of this chapter, subject to the provisions of section 502 of the Federal Food, Drug, and Cosmetic Act (the act) relating to misbranding and the prohibition in section 301(d) of the act against the introduction or delivery for introduction into interstate commerce of unapproved new drugs in violation of section 505(a) of the act. (1) “For the” (select one of the following: “management” or “treatment”) “of acne.” (2) In addition to the information identified in paragraph (b)(1) of this section, the labeling of the product may contain any one or more of the following statements: (i) (Select one of the following: “Clears,” “Clears up,” “Clears up most,” “Dries,” “Dries up,” “Dries and clears,” “Helps clear,” “Helps clear up,” “Reduces the number of,” or “Reduces the severity of”) (select one or more of the following: “acne blemishes,” “acne pimples,” “blackheads,” or “whiteheads”) which may be followed by “and allows skin to heal.” (ii) “Penetrates pores to” (select one of the following: “eliminate most,” “control,” “clear most,” or “reduce the number of”) (select one or more of the following: “acne blemishes,” “acne pimples,” “blackheads,” or “whiteheads”). (iii) “Helps keep skin clear of new” (select one or more of the following: “acn… | |||
| 33:33:3.0.1.1.27.1.1.1 | 33 | Navigation and Navigable Waters | II | 333 | PART 333—PROCESSING OF DEPARTMENT OF THE ARMY PERMITS AND 33 U.S.C. 408 PERMISSIONS, NATIONAL ENVIRONMENTAL POLICY ACT IMPLEMENTING PROCEDURES | A | Subpart A—Purpose and Policy | § 333.1 Purpose and policy. | USACE | (a) The purpose of these procedures is to integrate the National Environmental Policy Act (NEPA) into the U.S. Army Corps of Engineers' (Corps) decision-making processes for evaluating applications from other, non-Corps entities for authorization by the Corps. Specifically, the procedures: describe the process by which a District or Division Engineer determines what actions are subject to NEPA's procedural requirements and the applicable level of NEPA review; ensure that relevant environmental information is identified and considered early in the process in order to ensure informed decision making; enable District Engineers to conduct coordinated, consistent, predictable and timely environmental reviews; reduce unnecessary burdens and delays; and implement NEPA's mandates regarding lead and cooperating agency roles, page and time limits, and sponsor preparation of environmental documents. (b) This part sets forth the Corps procedures and practices for implementing NEPA when considering Department of the Army permit applications under 33 U.S.C. 1344 (Clean Water Act, section 404); 33 U.S.C. 401 (Rivers and Harbors Act of 1899, section 9); 33 U.S.C. 403 (Rivers and Harbors Act of 1899, section 10); and 33 U.S.C. 1413 (Marine Protection, Research, and Sanctuaries Act of 1972, section 103) and requests for permission under 33 U.S.C. 408 (Rivers and Harbors Act of 1899, section 14). The Regulatory Program of the Corps implements 33 U.S.C. 1344, 33 U.S.C. 401, and 33 U.S.C. 1413 and references to the Regulatory Program in this part refer to the processing of permit applications under those authorities. As used in this part, “permit” means an authorization under any of the authorities in this paragraph, and “application” means any request for authorization under any of the above identified authorities. This part further explains the Corps' interpretation of certain key terms in NEPA. It does not, nor does it intend to, govern the rights and obligations of any party outside the government. It does, however, establish th… | |||||
| 33:33:3.0.1.1.27.1.1.2 | 33 | Navigation and Navigable Waters | II | 333 | PART 333—PROCESSING OF DEPARTMENT OF THE ARMY PERMITS AND 33 U.S.C. 408 PERMISSIONS, NATIONAL ENVIRONMENTAL POLICY ACT IMPLEMENTING PROCEDURES | A | Subpart A—Purpose and Policy | § 333.2 Applicability. | USACE | (a) Applicability. This Part applies to all Corps elements processing applications for Department of the Army Permits or requests for permission under the authorities listed in 33 CFR 333.1(b). (b) Authority. NEPA imposes certain procedural requirements on the exercise of the Corps' existing legal authority in relevant circumstances. Nothing contained in these procedures is intended or should be construed to limit the Corps' other authorities or legal responsibilities. | |||||
| 33:33:3.0.1.1.27.2.1.1 | 33 | Navigation and Navigable Waters | II | 333 | PART 333—PROCESSING OF DEPARTMENT OF THE ARMY PERMITS AND 33 U.S.C. 408 PERMISSIONS, NATIONAL ENVIRONMENTAL POLICY ACT IMPLEMENTING PROCEDURES | B | Subpart B—NEPA and General Concepts | § 333.11 Determining when NEPA applies. | USACE | District Engineers will determine that NEPA does not apply to a proposed agency permitting action when: (a) The activities or decision do not result in final agency action under the Administrative Procedure Act, 5 U.S.C. 704, or any other relevant statute that includes a finality requirement; (b) The proposed activity or decision is exempted from NEPA by law; (c) Compliance with NEPA would clearly and fundamentally conflict with the requirements of another provision of law; (d) In circumstances where Congress by statute has prescribed decisional criteria with sufficient completeness and precision such that the Corps retains no residual discretion to alter its action based on the consideration of environmental factors, then that function of the Corps is nondiscretionary within the meaning of NEPA section 106(a)(4) and/or section 111(10)(B)(vii) (42 U.S.C. 4336(a)(4) and 4336e(10)(B)(vii), respectively), and NEPA does not apply to the action in question; (e) The proposed action is an action for which another statute's requirements serve the function of agency compliance with the Act; or (f) The proposed action is not a “major Federal action,” which is defined at 42 U.S.C. 4336e(10). Additionally, the terms “major” and “Federal action” each have independent force. NEPA applies only when both of these two criteria are met. Such a determination is specific to the facts and circumstances of each individual situation and is reserved to the judgment of the District Engineer in each instance. In addition to the illustrative general categories in NEPA section 111(10), 42 U.S.C. 4336e(10), the Corps has determined that the following non-exhaustive list of Corps activities related to the Regulatory Program and 33 U.S.C. 408 are presumptively not subject to NEPA as not meeting the definition of a major Federal action: (1) Preliminary Jurisdictional Determinations; (2) Approved Jurisdictional Determinations; (3) Determination of whether an activity requires a Corps permit or permission; (4) Aquatic resource delineati… | |||||
| 33:33:3.0.1.1.27.2.1.2 | 33 | Navigation and Navigable Waters | II | 333 | PART 333—PROCESSING OF DEPARTMENT OF THE ARMY PERMITS AND 33 U.S.C. 408 PERMISSIONS, NATIONAL ENVIRONMENTAL POLICY ACT IMPLEMENTING PROCEDURES | B | Subpart B—NEPA and General Concepts | § 333.12 Determine the appropriate level of NEPA review. | USACE | (a) If the District Engineer determines under § 333.11 that NEPA applies to a proposed activity or decision, the District Engineer will then determine the appropriate level of NEPA review in the following sequence and manner. At all steps in the following process, the Corps will consider the proposed activity and its effects. (1) If the Corps has established, or adopted pursuant to NEPA section 109, 42 U.S.C. 4336c, a categorical exclusion that covers the proposed activity, the District Engineer will analyze whether to apply the categorical exclusion to the proposed activity and apply the categorical exclusion, if appropriate, pursuant to § 333.14(e). (2) If another agency has already established a categorical exclusion that covers the proposed activity, the District Engineer will consider whether to recommend that the Headquarters, U.S. Army Corps of Engineers adopt that exclusion pursuant to § 333.14(c) so that it can be applied to the proposed activity at issue, and so that Headquarters may consider applying to future activities of that type. (3) If the proposed activity warrants the establishment of a new categorical exclusion, or the revision of an existing categorical exclusion, pursuant to § 333.14(b), the Chief of Engineers will consider whether to so establish or revise, and then apply the categorical exclusion to the proposed action pursuant to § 333.14(e). (4) If the District Engineer cannot apply a categorical exclusion to the proposed activity consistent with paragraphs (a)(1)-(3), the District Engineer will determine the appropriate level of review, i.e., whether the proposed activity warrants preparation of an environmental assessment or an environmental impact statement. Most activities requiring a Corps permit that are not otherwise covered by a categorical exclusion normally require only an environmental assessment. In determining the level of review, the District Engineer will consider the proposed action's reasonably foreseeable effects consistent with paragraph (b), and then will: (i… | |||||
| 33:33:3.0.1.1.27.2.1.3 | 33 | Navigation and Navigable Waters | II | 333 | PART 333—PROCESSING OF DEPARTMENT OF THE ARMY PERMITS AND 33 U.S.C. 408 PERMISSIONS, NATIONAL ENVIRONMENTAL POLICY ACT IMPLEMENTING PROCEDURES | B | Subpart B—NEPA and General Concepts | § 333.13 NEPA and agency decision-making. | USACE | (a) Process. The District Engineer will consider input received in response to the public notice, where public notice is required by the legal authority governing the proposed activity for which authorization is sought, advising interested parties of the proposed activity for which authorization is sought when determining the environmental effects that should be considered in the NEPA analysis. District Engineers will promote efficiency through the adoption or incorporation of existing applicable EAs and EISs and other relevant environmental analysis to the extent practicable. Information developed through the NEPA process will inform the District Engineer's decision on the permit application or request for permission. (b) Limitations on actions during the NEPA process. Except as provided in paragraph (c) of this section, until the Corps issues a record of decision or a finding of no significant impact, or makes a categorical exclusion determination, as applicable, the permit applicant should take no action concerning their application that would: (1) have an adverse environmental effect within an area under the jurisdiction of the Corps; or (2) limit the choice of reasonable alternatives. (c) If the Corps is considering an application from a non-Federal entity and becomes aware that the applicant is about to take an action within the Corps' jurisdiction that would meet either of the criteria in § 333.13(b), the Corps will promptly notify the applicant that the Corps will take appropriate action to ensure that the objectives and procedures of NEPA are achieved. (d) Coordination with the Applicant. (1) The District Engineer will: (i) Coordinate at the earliest reasonable time in the application review process to inform the applicant what information the District Engineer might need to comply with NEPA and, if the lead agency, establish a schedule for completing steps in the NEPA review process, consistent with NEPA's statutory deadlines and any internal agency NEPA schedule requirements; and (ii) Begi… | |||||
| 33:33:3.0.1.1.27.2.1.4 | 33 | Navigation and Navigable Waters | II | 333 | PART 333—PROCESSING OF DEPARTMENT OF THE ARMY PERMITS AND 33 U.S.C. 408 PERMISSIONS, NATIONAL ENVIRONMENTAL POLICY ACT IMPLEMENTING PROCEDURES | B | Subpart B—NEPA and General Concepts | § 333.14 Categorical exclusions. | USACE | (a) Generally. This section describes the process the Corps uses for establishing and revising categorical exclusions, for adopting other agencies' categorical exclusions, and for applying categorical exclusions to a proposed agency action. The Corps categorical exclusions, including Corps categorical exclusions specifically applicable to evaluating applications from other entities for authorization by the Corps established consistent with its NEPA procedures, any legislative categorical exclusions, and categorical exclusions adopted from other agencies, are listed in paragraph (g) in this section. (b) Establishing and revising categorical exclusions. To establish or revise a categorical exclusion, the Chief of Engineers will determine that the category of actions normally does not significantly affect the quality of the human environment. In making this determination, the Headquarters, U.S. Army Corps of Engineers will: (1) Develop a written record containing information to substantiate its determination; (2) Consult with CEQ on its proposed categorical exclusion, including the written record, for a period not to exceed 30 days prior to providing public notice as described in paragraph (b)(3) of this section; (3) Provide public notice in the Federal Register of the Corps' establishment or revisions of the categorical exclusion and where the record is available; and (4) Document the establishment or revision of the categorical exclusion in the Corps' implementing procedures at § 333.14(g). (c) Adopting categorical exclusions from other Federal agencies. (1) Consistent with NEPA section 109, 42 U.S.C. 4336c, the Corps may adopt a categorical exclusion listed in another agency's NEPA procedures. When adopting a categorical exclusion, the Headquarters, U.S. Army Corps of Engineers, in coordination with any recommending Districts, will: (i) Identify the categorical exclusion listed in another agency's NEPA procedures that covers its category of proposed or related actions; (ii) Consult with the agency… | |||||
| 33:33:3.0.1.1.27.2.1.5 | 33 | Navigation and Navigable Waters | II | 333 | PART 333—PROCESSING OF DEPARTMENT OF THE ARMY PERMITS AND 33 U.S.C. 408 PERMISSIONS, NATIONAL ENVIRONMENTAL POLICY ACT IMPLEMENTING PROCEDURES | B | Subpart B—NEPA and General Concepts | § 333.15 Environmental assessments. | USACE | (a) Generally. If an activity is subject to NEPA, as determined following the procedures in § 333.11, and unless the District Engineer finds that the proposed activity is excluded from having to prepare an environmental assessment or environmental impact statement pursuant to a categorical exclusion as determined following the procedures in § 333.14, or by another provision of law, the District Engineer will prepare an environmental assessment with respect to the proposed activity that does not have a reasonably foreseeable significant effect on the quality of the human environment, or if the significance of such effect is unknown. District Engineers must follow Congress' direction that environmental assessments are to be “concise.” NEPA section 106(b)(2); 42 U.S.C. 4336(b)(2). The environmental assessment should normally be combined with any other required documents including Clean Water Act, section 404(b)(1) guidelines documentation, any applicable public interest review, any statement of findings, a finding of no significant impact or a determination that an environmental impact statement is required. Environmental assessment as used throughout this part normally refers to this combined document. When the environmental assessment is a separate document, it must be completed prior to completion of the statement of finding. The District Engineer may delegate the signing of the NEPA document. Should the environmental assessment demonstrate that an environmental impact statement is necessary, the District Engineer shall follow the procedures outlined in subpart C of this part. In those cases where an environmental impact statement is required, an environmental assessment is not required. However, the District Engineer must document their reasons for requiring an environmental impact statement. (b) Elements. For the purpose of providing evidence and analysis for determining whether to prepare an environmental impact statement or a finding of no significant impact, environmental assessments will: (1) Briefly … | |||||
| 33:33:3.0.1.1.27.2.1.6 | 33 | Navigation and Navigable Waters | II | 333 | PART 333—PROCESSING OF DEPARTMENT OF THE ARMY PERMITS AND 33 U.S.C. 408 PERMISSIONS, NATIONAL ENVIRONMENTAL POLICY ACT IMPLEMENTING PROCEDURES | B | Subpart B—NEPA and General Concepts | § 333.16 Findings of no significant impact. | USACE | (a) The District Engineer will prepare a finding of no significant impact if the District Engineer determines, based on the environmental assessment, not to prepare an environmental impact statement because the proposed activity will not have significant effects. The finding of no significant impact will: (1) Be included in the environmental assessment; (2) Document the reasons why the District Engineer has determined that the selected alternative will not have a significant effect on the quality of the human environment; (3) If the District Engineer finds no significant effects based on mitigation, the mitigated finding of no significant impact will state any mitigation requirements enforceable by the agency or voluntary mitigation commitments that will be undertaken by the applicant to avoid significant effects; (4) Identify any other documents related to the finding of no significant impact; and (5) State that the District Engineer will not prepare an environmental impact statement, concluding the NEPA process for that permit application, request for permission, or mitigation instrument. (b) The District Engineer may publish notification of the environmental assessment and finding of no significant impact on a public website. | |||||
| 33:33:3.0.1.1.27.2.1.7 | 33 | Navigation and Navigable Waters | II | 333 | PART 333—PROCESSING OF DEPARTMENT OF THE ARMY PERMITS AND 33 U.S.C. 408 PERMISSIONS, NATIONAL ENVIRONMENTAL POLICY ACT IMPLEMENTING PROCEDURES | B | Subpart B—NEPA and General Concepts | § 333.17 Lead and cooperating agencies. | USACE | (a) Corps as lead agency. In many instances, a proposed activity or decision is undertaken in the context which entails activities or decisions undertaken by other Federal agencies ( e.g., where multiple Federal authorizations are required with respect to a project sponsor's overall purpose and goal). These activities and decisions may be “related actions,” in that they are each the responsibility of a particular agency and they may be all related in a matter relevant to NEPA, e.g., by their relationship with one overarching project. In such instances, Congress has provided that the multiple agencies involved shall determine which of them will be the lead agency pursuant to the criteria identified in NEPA section 107(a)(1)(A), 42 U.S.C. 4336a(a)(1)(A), or any other applicable statute. When serving as the lead agency, the Corps is responsible for managing the NEPA process, including those portions of a non-Federal applicant's proposed project which come under the jurisdiction of other Federal agencies. When serving as the lead agency, the Corps will also determine and document the scope of analysis. When a joint lead relationship is established pursuant to NEPA section 107(a)(1)(B), 42 U.S.C. 4336a(a)(1)(B), the Corps and the other joint lead agency or agencies are collectively responsible for completing the NEPA process. The Corps may reimburse, under agreement, staff support from other Federal agencies beyond the immediate jurisdiction of those agencies. (b) Corps as cooperating agency. As a cooperating agency the Corps will be responsible to the lead agency for providing environmental information which is directly related to the regulatory matter involved and which is required for the preparation of the NEPA documentation. This in no way shall be construed as lessening the District Engineer's ability to request the applicant to furnish appropriate information as discussed in § 333.51 of this part. The District Engineer will identify to the lead agency the information and analysis that is required to be … | |||||
| 33:33:3.0.1.1.27.2.1.8 | 33 | Navigation and Navigable Waters | II | 333 | PART 333—PROCESSING OF DEPARTMENT OF THE ARMY PERMITS AND 33 U.S.C. 408 PERMISSIONS, NATIONAL ENVIRONMENTAL POLICY ACT IMPLEMENTING PROCEDURES | B | Subpart B—NEPA and General Concepts | § 333.18 Notices of intent and scoping. | USACE | (a) Notice of intent. As soon as practicable after determining that a proposed activity for which Corps authorization is sought is sufficiently developed to allow for meaningful public comment and requires an environmental impact statement, the District Engineer will publish a notice of intent to prepare an environmental impact statement. (1) The notice of intent for an environmental impact statement will include a request for public comment on alternatives or effects and on relevant information, studies, or analyses with respect to the proposed agency action. (2) In addition to a request for comment required for notices of intent for environmental impact statements, notice of intent for any environmental document may include: (i) The purpose and need for the proposed action; (ii) A preliminary description of the proposed action and alternatives the environmental impact statement will consider; (iii) A brief summary of expected effects; (iv) Anticipated permits and other authorizations ( i.e., anticipated related actions); (v) A schedule for the decision-making process; (vi) A description of the public scoping process, including any scoping meeting(s); (vii) Contact information for the project manager handling the permit application, who can answer questions about the proposed action and the environmental impact statement; and (viii) Identification of any cooperating and participating agencies ( i.e., agencies responsible for related actions), and any information that such agencies require in the notice to facilitate their decisions or authorizations (b) Scoping. In addition to the notice of intent process described above, the District Engineer may also use other early and open processes to determine the scope of issues for analysis in an environmental document, including substantive issues that meaningfully inform the consideration of environmental effects and the resulting decision on how to proceed, eliminating from further study non-substantive issues, and determining whether connected action… | |||||
| 33:33:3.0.1.1.27.3.1.1 | 33 | Navigation and Navigable Waters | II | 333 | PART 333—PROCESSING OF DEPARTMENT OF THE ARMY PERMITS AND 33 U.S.C. 408 PERMISSIONS, NATIONAL ENVIRONMENTAL POLICY ACT IMPLEMENTING PROCEDURES | C | Subpart C—Environmental Impact Statements | § 333.20 Significance determination. | USACE | (a) General. Prior to initiating an environmental impact statement, the District Engineer must determine the proposed activity is likely to have reasonably foreseeable significant effects on the quality of the human environment, after consideration of any mitigation the Corps may require. As described in § 333.12(a)(5)(i) and § 333.15 of this part, this determination can be made following the completion of an environmental assessment in cases where that environmental assessment cannot conclude in a finding of no significant impact; in other situations, it can be made without first preparing an environmental assessment in instances where initial consideration as to the appropriate level of review as described indicates that the proposed activity is likely to have reasonably foreseeable significant effects. In cases where it is obvious that the proposed activity is likely to result in reasonably foreseeable significant effects and an environmental assessment terminating in a finding of no significant impact is therefore not prepared, the District Engineer must make a determination that an environmental impact statement is required due to the likely significant effects of the activity. This determination will be made in accordance with § 333.12(b) and documented. Whether an impact rises to the level of significant is a matter of the District Engineer's expert judgment. (b) Timing. The determination to prepare an environmental impact statement should be made as soon as the Corps has sufficient information to consider on whether the project would result in significant effects on the human environment, after consideration of any mitigation the Corps would require. In many cases this is soon after the receipt of a complete DA permit application or request for permission, although in some cases a determination may not be made until after an environmental assessment has been prepared. After a determination has been made to prepare an environmental impact statement as the lead agency, the Corps will notify the applica… | |||||
| 33:33:3.0.1.1.27.3.1.10 | 33 | Navigation and Navigable Waters | II | 333 | PART 333—PROCESSING OF DEPARTMENT OF THE ARMY PERMITS AND 33 U.S.C. 408 PERMISSIONS, NATIONAL ENVIRONMENTAL POLICY ACT IMPLEMENTING PROCEDURES | C | Subpart C—Environmental Impact Statements | § 333.29 Review of other agencies' environmental impact statements. | USACE | District Engineers should provide comments directly to the requesting agency specifically related to the Corps jurisdiction by law or special expertise. If the District Engineer determines that another agency's environmental impact statement which involves a Corps permit or permission action is inadequate with respect to the Corps permit or permission action, the district engineer should attempt to resolve the differences concerning the Corps permit or permission action prior to the filing of the environmental impact statement by the other agency. | |||||
| 33:33:3.0.1.1.27.3.1.2 | 33 | Navigation and Navigable Waters | II | 333 | PART 333—PROCESSING OF DEPARTMENT OF THE ARMY PERMITS AND 33 U.S.C. 408 PERMISSIONS, NATIONAL ENVIRONMENTAL POLICY ACT IMPLEMENTING PROCEDURES | C | Subpart C—Environmental Impact Statements | § 333.21 Preparation of environmental impact statements. | USACE | (a) During the process of preparing an environmental impact statement, the District Engineer: (1) Will contact all appropriate Federal agencies to determine their respective role(s), i.e., that of lead agency or cooperating agency consistent with § 333.17 of this part. (2) Will obtain the comments of: (i) Any Federal agency that has specific statutory jurisdiction or special expertise identified in statute with respect to any environmental impact involved or is authorized to develop and enforce environmental standards. The District Engineer shall only consider comments directly tied to the commenting Federal agency's specific statutory jurisdiction or special expertise identified in statute and relevant to impacts or issues within the scope of analysis as determined by the District Engineer. The District Engineer shall only include those comments in the permit or 33 U.S.C. 408 permission administrative file and record. (ii) Appropriate State, Tribal, and local agencies that are authorized to develop and enforce environmental standards. (3) May request the comments of: (i) State, Tribal, or local governments that may be affected by the proposed action; (ii) Any Federal agency that has requested it receive statements on actions of the kind proposed to the extent the comments are directly tied to that agency's statutory jurisdiction or special expertise as identified in statute; (iii) The applicant, and (iv) The public, including by affirmatively soliciting comments in a manner designed to inform those persons or organizations who may be interested in or affected by the proposed action. (b) This process of obtaining and requesting comments pursuant to paragraph (a) of this section may be undertaken at any time that is reasonable in the process of preparing the environmental impact statement. The District Engineer will ensure the process of obtaining and request comments pursuant to paragraph (a) of this part, and the District Engineers' analysis of and response to those comments, does not cause the Corps… | |||||
| 33:33:3.0.1.1.27.3.1.3 | 33 | Navigation and Navigable Waters | II | 333 | PART 333—PROCESSING OF DEPARTMENT OF THE ARMY PERMITS AND 33 U.S.C. 408 PERMISSIONS, NATIONAL ENVIRONMENTAL POLICY ACT IMPLEMENTING PROCEDURES | C | Subpart C—Environmental Impact Statements | § 333.22 Purpose and need. | USACE | (a) The statement will include the purpose and need for the proposed agency action based on the Corps' statutory authority and independent judgment. The purpose and need for the proposed agency action must be informed by the goals of the applicant. The applicant may provide a statement of the purpose and need from their perspective, but the District Engineer will exercise independent judgment in defining the purpose and need for the project. (b) If the scope of analysis for the NEPA document (see § 333.18(b) of this part) covers only the proposed specific activity requiring a Department of the Army permit or 33 U.S.C. 408 permission, then the underlying purpose and need for that specific activity should be stated. (For example, “The purpose and need for the pipe is to obtain cooling water from the river for the electric generating plant.”) (c) If the scope of analysis covers a more extensive project, only part of which may require a DA permit or 33 U.S.C. 408 permission, then the underlying purpose and need for the entire project should be stated. (For example, “The purpose and need for the electric generating plant is to provide increased supplies of electricity to the (named) geographic area.”) | |||||
| 33:33:3.0.1.1.27.3.1.4 | 33 | Navigation and Navigable Waters | II | 333 | PART 333—PROCESSING OF DEPARTMENT OF THE ARMY PERMITS AND 33 U.S.C. 408 PERMISSIONS, NATIONAL ENVIRONMENTAL POLICY ACT IMPLEMENTING PROCEDURES | C | Subpart C—Environmental Impact Statements | § 333.23 Analysis within the environmental impact statement. | USACE | (a) The Corps is neither an opponent nor proponent of the applicant's proposal; therefore, the applicant's final proposal will be identified as the “applicant's preferred alternative” in the final EIS. Decision options available to the District Engineer, which embrace all of the applicant's alternatives, are issue the permit, issue with modifications or conditions, or deny the permit. (b) The environmental impact statement will include a detailed statement on: (1) Reasonably foreseeable environmental effects of the applicant's preferred alternative; (2) Any reasonably foreseeable adverse environmental effects which cannot be avoided should the applicant's preferred alternative be implemented; (3) A reasonable range of alternatives to the applicant's preferred alternative, including an analysis of any negative environmental impacts of not implementing the applicant's preferred alternative in the case of a no action alternative. (i) Only reasonable alternatives need be considered in detail. Reasonable alternatives must be those that are, in the District Engineer's expert judgment, technically, legally, and economically feasible and such feasibility must focus on the accomplishment of the underlying purpose and need. (ii) The alternatives analysis should be thorough enough to use the 404(b)(1) guidelines (40 CFR part 230) where applicable. (iii) Those alternatives that are unavailable to the applicant, whether or not they require Federal action (permits), should normally be included in the analysis of the no-Federal-action (denial) alternative. (iv) The EIS should discuss geographic alternatives, e.g., changes in location and other site-specific variables, and functional alternatives, e.g., project substitutes and design modifications. (v) The “no-action” alternative is one which results in no construction requiring a Corps permit or permission. It may be brought by either the applicant electing to modify their proposal to eliminate work under the jurisdiction of the Corps or by the denial of the permit… | |||||
| 33:33:3.0.1.1.27.3.1.5 | 33 | Navigation and Navigable Waters | II | 333 | PART 333—PROCESSING OF DEPARTMENT OF THE ARMY PERMITS AND 33 U.S.C. 408 PERMISSIONS, NATIONAL ENVIRONMENTAL POLICY ACT IMPLEMENTING PROCEDURES | C | Subpart C—Environmental Impact Statements | § 333.24 Page limits. | USACE | (a) Page limits. Except as provided in paragraph (b) of this section, the text of an environmental impact statement will not exceed 150 pages, not including citations or appendices. (b) An environmental impact statement for a proposed agency action of extraordinary complexity is strictly prohibited from not exceeding 300 pages, not including any citations or appendices. The District Engineer will determine at the earliest possible stage of preparation of an environmental impact statement whether the conditions for exceeding the page limit in paragraph (a) of this section are present. Factors that may indicate extraordinary complexity include: a geographically expansive project that affects multiple resource types; numerous alternatives that must be considered; involves a long time period for implementation; impacts multiple sensitive resources; involve authorization decisions by multiple agencies. (c) Appendices are to be used for voluminous materials, such as scientific tables, collections of data, statistical calculations, and the like, which substantiate the analysis provided in the environmental assessment. Appendices are not to be used to provide additional substantive analysis, because that would circumvent the Congressionally mandated page limits. (d) Format. Environmental impact statements will be formatted for 8.5”x11” paper with one-inch margins using a word processor with 12-point proportionally spaced font, single spaced. Footnotes may be in 10-point font. Such size restrictions do not apply to explanatory maps, diagrams, graphs, tables, and other means of graphically displaying quantitative or geospatial information. When an item of graphical material is larger than 8.5”x11”, each such item will count as one page. (e) Certification related to page limits. The breadth and depth of analysis in an environmental impact statement will be tailored to ensure that the environmental impact statement does not exceed these page limits. In this regard, as part of the finalization of the environmental i… | |||||
| 33:33:3.0.1.1.27.3.1.6 | 33 | Navigation and Navigable Waters | II | 333 | PART 333—PROCESSING OF DEPARTMENT OF THE ARMY PERMITS AND 33 U.S.C. 408 PERMISSIONS, NATIONAL ENVIRONMENTAL POLICY ACT IMPLEMENTING PROCEDURES | C | Subpart C—Environmental Impact Statements | § 333.25 Deadlines. | USACE | (a) NEPA is governed by a “rule of reason.” Congress supplied the measure of that reason in the 2023 revision of NEPA by settling the deadlines in NEPA 107(g), 42 U.S.C. 4336a(g). These deadlines indicate Congress's determination that an agency, working with Congress's allocation of resources has presumptively spent a reasonable amount of time on analysis and the document should issue, absent very unusual circumstances. In such circumstances, an extension will be given only for such time as is necessary to complete the analysis. Thus, unless otherwise specified in statute, the District Engineer will complete the environmental impact statement not later than the date that is two years after the date on which the District Engineer determines that the activity requires the issuance of an environmental impact statement. (b) The end date is either: (1) When the District Engineer reaches a decision and initially proffers the permit to the applicant or provides the requestor 33 U.S.C. 408 permission; or (2) When the District Engineer denies the permit or denies permission under 33 U.S.C. 408 with or without prejudice. (c) The District Engineer will publish the environmental impact statement. (d) If the District Engineer determines they are not able to meet the deadline prescribed by NEPA section 107(g)(1)(A), 42 U.S.C. 4336a(g)(1)(A), they must consult with the applicant pursuant to NEPA section 107(g)(2), 42 U.S.C. 4336a(g)(2). After such consultation, if needed, and for cause stated, the District Engineer may establish a new deadline and must notify the Division Engineer and Headquarters, U.S. Army Corps of Engineers of the deadline extension. Cause for establishing a new deadline is only established if the environmental impact statement is so incomplete, at the time at which the District Engineer determines they are not able to meet the statutory deadline, that issuance pursuant to paragraph (c) of this section above would, in the District Engineer's view, result in an inadequate analysis. Such new deadline mu… | |||||
| 33:33:3.0.1.1.27.3.1.7 | 33 | Navigation and Navigable Waters | II | 333 | PART 333—PROCESSING OF DEPARTMENT OF THE ARMY PERMITS AND 33 U.S.C. 408 PERMISSIONS, NATIONAL ENVIRONMENTAL POLICY ACT IMPLEMENTING PROCEDURES | C | Subpart C—Environmental Impact Statements | § 333.26 Publication of the environmental impact statement. | USACE | The District Engineer will publish the entire environmental impact statement on a publicly available website. During the process of preparing the environmental impact statement, the District Engineer may publish a draft statement or other materials that in their judgment may assist in fulfilling their NEPA responsibilities. | |||||
| 33:33:3.0.1.1.27.3.1.8 | 33 | Navigation and Navigable Waters | II | 333 | PART 333—PROCESSING OF DEPARTMENT OF THE ARMY PERMITS AND 33 U.S.C. 408 PERMISSIONS, NATIONAL ENVIRONMENTAL POLICY ACT IMPLEMENTING PROCEDURES | C | Subpart C—Environmental Impact Statements | § 333.27 Public hearing. | USACE | If a public hearing is to be held pursuant to 33 CFR part 327, or any other authority, for a permit application requiring an environmental impact statement, the actions analyzed by the environmental impact statement should be considered at the public hearing. The District Engineer can, but need not, make a draft of the environmental impact statement available to the public and, in instances where the District Engineer does so, should do so at least 15 days in advance of the hearing. If a hearing request is received from another agency having jurisdiction over an element of the applicant's activity, the district engineer should coordinate a joint hearing with that agency whenever appropriate. | |||||
| 33:33:3.0.1.1.27.3.1.9 | 33 | Navigation and Navigable Waters | II | 333 | PART 333—PROCESSING OF DEPARTMENT OF THE ARMY PERMITS AND 33 U.S.C. 408 PERMISSIONS, NATIONAL ENVIRONMENTAL POLICY ACT IMPLEMENTING PROCEDURES | C | Subpart C—Environmental Impact Statements | § 333.28 Comments received on an environmental impact statement. | USACE | For permit applications or requests for permissions to be decided at the district level, the District Engineer should consider incoming comments and provide responses in the environmental impact statement when substantive issues are raised. For permit applications or requests for permissions to be decided at a higher authority, the District Engineer shall forward any comment letters together with appropriate responses to the higher authority. | |||||
| 33:33:3.0.1.1.27.4.1.1 | 33 | Navigation and Navigable Waters | II | 333 | PART 333—PROCESSING OF DEPARTMENT OF THE ARMY PERMITS AND 33 U.S.C. 408 PERMISSIONS, NATIONAL ENVIRONMENTAL POLICY ACT IMPLEMENTING PROCEDURES | D | Subpart D—Efficient Environmental Reviews | § 333.31 Tiered and programmatic environmental documents. | USACE | (a) Activities that require Corps authorization under 33 U.S.C. 1344, 33 U.S.C. 401, 33 U.S.C. 403, and 33 U.S.C. 1413 are reviewed (and when applicable, permitted) on a site-specific basis based upon an application containing a complete description of the proposed activity, and all activities which the applicant plans to undertake which are reasonably related to the same project and for which a Corps permit will be required. See 33 CFR 325.1(d)(1)-(2). However, only for reviews of activities under 33 U.S.C. 408, the District Engineer may prepare tiered environmental documents when conducting multi-phased reviews of proposed alterations or in other appropriate circumstances. Multi-phased reviews under 33 U.S.C. 408 evaluate proposed alterations in multiple successive iterations of progressively greater detail. Each successive review must be accompanied by a NEPA document that considers the potential impacts of the alteration at the level of detail of the given phase of review to help inform the development of the proposed alteration. The analysis in each environmental document will reflect the level of planning in each tier. For example, the first tier may consider the differing impacts of selecting different sites for the alteration, the second tier may consider different project configurations, and the final tier may consider the impacts from different construction methods. Each successive analysis should build off the previous analysis, formally incorporating the prior environmental documents. (b) After completing a programmatic environmental assessment or environmental impact statement for a review under 33 U.S.C. 408, the District Engineer may rely on that document for 5 years if there are not substantial new circumstances or information about the significance of adverse effects that bear on the analysis. After 5 years, as long as the District Engineer reevaluates the analysis in the programmatic environmental document and any underlying assumption to ensure reliance on the analysis remains valid and briefl… | |||||
| 33:33:3.0.1.1.27.4.1.2 | 33 | Navigation and Navigable Waters | II | 333 | PART 333—PROCESSING OF DEPARTMENT OF THE ARMY PERMITS AND 33 U.S.C. 408 PERMISSIONS, NATIONAL ENVIRONMENTAL POLICY ACT IMPLEMENTING PROCEDURES | D | Subpart D—Efficient Environmental Reviews | § 333.32 Reliance on existing environmental documents. | USACE | (a) Generally. The District Engineer may rely on an environmental impact statement, environmental assessment, or portion thereof, provided that the statement, assessment, or portion thereof meets the standards for an adequate statement or assessment under these procedures. When relying on an environmental impact statement, environmental assessment, or portion thereof, the District Engineer will cite, briefly describe the content and relevance to the environmental document, and may make modifications that are necessary to render the relied-upon document, or portion thereof, fit for fulfilling NEPA's analytic requirements for the action. If the District Engineer finds that the other agency's environmental impact statement or environmental assessment is inadequate with respect to the Corps permit or permission action, the District Engineer should incorporate the other agency's NEPA document or a portion thereof and prepare an appropriate and adequate NEPA document to address the Corps involvement with the proposed action. (b) Substantial similarity. (1) If the actions covered by the original environmental impact statement or environmental assessment and the proposed action are substantially the same, the District Engineer will document their reliance on the statement or assessment. (2) If the actions are not substantially the same, the District Engineer may modify the statement or assessment as necessary to render the statement fit for fulfilling NEPA's analytic requirements for the action at hand, and document the reliance on the statement or assessment, as modified, or may incorporate relevant portions in the District Engineer's own NEPA document. Where appropriate, the District Engineer may solicit comment to the extent that solicitation of comment will assist the District Engineer in expeditiously adapting the relied-upon statement or assessment so that it is fit for the District Engineer's purposes. | |||||
| 33:33:3.0.1.1.27.4.1.3 | 33 | Navigation and Navigable Waters | II | 333 | PART 333—PROCESSING OF DEPARTMENT OF THE ARMY PERMITS AND 33 U.S.C. 408 PERMISSIONS, NATIONAL ENVIRONMENTAL POLICY ACT IMPLEMENTING PROCEDURES | D | Subpart D—Efficient Environmental Reviews | § 333.33 Incorporation. | USACE | The District Engineer may incorporate material, such as planning studies, analyses, or other relevant information, into environmental documents by reference when the effect will be to cut down on bulk without impeding the Corps review of the action. When incorporating material by reference, the District Engineer will cite, briefly describe the content and relevance to the environmental document, and make the materials reasonably available for review by potentially interested parties. The District Engineer will not use incorporation as a means to evade the statutory page limits. | |||||
| 33:33:3.0.1.1.27.4.1.4 | 33 | Navigation and Navigable Waters | II | 333 | PART 333—PROCESSING OF DEPARTMENT OF THE ARMY PERMITS AND 33 U.S.C. 408 PERMISSIONS, NATIONAL ENVIRONMENTAL POLICY ACT IMPLEMENTING PROCEDURES | D | Subpart D—Efficient Environmental Reviews | § 333.34 Supplements to environmental documents. | USACE | The District Engineer will prepare supplements to environmental documents only if a major Federal action remains to occur, and: (a) The applicant makes substantial changes to the proposed action that are relevant to environmental concerns; or (b) The District Engineer decides, in their discretion, that there are substantial significant new circumstances or information about the significance of the adverse effects that bear on the proposed action or its effects. | |||||
| 33:33:3.0.1.1.27.4.1.5 | 33 | Navigation and Navigable Waters | II | 333 | PART 333—PROCESSING OF DEPARTMENT OF THE ARMY PERMITS AND 33 U.S.C. 408 PERMISSIONS, NATIONAL ENVIRONMENTAL POLICY ACT IMPLEMENTING PROCEDURES | D | Subpart D—Efficient Environmental Reviews | § 333.35 Integrity and completeness of information. | USACE | (a) The District Engineer will not undertake new scientific and technical research to inform their analyses unless that is essential to a reasoned choice among alternatives and the overall costs and time frame of such undertaking are not unreasonable. Rather, the District Engineer will make use of reliable existing data and resources. (b) When the District Engineer is evaluating an action's reasonably foreseeable effects on the human environment, and there is incomplete or unavailable information that cannot be obtained at a reasonable cost or the means to obtain it are unknown, the District Engineer will make clear in the relevant environmental document that such information is lacking. | |||||
| 33:33:3.0.1.1.27.4.1.6 | 33 | Navigation and Navigable Waters | II | 333 | PART 333—PROCESSING OF DEPARTMENT OF THE ARMY PERMITS AND 33 U.S.C. 408 PERMISSIONS, NATIONAL ENVIRONMENTAL POLICY ACT IMPLEMENTING PROCEDURES | D | Subpart D—Efficient Environmental Reviews | § 333.36 Integrating NEPA with other environmental requirements. | USACE | (a) To the fullest extent possible, the District Engineer will prepare environmental documents concurrently with and integrated with analyses and related surveys and studies required by other Federal statutes. In appropriate instances, the District Engineer may participate in preparing single environmental assessment, finding of no significant impact, environmental impact statement, and Record of Decision documents. (b) The District Engineer will combine an environmental document prepared in compliance with NEPA with any other agency document to reduce duplication and paperwork. Thus, the District Engineer may combine an environmental document with related plans, rules, or amendments as a single consolidated document. (c) If comments on a notice of intent or other aspects of a scoping process identify consultations, permits, or licenses necessary under other environmental laws, the environmental document may contain a section briefly listing the applicable requirements and how the applicant has or will meet them ( e.g., permits applied for or received, consultations initiated or concluded). | |||||
| 33:33:3.0.1.1.27.4.1.7 | 33 | Navigation and Navigable Waters | II | 333 | PART 333—PROCESSING OF DEPARTMENT OF THE ARMY PERMITS AND 33 U.S.C. 408 PERMISSIONS, NATIONAL ENVIRONMENTAL POLICY ACT IMPLEMENTING PROCEDURES | D | Subpart D—Efficient Environmental Reviews | § 333.37 Elimination of duplication with State, Tribal, and local procedures. | USACE | (a) The District Engineer will, where appropriate, cooperate with State, Tribal, and local agencies that are responsible for preparing environmental documents. (b) To the fullest extent practicable unless specifically prohibited by law, the District Engineer will cooperate with State, Tribal, and local agencies to reduce duplication between NEPA and State, Tribal, and local requirements, including through use of studies, analysis, and decisions developed by State, Tribal, or local agencies. Such cooperation may include: (1) Joint planning processes; (2) Joint environmental research and studies; (3) Joint public hearings (except where otherwise provided by statute); or (4) Joint environmental documents. | |||||
| 33:33:3.0.1.1.27.4.1.8 | 33 | Navigation and Navigable Waters | II | 333 | PART 333—PROCESSING OF DEPARTMENT OF THE ARMY PERMITS AND 33 U.S.C. 408 PERMISSIONS, NATIONAL ENVIRONMENTAL POLICY ACT IMPLEMENTING PROCEDURES | D | Subpart D—Efficient Environmental Reviews | § 333.38 Unique identification numbers. | USACE | For all environmental documents, the District Engineer will provide a unique identification number for tracking purposes, which the District Engineer will reference on all associated environmental review documents prepared for the proposed agency action and in any database or tracking system for such documents. The District Engineer will coordinate with the CEQ and other Federal agencies to ensure uniformity of such identification numbers across Federal agencies. | |||||
| 33:33:3.0.1.1.27.4.1.9 | 33 | Navigation and Navigable Waters | II | 333 | PART 333—PROCESSING OF DEPARTMENT OF THE ARMY PERMITS AND 33 U.S.C. 408 PERMISSIONS, NATIONAL ENVIRONMENTAL POLICY ACT IMPLEMENTING PROCEDURES | D | Subpart D—Efficient Environmental Reviews | § 333.39 Emergency procedures. | USACE | In responding to emergency situations to prevent or reduce imminent risk of life, health, property, or severe economic losses, district commanders may proceed without the specific documentation and procedural requirements of other sections of this regulation. District Engineers shall consider the probable environmental consequences in determining appropriate emergency actions and when requesting approval to proceed on emergency actions, will describe proposed NEPA documentation or reasons for exclusion from documentation. NEPA documentation should be accomplished prior to initiation of emergency work if time constraints render this practicable. Such documentation may also be accomplished after the completion of emergency work, if appropriate. When possible, emergency actions considered major in scope with potentially significant environmental impacts shall be referred through the Division Engineers to Headquarters, U.S. Army Corps of Engineers for consultation with CEQ about NEPA alternative arrangements. | |||||
| 33:33:3.0.1.1.27.5.1.1 | 33 | Navigation and Navigable Waters | II | 333 | PART 333—PROCESSING OF DEPARTMENT OF THE ARMY PERMITS AND 33 U.S.C. 408 PERMISSIONS, NATIONAL ENVIRONMENTAL POLICY ACT IMPLEMENTING PROCEDURES | E | Subpart E—Agency Decision Making | § 333.41 Decision documents. | USACE | At the time of its decision on its proposed action, the Corps may prepare and timely publish a concise public decision document notifying the public that the District Engineer has certified that the Corps has considered all relevant information raised in the NEPA process and that the NEPA process has closed. To avoid duplication, a finding of no significant impact may reference the environmental assessment and a record of decision may reference the environmental impact statement. The decision document prepared for NEPA compliance informs the final agency action of making the decision on the permit application or the request for permission under 33 U.S.C. 408(a) but is not the final agency action. | |||||
| 33:33:3.0.1.1.27.5.1.2 | 33 | Navigation and Navigable Waters | II | 333 | PART 333—PROCESSING OF DEPARTMENT OF THE ARMY PERMITS AND 33 U.S.C. 408 PERMISSIONS, NATIONAL ENVIRONMENTAL POLICY ACT IMPLEMENTING PROCEDURES | E | Subpart E—Agency Decision Making | § 333.42 Filing requirements. | USACE | The District Engineer will file environmental impact statements together with comments and any responses with the Environmental Protection Agency (EPA), Office of Federal Activities for publication in the Federal Register . | |||||
| 33:33:3.0.1.1.27.6.1.1 | 33 | Navigation and Navigable Waters | II | 333 | PART 333—PROCESSING OF DEPARTMENT OF THE ARMY PERMITS AND 33 U.S.C. 408 PERMISSIONS, NATIONAL ENVIRONMENTAL POLICY ACT IMPLEMENTING PROCEDURES | F | Subpart F—Procedures for Applicant-Prepared NEPA Documents | § 333.51 Procedures for applicant-prepared environmental documents. | USACE | The District Engineer may require the applicant to furnish appropriate information that the district engineer considers necessary for the preparation of an EA or EIS. The District Engineer may prepare an EA or an EIS, or may obtain information needed to prepare an EA or an EIS, either with Corps staff or by third-party contract. In accordance with NEPA section 107(f), 42 U.S.C. 4336a(f), the Corps has established procedures allowing applicants, or contractors hired by applicants, to prepare environmental assessments and environmental impact statements documents under the District Engineer supervision. (a) The District Engineer will independently evaluate the environmental document and will take responsibility for its contents. The District Engineer is responsible for ensuring that the information provided by the applicant-hired contractor is consistent with Corps' need to take a hard, objective look at the public interest and environmental factors consistent with its statutory requirements. (b) The District Engineer will assist applicants and applicant-hired contractors by providing guidance and outlining the types of information required for the preparation of the environmental document. Third party contracting is the primary method for preparing all or part of environmental impact statements covered by this part. The District Engineer may also provide appropriate guidance and assist in environmental document preparation, to the extent that the District Engineer's resources and policy priorities allow. The District Engineer will work with the applicant to define the purpose and need, and, when appropriate, to develop a reasonable range of alternatives to meet that purpose and need. (c) The District Engineer will work develop and modify, as appropriate, a schedule for preparation of the environmental document. Major changes to the schedule or related matters will be documented through written correspondence. (d) The District Engineer may request from an applicant environmental information for use by the Corps… | |||||
| 33:33:3.0.1.1.27.7.1.1 | 33 | Navigation and Navigable Waters | II | 333 | PART 333—PROCESSING OF DEPARTMENT OF THE ARMY PERMITS AND 33 U.S.C. 408 PERMISSIONS, NATIONAL ENVIRONMENTAL POLICY ACT IMPLEMENTING PROCEDURES | G | Subpart G—Definitions | § 333.61 Definitions. | USACE | As used in these implementing procedures, terms have the meanings provided in NEPA section 111, 42 U.S.C. 4336e. In addition: (a) NEPA means the National Environmental Policy Act, as amended (42 U.S.C. 4321, et seq. ). (b) Authorization means a permit or permission. (c) Connected action means a separate Federal action within the Corps' authority that is closely related to the proposed agency action and should be addressed in a single environmental document because the proposed agency action: (1) Automatically triggers the separate Federal action, which independently would require the preparation of additional environmental documents; (2) Cannot proceed unless the separate Federal action is taken previously or simultaneously; or (3) Is an interdependent part of a larger Federal action that includes a separate Federal action, which mutually depend on the larger Federal action for their justification. (d) Effects or impacts means changes to the human environment from the proposed action or alternatives that are reasonably foreseeable and have a reasonably close causal relationship to the proposed action or alternatives. (1) Effects include ecological (such as the effects on natural resources and on the components, structures, and functioning of affected ecosystems), aesthetic, historic, cultural, economic (such as the effects on employment), social, or health effects. Effects appropriate for analysis under NEPA may be either beneficial or adverse, or both, with respect to these values. (2) A “but for” causal relationship is insufficient to make an agency responsible for a particular effect under NEPA. Effects should generally not be considered if they are remote in time, geographically remote, or the product of a lengthy causal chain. Effects do not include those effects that the agency has no ability to prevent due to the limits of its regulatory authority, or that would occur regardless of the proposed action, or that would need to be initiated by a third party. (e) Human environment means com… | |||||
| 33:33:3.0.1.1.27.8.1.1 | 33 | Navigation and Navigable Waters | II | 333 | PART 333—PROCESSING OF DEPARTMENT OF THE ARMY PERMITS AND 33 U.S.C. 408 PERMISSIONS, NATIONAL ENVIRONMENTAL POLICY ACT IMPLEMENTING PROCEDURES | H | Subpart H—Severability | § 333.71 Severability. | USACE | The sections of this part are separate and severable from one another. If any section or portion therein is stayed or determined to be invalid, or the applicability of any section to any person or entity is held invalid, it is the Corps' intention that the validity of the remainder of those parts will not be affected. The remaining sections or portions, and all applications thereof, shall continue to be in effect. | |||||
| 44:44:1.0.1.6.81.1.10.1 | 44 | Emergency Management and Assistance | I | F | 333 | PART 333—EMERGENCY MANAGEMENT PRIORITIES AND ALLOCATIONS SYSTEM | A | Subpart A—Purpose | § 333.1 Purpose of this part. | FEMA | The Federal Emergency Management Agency (FEMA) refers to this part as the Emergency Management Priorities and Allocations System (EMPAS). The EMPAS implements those priorities and allocations authorities under the Defense Production Act that are the subject of a delegation from the President to the Secretary of DHS and re-delegated to the FEMA Administrator, or to the FEMA Administrator directly, as described in § 333.10 of this part. This includes the use of authority to support critical infrastructure restoration and protection, stockpiling, and emergency preparedness activities pursuant to Title VI of the Robert T. Stafford Disaster Relief and Emergency Assistance Act (42 U.S.C. 5195 et seq. ), and related statutes, with respect to health and medical resources needed to respond to the spread of COVID-19 within the United States. | ||||
| 44:44:1.0.1.6.81.10.10.1 | 44 | Emergency Management and Assistance | I | F | 333 | PART 333—EMERGENCY MANAGEMENT PRIORITIES AND ALLOCATIONS SYSTEM | J | Subpart J—Adjustments, Exceptions, and Appeals | § 333.70 Adjustments or exceptions. | FEMA | (a) A person may submit a request to FEMA for an adjustment or exception on the ground that: (1) A provision of this part or an official action results in an undue or exceptional hardship on that person not suffered generally by others in similar situations and circumstances; or (2) The consequence of following a provision of this part or an official action is contrary to the intent of the Defense Production Act, other applicable statutes, or this part. (b) Each request for adjustment or exception must be in writing and contain a complete statement of all the facts and circumstances related to the provision of this part or official action from which adjustment is sought and a full and precise statement of the reasons why relief should be provided. (c) The submission of a request for adjustment or exception shall not relieve any person from the obligation of complying with the provisions of this part or official action in question while the request is being considered unless such interim relief is granted in writing by FEMA. (d) A decision of FEMA under this section may be appealed to the Administrator. (For information on the appeal procedure, see § 333.71.) | ||||
| 44:44:1.0.1.6.81.10.10.2 | 44 | Emergency Management and Assistance | I | F | 333 | PART 333—EMERGENCY MANAGEMENT PRIORITIES AND ALLOCATIONS SYSTEM | J | Subpart J—Adjustments, Exceptions, and Appeals | § 333.71 Appeals. | FEMA | (a) Any person who has had a request for adjustment or exception denied by FEMA under § 333.70 may appeal to the Administrator, who shall review and reconsider the denial. Such appeals should be submitted to the Office of Policy and Programs at FEMA-DPA@fema.dhs.gov, Ref: EMPAS Appeals. (b)(1) Appeals of denied requests for exceptions from or adjustments to compliance with the provisions of this part or an official action must be received by FEMA no later than 45 days after receipt of a written notice of denial from FEMA. After this 45-day period, an appeal may be accepted at the discretion of the Administrator. (2) For requests for adjustment or exception involving rated orders placed for the purpose of emergency preparedness in response to a hazard that has occurred or is imminent, an appeal must be received by FEMA no later than 15 days after receipt of a written notice of denial. (c) Each appeal must be in writing and contain a complete statement of all the facts and circumstances related to the action appealed from and a full and precise statement of the reasons the decision should be modified or reversed. (d) In addition to the written materials submitted in support of an appeal, an appellant may request, in writing, an opportunity for an informal hearing. This request may be granted or denied at the discretion of the Administrator. (e) When a hearing is granted, the Administrator may designate an employee of FEMA to conduct the hearing and to prepare a report. The hearing officer shall determine all procedural questions and impose such time or other limitations deemed reasonable. In the event that the hearing officer decides that a printed transcript is necessary, all expenses shall be borne by the appellant. (f) When determining an appeal, the Administrator may consider all information submitted during the appeal as well as any recommendations, reports, or other relevant information and documents available to FEMA, or consult with any other persons or groups. (g) The submission of an appeal under… | ||||
| 44:44:1.0.1.6.81.11.10.1 | 44 | Emergency Management and Assistance | I | F | 333 | PART 333—EMERGENCY MANAGEMENT PRIORITIES AND ALLOCATIONS SYSTEM | K | Subpart K—Miscellaneous Provisions | § 333.80 Protection against claims. | FEMA | 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. | ||||
| 44:44:1.0.1.6.81.11.10.2 | 44 | Emergency Management and Assistance | I | F | 333 | PART 333—EMERGENCY MANAGEMENT PRIORITIES AND ALLOCATIONS SYSTEM | K | Subpart K—Miscellaneous Provisions | § 333.81 Records and reports. | FEMA | (a) Persons are required to make and preserve for at least three years, accurate and complete records of any transaction covered by this part or an official action. (b) Records must be maintained in sufficient detail to permit the determination, upon examination, of whether each transaction complies with the provisions of this part or any official action. However, this part does not specify any particular method or system to be used. (c) Records required to be maintained by this part must be made available for examination on demand by duly authorized representatives of FEMA as provided in § 333.61. (d) In addition, persons must develop, maintain, and submit any other records and reports to FEMA that may be required for the administration of the Defense Production Act and other applicable statutes, and this part. (e) Under section 705(d) of the Act and the ultimate delegation of that authority to the FEMA Administrator, information obtained under section 705 of the Act which the Administrator deems confidential, or with reference to which a request for confidential treatment is made by the person furnishing such information, shall not be published or disclosed unless the Administrator determines that the withholding of this information is contrary to the interest of the national defense. Information required to be submitted to FEMA in connection with the enforcement or administration of the Act, this part, or an official action, is deemed to be confidential under section 705(d) of the Act and shall not be published or disclosed except as required by applicable Federal law. | ||||
| 44:44:1.0.1.6.81.11.10.3 | 44 | Emergency Management and Assistance | I | F | 333 | PART 333—EMERGENCY MANAGEMENT PRIORITIES AND ALLOCATIONS SYSTEM | K | Subpart K—Miscellaneous Provisions | § 333.82 Applicability of this part and official actions. | FEMA | (a) This part and all official actions, unless specifically stated otherwise, apply to transactions in any state, territory, or possession of the United States and the District of Columbia. (b) This part and all official actions apply not only to deliveries to other persons but also include deliveries to affiliates and subsidiaries of a person and deliveries from one branch, division, or section of a single entity to another branch, division, or section under common ownership or control. (c) This part shall not be construed to affect any administrative actions taken by FEMA, or any outstanding contracts or orders placed pursuant to any of the regulations, orders, schedules, or delegations of authority issued by FEMA prior to May 13, 2020. Such actions, contracts, or orders shall continue in full force and effect under this part unless modified or terminated by proper authority. | ||||
| 44:44:1.0.1.6.81.11.10.4 | 44 | Emergency Management and Assistance | I | F | 333 | PART 333—EMERGENCY MANAGEMENT PRIORITIES AND ALLOCATIONS SYSTEM | K | Subpart K—Miscellaneous Provisions | § 333.83 Communications. | FEMA | General communications concerning this part, including how to obtain copies of this part and explanatory information, requests for guidance or clarification, may be addressed to FEMA's Office of Policy and Program Analysis at FEMA-DPA@fema.dhs.gov. | ||||
| 44:44:1.0.1.6.81.11.10.5 | 44 | Emergency Management and Assistance | I | F | 333 | PART 333—EMERGENCY MANAGEMENT PRIORITIES AND ALLOCATIONS SYSTEM | K | Subpart K—Miscellaneous Provisions | § 333.84 Severability. | FEMA | FEMA intends the various provisions of this part to be severable from each other to the extent practicable, such that if a court of competent jurisdiction were to vacate or enjoin any one provision, the other provisions are intended to remain in effect unless they are dependent upon the vacated or enjoined provision. | ||||
| 44:44:1.0.1.6.81.2.10.1 | 44 | Emergency Management and Assistance | I | F | 333 | PART 333—EMERGENCY MANAGEMENT PRIORITIES AND ALLOCATIONS SYSTEM | B | Subpart B—Overview | § 333.2 Program eligibility. | FEMA | (a) Certain programs to promote the national defense are eligible for priorities and allocations support. These include programs for military and energy production or construction, military or critical infrastructure assistance to any foreign nation, deployment and sustainment of military forces, homeland security, stockpiling, space, and any directly related activity. Other eligible programs include emergency preparedness activities conducted pursuant to Title VI of the Robert T. Stafford Disaster Relief and Emergency Assistance Act (42 U.S.C. 5195 et seq. ) and critical infrastructure protection and restoration. For a current and complete list reflecting the latest changes to approved programs, please visit FEMA's website at www.FEMA.gov. (b) FEMA may delegate authority to place priority ratings on contracts or orders necessary to promote the national defense to appropriate officials in certain Federal Government agencies that issue such contracts or orders, to the extent consistent with the delegation of Presidential authority under which FEMA is operating. Such delegations may include authority to authorize recipients of rated orders to place ratings on contracts or orders to contractors, subcontractors, and suppliers. | ||||
| 44:44:1.0.1.6.81.2.10.2 | 44 | Emergency Management and Assistance | I | F | 333 | PART 333—EMERGENCY MANAGEMENT PRIORITIES AND ALLOCATIONS SYSTEM | B | Subpart B—Overview | § 333.3 Priority ratings and rated orders. | FEMA | (a) Rated orders are identified by a priority rating and a program identification symbol. Rated orders take precedence over all unrated orders as necessary to meet required delivery dates. Among rated orders, DX rated orders take precedence over DO rated orders. (b) Persons receiving rated orders must give them preferential treatment as required by this part. (c) All rated orders must be scheduled to the extent possible to ensure delivery by the required delivery date. (d) Persons who receive rated orders must in turn place rated orders with their suppliers for the items they need to fill the orders. This provision ensures that suppliers will give priority treatment to rated orders from contractor to subcontractor to suppliers throughout the procurement chain. (e) Persons may place a priority rating on orders only when they are in receipt of a rated order, have been explicitly authorized to do so by FEMA or a Delegate Agency, or are otherwise permitted to do so by this part. | ||||
| 44:44:1.0.1.6.81.2.10.3 | 44 | Emergency Management and Assistance | I | F | 333 | PART 333—EMERGENCY MANAGEMENT PRIORITIES AND ALLOCATIONS SYSTEM | B | Subpart B—Overview | §§ 333.4-333.7 [Reserved] | FEMA | |||||
| 44:44:1.0.1.6.81.3.10.1 | 44 | Emergency Management and Assistance | I | F | 333 | PART 333—EMERGENCY MANAGEMENT PRIORITIES AND ALLOCATIONS SYSTEM | C | Subpart C—Definitions | § 333.8 Definitions. | FEMA | The definitions in this section apply throughout this part: Act or DPA means the Defense Production Act of 1950, as amended (50 U.S.C. 4501, et seq. ). Administrator means the Administrator of the Federal Emergency Management Agency. Allocation means the control of the distribution of materials, services or facilities for a purpose deemed necessary or appropriate to promote the national defense. Allocation order means an official action to control the distribution of materials, services, or facilities for a purpose deemed necessary or appropriate to promote the national defense. Allotment means an official action that specifies the maximum quantity of a material, service, or facility authorized for a specific use to promote the national defense. Approved program means a program determined as necessary or appropriate for priorities and allocations support to promote the national defense by the Secretary of Defense, the Secretary of Energy, or the Secretary of Homeland Security, under the authority of the Defense Production Act and Executive Order 13603. Construction means the erection, addition, extension, or alteration of any building, structure, or project, using materials or products which are to be an integral and permanent part of the building, structure, or project. Construction does not include maintenance and repair. Critical infrastructure means any systems and assets, whether physical or cyber-based, so vital to the United States that the degradation or destruction of such systems and assets would have a debilitating impact on national security, including, but not limited to, national economic security and national public health or safety. Delegate Agency means a Federal Government agency authorized by delegation from FEMA to place priority ratings on contracts or orders needed to support approved programs. Directive means an official action which requires a person to take or refrain from taking certain actions in accordance with its provisions. Emergency preparedness means all tho… | ||||
| 44:44:1.0.1.6.81.4.10.1 | 44 | Emergency Management and Assistance | I | F | 333 | PART 333—EMERGENCY MANAGEMENT PRIORITIES AND ALLOCATIONS SYSTEM | D | Subpart D—Priorities and Placement of Rated Orders | § 333.10 Authority. | FEMA | (a) The priorities and allocations authorities of the President under Title I of the Act that have been delegated to the Secretary of Homeland Security have been redelegated to the Administrator. These rules are issued pursuant to Title I of the Act, and implementing authorities, including such authorities as are contained in subchapter III of chapter 55 of title 50, United States Code (50 U.S.C. 4554, 4555, 4556, and 4560), which have been delegated to FEMA. (b) Delegations by FEMA. FEMA may authorize Delegate Agencies to assign priority ratings to orders under these regulations as authorized. (c) Jurisdictional limitations. Unless delegated by the President to DHS or FEMA, the provisions of this part are not applicable to the following resource categories, as defined in Executive Order 13603, a successor executive order, or implementing regulations issued thereunder: (1) Food resources, food resource facilities, and the domestic distribution of farm equipment and commercial fertilizer (Resource department with jurisdiction—Department of Agriculture); (2) Energy supplies (Resources agency with jurisdiction—Department of Energy); (3) All forms of civil transportation (Resource department with jurisdiction—Department of Transportation); (4) Health resources (Resource department with jurisdiction—Department of Health and Human Services), except that pursuant to Executive Order 13911, the provisions of this part are applicable to health and medical resources needed to respond to the spread of COVID-19; (5) Water resources (Resource department with jurisdiction—Department of Defense); and (6) All other materials, services, and facilities, including construction materials (“industrial resources”) (Resource department with jurisdiction—Department of Commerce). | ||||
| 44:44:1.0.1.6.81.4.10.10 | 44 | Emergency Management and Assistance | I | F | 333 | PART 333—EMERGENCY MANAGEMENT PRIORITIES AND ALLOCATIONS SYSTEM | D | Subpart D—Priorities and Placement of Rated Orders | § 333.19 Special provisions applicable to rated orders for third parties. | FEMA | (a) The provisions of this part apply to rated orders placed by FEMA or a Delegate Agency to facilitate sales to third parties, regardless of the nature of their relationship to the Federal Government, unless otherwise specified. (b) Where FEMA or a Delegate Agency has placed a rated order to facilitate a sale to a third party, the third party is responsible for satisfying the applicable terms of sale and payment. The Federal Government shall not be liable for any failure to meet the terms of sale or payment. (c) If a third party is unable to satisfy the applicable terms of sale or payment, FEMA or the Delegate Agency may amend or cancel the rated order pursuant to § 333.16 of this part. If FEMA or the Delegate Agency amend the rated order to provide that delivery shall be made to FEMA, the Delegate Agency, or another third party instead of the original third party, and the amendment shall not constitute a new rated order. | ||||
| 44:44:1.0.1.6.81.4.10.2 | 44 | Emergency Management and Assistance | I | F | 333 | PART 333—EMERGENCY MANAGEMENT PRIORITIES AND ALLOCATIONS SYSTEM | D | Subpart D—Priorities and Placement of Rated Orders | § 333.11 Priority ratings. | FEMA | (a) Levels of priority. (1) There are two levels of priority established by Federal Priorities and Allocations System regulations, identified by the rating symbols “DO” and “DX.” (2) All DO rated orders have equal priority with each other and take preference over unrated orders. All DX rated orders have equal priority with each other and take preference over DO rated orders and unrated orders. (For resolution of conflicts among rated orders of equal priority, see § 333.14(c)). (3) In addition, a Directive issued by FEMA regarding priority treatment for a given item takes preference over any DX rated order, DO rated order, or unrated order, as stipulated in the Directive. (For a full discussion of Directives, see § 333.52). (b) Program identification symbols. Program identification symbols indicate which approved program is being supported by a rated order. Program identification symbols, in themselves, do not connote any priority. (c) Priority ratings. A priority rating consists of the rating symbol—DO or DX—and the program identification symbol. | ||||
| 44:44:1.0.1.6.81.4.10.3 | 44 | Emergency Management and Assistance | I | F | 333 | PART 333—EMERGENCY MANAGEMENT PRIORITIES AND ALLOCATIONS SYSTEM | D | Subpart D—Priorities and Placement of Rated Orders | § 333.12 Elements of a rated order. | FEMA | (a) Elements required for all rated orders. (1) The appropriate priority rating and program identification symbol; (2) A required delivery date or dates. The words “immediately” or “as soon as possible” do not constitute a delivery date. When a “requirements contract,” “basic ordering agreement,” “prime vendor contract,” or similar procurement document bearing a priority rating contains no specific delivery date or dates, but provides for the furnishing of items from time-to-time or within a stated period against specific purchase orders, such as “calls,” “requisitions,” and “delivery orders,” the purchase orders under such contracts or agreements must specify a required delivery date or dates and are to be considered as rated as of the date of their receipt by the supplier and not as of the date of the original procurement document. (3) The written signature on a manually placed order, or the digital signature or name on an electronically placed order, of an individual authorized to sign rated orders for the person placing the order. The signature, manual or digital, certifies that the rated order is authorized under this part and that the requirements of this part are being followed; and (4) A statement that reads in substance: “This is a rated order certified for national defense use and you are required to follow all the provisions of the Emergency Management Priorities and Allocations System regulations (44 CFR part 333).” (b) Additional element required for certain emergency preparedness rated orders. If a rated order is placed for the purpose of emergency preparedness requirements and expedited action is necessary or appropriate to meet these requirements, the following statement must be included in the order: “This rated order is placed for the purpose of emergency preparedness. It must be accepted or rejected pursuant to the mandatory acceptance and mandatory rejection requirements found in 44 CFR 333.13 within [Insert a time limit no less than the minimum applicable time limit specified in § 333… | ||||
| 44:44:1.0.1.6.81.4.10.4 | 44 | Emergency Management and Assistance | I | F | 333 | PART 333—EMERGENCY MANAGEMENT PRIORITIES AND ALLOCATIONS SYSTEM | D | Subpart D—Priorities and Placement of Rated Orders | § 333.13 Acceptance and rejection of rated orders. | FEMA | (a) Mandatory acceptance. (1) Except as otherwise specified in this section, a person must accept every rated order received and must fill such orders regardless of any other rated or unrated orders that have been accepted. (2) A person must not discriminate against rated orders in any manner such as by charging higher prices or by imposing different terms and conditions than for comparable unrated orders. (b) Mandatory rejection. Unless otherwise directed by FEMA: (1) A person must not accept a rated order for delivery on a specific date if unable to fill the order by that date. However, the person must inform the customer of the earliest date on which delivery can be made and offer to accept the order on the basis of that date. Scheduling conflicts with previously accepted lower rated or unrated orders are not sufficient reason for rejection under this section. (2) A person must not accept a DO rated order for delivery on a date which would interfere with delivery of any previously accepted DO or DX rated orders. However, the person must offer to accept the order based on the earliest delivery date otherwise possible. (3) A person must not accept a DX rated order for delivery on a date which would interfere with delivery of any previously accepted DX rated orders, but must offer to accept the order based on the earliest delivery date otherwise possible. (4) If a person is unable to fill all the rated orders of equal priority status received on the same day, the person must accept, based upon the earliest delivery dates, only those orders which can be filled, and reject the other orders. For example, a person must accept order A requiring delivery on December 15 before accepting order B requiring delivery on December 31. However, the person must offer to accept the rejected orders based on the earliest delivery dates otherwise possible. (c) Optional rejection. Unless otherwise directed by FEMA, rated orders may be rejected in any of the following cases as long as a supplier does not discriminate amo… | ||||
| 44:44:1.0.1.6.81.4.10.5 | 44 | Emergency Management and Assistance | I | F | 333 | PART 333—EMERGENCY MANAGEMENT PRIORITIES AND ALLOCATIONS SYSTEM | D | Subpart D—Priorities and Placement of Rated Orders | § 333.14 Preferential scheduling. | FEMA | (a) A person must schedule operations, including the acquisition of all needed production items, in a timely manner to satisfy the delivery requirements of each rated order. Modifying production or delivery schedules is necessary only when required delivery dates for rated orders cannot otherwise be met. (b) DO rated orders must be given production preference over unrated orders, if necessary, to meet required delivery dates, even if this requires the diversion of items being processed or ready for delivery against unrated orders. Similarly, DX rated orders must be given preference over DO rated orders and unrated orders. (1) Examples: If a person receives a DO rated order with a delivery date of June 3 and if meeting that date would mean delaying production or delivery of an item for an unrated order, the unrated order must be delayed. If a DX rated order is received calling for delivery on July 15 and a person has a DO rated order requiring delivery on June 2 and operations can be scheduled to meet both deliveries, there is no need to alter production schedules to give any additional preference to the DX rated order. However, if business operations cannot be altered to meet both the June 3 and July 15 delivery dates, then the DX rated order must be given priority over the DO rated order. (2) [Reserved] (c) Conflicting rated orders. (1) If a person finds that delivery or performance against any accepted rated orders conflicts with the delivery or performance against other accepted rated orders of equal priority status, the person must give preference to the conflicting orders in the sequence in which they are to be delivered or performed (not to the receipt dates). If the conflicting rated orders are scheduled to be delivered or performed on the same day, the person must give preference to those orders which have the earliest receipt dates. (2) If a person is unable to resolve rated order delivery or performance conflicts under this section, the person should promptly seek special priorities assistance … | ||||
| 44:44:1.0.1.6.81.4.10.6 | 44 | Emergency Management and Assistance | I | F | 333 | PART 333—EMERGENCY MANAGEMENT PRIORITIES AND ALLOCATIONS SYSTEM | D | Subpart D—Priorities and Placement of Rated Orders | § 333.15 Extension of priority ratings. | FEMA | (a) A person must use rated orders with suppliers to obtain items needed to fill a rated order. The person must use the priority rating indicated on the customer's rated order, except as otherwise provided in this part or as directed by FEMA. (b) The priority rating must be included on each successive order placed to obtain items needed to fill a customer's rated order. Therefore, the inclusion of the rating will continue from contractor to subcontractor to supplier throughout the entire supply chain. (c) A person must use rated orders with suppliers to obtain items needed to fill an emergency preparedness rated order. That person must require acceptance or rejection, and transmission of that acceptance or rejection by the supplier within the time limit stated in the rated order that is being filled. | ||||
| 44:44:1.0.1.6.81.4.10.7 | 44 | Emergency Management and Assistance | I | F | 333 | PART 333—EMERGENCY MANAGEMENT PRIORITIES AND ALLOCATIONS SYSTEM | D | Subpart D—Priorities and Placement of Rated Orders | § 333.16 Changes or cancellations of priority ratings and rated orders. | FEMA | (a) The priority rating on a rated order may be changed or cancelled by: (1) An official action of FEMA; or (2) Written electronic notification from the person who placed the rated order (including a Delegate Agency). (b) If an unrated order is amended so as to make it a rated order, or a DO rating is changed to a DX rating, the supplier must give the appropriate preferential treatment to the order as of the date the change is received by the supplier. (c) An amendment to a rated order that significantly alters a supplier's original production or delivery schedule shall constitute a new rated order as of the date of its receipt. The supplier must accept or reject the amended order according to the provisions of § 333.13. (d) The following amendments do not constitute a new rated order: A change in shipping destination; A reduction in the total amount of the order; an increase in the total amount of the order which has negligible impact upon deliveries; a minor variation in size or design (prior to the start of production); or a change which is agreed upon between the supplier and the customer. (e) A person must cancel any rated orders that the person (or a predecessor in interest) has placed with suppliers or cancel the priority ratings on those orders if the person no longer needs the items in those orders to fill a rated order. (f) A person adding a rating to an unrated order, or changing or cancelling a priority rating must promptly provide written electronic notification to all suppliers to whom the order was sent of the addition, change, or cancellation. | ||||
| 44:44:1.0.1.6.81.4.10.8 | 44 | Emergency Management and Assistance | I | F | 333 | PART 333—EMERGENCY MANAGEMENT PRIORITIES AND ALLOCATIONS SYSTEM | D | Subpart D—Priorities and Placement of Rated Orders | § 333.17 Use of rated orders. | FEMA | (a) A person must use rated orders to obtain: (1) Items which will be physically incorporated into other items to fill rated orders, including that portion of such items normally consumed, or converted into scrap or by-products, in the course of processing; (2) Containers or other packaging materials required to make delivery of the finished items against rated orders; (3) Services, other than contracts of employment, needed to fill rated orders; and (4) MRO needed to produce the finished items to fill rated orders. (b) A person may use a rated order to replace inventoried items (including finished items) if such items were used to fill rated orders, as follows: (1) The order must be placed within 90 days of the date of use of the inventory. (2) A DO rating symbol and the program identification symbol indicated on the customer's rated order must be used on the order. A DX rating symbol may not be used even if the inventory was used to fill a DX rated order. (3) If the priority ratings on rated orders from one customer or several customers contain different program identification symbols, the rated orders may be combined. (c) A person may combine DX and DO rated orders from one customer or several customers if the items covered by each level of priority are identified separately and clearly. (d) Combining rated and unrated orders. (1) A person may combine rated and unrated order quantities on one purchase order provided that: (i) The rated quantities are separately and clearly identified; and (ii) The elements of a rated order, as required by § 333.12, are included on the order with the statement required in § 333.12(d) modified to read in substance: “This purchase order contains rated order quantities certified for national defense use, and you are required to follow all the provisions of the Emergency Management Priorities and Allocations System regulations (44 CFR part 333) as it pertains to the rated quantities.” (2) A supplier must accept or reject the rated portion of the purchase order as pro… | ||||
| 44:44:1.0.1.6.81.4.10.9 | 44 | Emergency Management and Assistance | I | F | 333 | PART 333—EMERGENCY MANAGEMENT PRIORITIES AND ALLOCATIONS SYSTEM | D | Subpart D—Priorities and Placement of Rated Orders | § 333.18 Limitations on placing rated orders. | FEMA | (a) General limitations on placing rated orders. A person may not place a DO or DX rated order pursuant to this part unless the person is in receipt of a rated order, has been explicitly authorized to do so by FEMA or a Delegate Agency or is otherwise permitted to do so by this part. (b) Specific limitations on placing rated orders. Rated orders may not be used to obtain: (1) Delivery on a date earlier than needed; (2) A greater quantity of the item than needed, except to obtain a minimum procurable quantity. Separate rated orders may not be placed solely for the purpose of obtaining minimum procurable quantities on each order if the minimum procurable quantity would be sufficient to cover more than one rated order; (3) Items in advance of the receipt of a rated order, except as specifically authorized by FEMA (see § 333.21(c) for information on obtaining authorization for a priority rating in advance of a rated order); or (4) Any of the following items unless specific priority rating authority has been obtained from FEMA, a Delegate Agency, or the Department of Commerce: (i) Items for plant improvement, expansion, or construction, unless they will be physically incorporated into a construction project covered by a rated order; or (ii) Production or construction equipment or items to be used for the manufacture of production equipment (for information on requesting priority rating authority, see § 333.21). (5) Any items related to the development of chemical or biological 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. | ||||
| 44:44:1.0.1.6.81.5.10.1 | 44 | Emergency Management and Assistance | I | F | 333 | PART 333—EMERGENCY MANAGEMENT PRIORITIES AND ALLOCATIONS SYSTEM | E | Subpart E—Special Priorities Assistance | § 333.20 General provisions. | FEMA | [85 FR 28510, May 13, 2020, as amended at 86 FR 1292, Jan. 8, 2021] | (a) EMPAS is designed to be largely self-executing. However, if production or delivery problems arise, a person should immediately contact FEMA (or the Delegate Agency, as appropriate) for special priorities assistance pursuant to §§ 333.20 through 333.24 and as directed by § 333.83. If FEMA (or the Delegate Agency, as appropriate) is unable to resolve the problem or to authorize the use of a priority rating and believes additional assistance is warranted, FEMA (or the Delegate Agency, as appropriate) may forward the request to another resource agency, as appropriate, for action. Special priorities assistance is a service provided to alleviate problems. (b) Special priorities assistance can be provided for any reason consistent with this part, such as assisting in obtaining timely deliveries of items needed to satisfy rated orders or authorizing the use of priority ratings on orders to obtain items not otherwise ratable under this part. Special priorities assistance may also be used to request rating authority for items that are not normally eligible for priority treatment. (c) A request for special priorities assistance or priority rating authority may be submitted on FEMA Form 009-0-142 (OMB control number 1660-0149) to FEMA. Form 009-0-142 may be obtained from the Delegate Agency or from FEMA. | |||
| 44:44:1.0.1.6.81.5.10.2 | 44 | Emergency Management and Assistance | I | F | 333 | PART 333—EMERGENCY MANAGEMENT PRIORITIES AND ALLOCATIONS SYSTEM | E | Subpart E—Special Priorities Assistance | § 333.21 Requests for priority rating authority. | FEMA | (a) If a rated order is likely to be delayed because a person is unable to obtain items not normally rated under this part, the person may request the authority to use a priority rating in ordering the needed items. (b) Rating authority for production or construction equipment. (1) A request for priority rating authority for production or construction equipment, if needed, must be submitted to the U.S. Department of Commerce on Form BIS-999. (2) When the use of a priority rating is authorized for the procurement of production or construction equipment, a rated order may be used either to purchase or to lease such equipment. However, in the latter case, the equipment may be leased only from a person engaged in the business of leasing such equipment or from a person willing to lease rather than sell. (c) Rating authority in advance of a rated prime contract. (1) In certain cases, and upon specific request, FEMA, in order to promote the national defense, may authorize a person to place a priority rating on an order to a supplier in advance of the issuance of a rated prime contract. In these instances, the person requesting advance rating authority must obtain sponsorship of the request from FEMA or the appropriate Delegate Agency. The person shall also assume any business risk associated with the placing of rated orders if these orders have to be cancelled in the event the rated prime contract is not issued. (2) The person must state the following in the request: “It is understood that the authorization of a priority rating in advance of our receiving a rated prime contract from FEMA (or a Delegate Agency) and our use of that priority rating with our suppliers in no way commits the Delegate Agency, FEMA, or any other Federal Government agency to enter into a contract or order or to expend funds. Further, we understand that the Federal Government shall not be liable for any cancellation charges, termination costs, or other damages that may accrue if a rated prime contract is not eventually placed and, as a re… | ||||
| 44:44:1.0.1.6.81.5.10.3 | 44 | Emergency Management and Assistance | I | F | 333 | PART 333—EMERGENCY MANAGEMENT PRIORITIES AND ALLOCATIONS SYSTEM | E | Subpart E—Special Priorities Assistance | § 333.22 Examples of assistance. | FEMA | (a) While special priorities assistance may be provided for any reason in support of this part, it is usually provided in situations where: (1) A person is experiencing difficulty in obtaining delivery against a rated order by the required delivery date; or (2) A person cannot locate a supplier for an item needed to fill a rated order. (b) Other examples of special priorities assistance include: (1) Ensuring that rated orders receive preferential treatment by suppliers; (2) Resolving production or delivery conflicts between various rated orders; (3) Assisting in placing rated orders with suppliers; (4) Verifying the urgency of rated orders; and (5) Determining the validity of rated orders. | ||||
| 44:44:1.0.1.6.81.5.10.4 | 44 | Emergency Management and Assistance | I | F | 333 | PART 333—EMERGENCY MANAGEMENT PRIORITIES AND ALLOCATIONS SYSTEM | E | Subpart E—Special Priorities Assistance | § 333.23 Criteria for assistance. | FEMA | Requests for special priorities assistance should be timely, i.e., the request must be submitted promptly and in enough time for FEMA or the Delegate Agency to effect a meaningful resolution to the problem, and must establish that: (a) There is an urgent need for the item; and (b) The applicant has made a reasonable effort to resolve the problem. | ||||
| 44:44:1.0.1.6.81.5.10.5 | 44 | Emergency Management and Assistance | I | F | 333 | PART 333—EMERGENCY MANAGEMENT PRIORITIES AND ALLOCATIONS SYSTEM | E | Subpart E—Special Priorities Assistance | § 333.24 Instances where assistance will not be provided. | FEMA | Special priorities assistance is provided at the discretion of FEMA or the Delegate Agency when it is determined that such assistance is warranted to meet the objectives of this part. Examples where assistance may not be provided include situations when a person is attempting to: (a) Secure a price advantage; (b) Obtain delivery prior to the time required to fill a rated order; (c) Gain competitive advantage; (d) Disrupt an industry apportionment program in a manner designed to provide a person with an unwarranted share of scarce items; or (e) Overcome a supplier's regularly established terms of sale or conditions of doing business. | ||||
| 44:44:1.0.1.6.81.6.10.1 | 44 | Emergency Management and Assistance | I | F | 333 | PART 333—EMERGENCY MANAGEMENT PRIORITIES AND ALLOCATIONS SYSTEM | F | Subpart F—Allocation Actions | § 333.30 Policy. | FEMA | (a) Allocation orders will: (1) Be used only when there is insufficient supply of a material, service, or facility to satisfy national defense requirements through the use of the priorities authority or when the use of the priorities authority would cause a severe and prolonged disruption in the supply of materials, services, or facilities available to support normal U.S. economic activities; and (2) Not be used to ration materials or services at the retail level. (b) Allocation orders, when used, will be distributed equitably among the suppliers of the materials, services, or facilities being allocated and not require any person to relinquish a disproportionate share of the civilian market. (c) When a hazard has occurred or is imminent, an allocation order may be used without regard to paragraphs (a) and (b) of this section whenever it is deemed by the Administrator to be necessary or appropriate to promote the national defense. | ||||
| 44:44:1.0.1.6.81.6.10.2 | 44 | Emergency Management and Assistance | I | F | 333 | PART 333—EMERGENCY MANAGEMENT PRIORITIES AND ALLOCATIONS SYSTEM | F | Subpart F—Allocation Actions | § 333.31 General procedures. | FEMA | Before FEMA uses its allocations authority to address a supply problem within its resource jurisdiction, it will develop a plan that includes: (a) A copy of the written determination that the program or programs that would be supported by the allocation action are necessary or appropriate to promote the national defense; (b) A detailed description of the situation to include any unusual events or circumstances that have created the requirement for an allocation action; (c) A statement of the specific objective(s) of the allocation action; (d) A list of the materials, services, or facilities to be allocated; (e) A list or description of the sources of the materials, services, or facilities that will be subject to the allocation action; (f) A detailed description of the provisions that will be included in the allocation orders, including the type(s) of allocation orders, the percentages or quantity of capacity or output to be allocated for each purpose, and the duration of the allocation action ( e.g., anticipated start and end dates); (g) An evaluation of the impact of the proposed allocation action on the civilian market; and (h) Proposed actions, if any, to mitigate disruptions to civilian market operations. | ||||
| 44:44:1.0.1.6.81.6.10.3 | 44 | Emergency Management and Assistance | I | F | 333 | PART 333—EMERGENCY MANAGEMENT PRIORITIES AND ALLOCATIONS SYSTEM | F | Subpart F—Allocation Actions | § 333.32 Controlling the general distribution of a material in the civilian market. | FEMA | No allocation action by FEMA may be used to control the general distribution of a material in the civilian market unless the President, the Administrator, or another official with lawful authority under section 101(b) of the Act has made a written finding that: (a) Such material is a scarce and critical material essential to the national defense, and (b) The requirements of the national defense for such material cannot otherwise be met without creating a significant dislocation of the normal distribution of such material in the civilian market to such a degree as to create appreciable hardship. | ||||
| 44:44:1.0.1.6.81.6.10.4 | 44 | Emergency Management and Assistance | I | F | 333 | PART 333—EMERGENCY MANAGEMENT PRIORITIES AND ALLOCATIONS SYSTEM | F | Subpart F—Allocation Actions | § 333.33 Types of allocation orders. | FEMA | There are three types of allocation orders available for communicating allocation actions. (a) Set-aside. A set-aside is an official action that requires a person to reserve materials, services, or facilities capacity in anticipation of the receipt of rated orders. (b) Directive. A directive is an official action that requires a person to take or refrain from taking certain actions in accordance with its provisions. For example, a directive can require a person to: Stop or reduce production of an item; prohibit the use of selected materials, services, or facilities; or divert the use of materials, services, or facilities from one purpose to another. (c) Allotment. An allotment is an official action that specifies the maximum quantity of a material, service, or facility authorized for a specific use to promote the national defense. | ||||
| 44:44:1.0.1.6.81.6.10.5 | 44 | Emergency Management and Assistance | I | F | 333 | PART 333—EMERGENCY MANAGEMENT PRIORITIES AND ALLOCATIONS SYSTEM | F | Subpart F—Allocation Actions | § 333.34 Elements of an allocation order. | FEMA | Allocation orders may be issued directly to the affected persons or by constructive notice through publication in the Federal Register. This section describes the elements that each order must include. (a) Elements to be included in all allocation orders. (1) A detailed description of the required allocation action(s), including its relationship to previously or subsequently received DX rated orders, DO rated orders, and unrated orders. (2) Specific start and end calendar dates for each required allocation action. (b) Elements to be included in orders issued directly to affected persons. (1) A statement that reads in substance: “This is an allocation order certified for national defense use. [Insert the name of the person receiving the order] is required to comply with this order, in accordance with the provisions of the Emergency Management Priorities and Allocations System regulations (44 CFR part 333), which is part of the Federal Priorities and Allocations System.” (2) The written signature on a manually placed order, or the digital signature or name on an electronically placed order, of the FEMA Administrator. (c) Elements to be included in an allocation order that gives constructive notice through publication in the Federal Register . (1) A statement that reads in substance: “This is an allocation order certified for national defense use. [Insert the name(s) of the person(s) to whom the order applies or a description of the class of persons to whom the order applies] is (are) required to comply with this order, in accordance with the provisions of the Emergency Management Priorities and Allocations System regulations (44 CFR part 333), which is part of the Federal Priorities and Allocations System.” (2) The order must be signed by the FEMA Administrator. | ||||
| 44:44:1.0.1.6.81.6.10.6 | 44 | Emergency Management and Assistance | I | F | 333 | PART 333—EMERGENCY MANAGEMENT PRIORITIES AND ALLOCATIONS SYSTEM | F | Subpart F—Allocation Actions | § 333.35 Mandatory acceptance of an allocation order. | FEMA | (a) Except as otherwise specified in this section, a person must accept and comply with every allocation order received. (b) A person must not discriminate against an allocation order in any manner such as by charging higher prices for materials, services, or facilities covered by the order or by imposing terms and conditions for contracts and orders involving allocated materials, services, or facilities that differ from the person's terms and conditions for contracts and orders for the materials, services, or facilities prior to receiving the allocation order. (c) If a person is unable to comply fully with the required action(s) specified in an allocation order, the person must notify FEMA immediately, explain the extent to which compliance is possible, and give the reasons why full compliance is not possible. If notification is given verbally, written, electronic confirmation must be provided within 24 hours. Such notification does not release the person from complying with the order to the fullest extent possible, until the person is notified by FEMA that the order has been changed or cancelled. | ||||
| 44:44:1.0.1.6.81.6.10.7 | 44 | Emergency Management and Assistance | I | F | 333 | PART 333—EMERGENCY MANAGEMENT PRIORITIES AND ALLOCATIONS SYSTEM | F | Subpart F—Allocation Actions | § 333.36 Changes or cancellations of allocation orders. | FEMA | An allocation order may be changed or cancelled by an official action from FEMA. Notice of such changes or cancellations may be provided directly to persons to whom the order being cancelled or modified applies or constructive notice may be provided by publication in the Federal Register . | ||||
| 44:44:1.0.1.6.81.8.10.1 | 44 | Emergency Management and Assistance | I | F | 333 | PART 333—EMERGENCY MANAGEMENT PRIORITIES AND ALLOCATIONS SYSTEM | H | Subpart H—Official Actions | § 333.50 General provisions. | FEMA | (a) FEMA may, from time-to-time, take specific official actions to implement or enforce the provisions of this part. (b) Some of these official actions (rating authorizations and letters and memoranda of understanding) are discussed in this subpart. Official actions that pertain to compliance (administrative subpoenas, demands for information, and inspection authorizations) are discussed in § 333.61(c). Directives are discussed in § 333.52. | ||||
| 44:44:1.0.1.6.81.8.10.2 | 44 | Emergency Management and Assistance | I | F | 333 | PART 333—EMERGENCY MANAGEMENT PRIORITIES AND ALLOCATIONS SYSTEM | H | Subpart H—Official Actions | § 333.51 Rating authorizations. | FEMA | (a) A rating authorization is an official action granting specific priority rating authority that: (1) Permits a person to place a priority rating on an order for an item not normally ratable under this part; or (2) Authorizes a person to modify a priority rating on a specific order or series of contracts or orders. (b) To request priority rating authority, see § 333.21. | ||||
| 44:44:1.0.1.6.81.8.10.3 | 44 | Emergency Management and Assistance | I | F | 333 | PART 333—EMERGENCY MANAGEMENT PRIORITIES AND ALLOCATIONS SYSTEM | H | Subpart H—Official Actions | § 333.52 Directives. | FEMA | (a) A directive is an official action which requires a person to take or refrain from taking certain actions in accordance with its provisions. (b) A person must comply with each directive issued. However, a person may not use or extend a directive to obtain any items from a supplier, unless expressly authorized to do so in the directive. (c) A priorities directive takes precedence over all DX-rated orders, DO-rated orders, and unrated orders 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. | ||||
| 44:44:1.0.1.6.81.8.10.4 | 44 | Emergency Management and Assistance | I | F | 333 | PART 333—EMERGENCY MANAGEMENT PRIORITIES AND ALLOCATIONS SYSTEM | H | Subpart H—Official Actions | § 333.53 Letters and memoranda of understanding. | FEMA | (a) A letter or memorandum of understanding is an official action, which may be issued electronically, to resolve special priorities assistance cases to reflect an agreement reached by all parties (FEMA, the Department of Commerce (if applicable), a Delegate Agency (if applicable), the supplier, and the customer). (b) A letter or memorandum of understanding is not used to alter scheduling between rated orders, to authorize the use of priority ratings, to impose restrictions under this part, or to take other official actions. Rather, letters or memoranda of understanding are used to confirm production or shipping schedules which do not require modifications to other rated orders. | ||||
| 44:44:1.0.1.6.81.9.10.1 | 44 | Emergency Management and Assistance | I | F | 333 | PART 333—EMERGENCY MANAGEMENT PRIORITIES AND ALLOCATIONS SYSTEM | I | Subpart I—Compliance | § 333.60 General provisions. | FEMA | (a) Compliance actions may be taken for any reason necessary or appropriate to the enforcement or the administration of the Defense Production Act and related statutes, this part, or an official action. Compliance actions include audits, investigations, or other inquiries and FEMA may utilize other official actions, such as administrative subpoenas, demands for information, and inspection authorizations as part of the compliance actions under this part. (b) Any person who places or receives a rated order or an allocation order must comply with the provisions of this part. (c) Willful violation of any of the provisions of Title I or section 705 of the Defense Production Act and other applicable statutes, this part, or an official action of FEMA, is a criminal act, punishable as provided in the Defense Production Act and other applicable statutes, and as set forth in § 333.64 of this part. | ||||
| 44:44:1.0.1.6.81.9.10.2 | 44 | Emergency Management and Assistance | I | F | 333 | PART 333—EMERGENCY MANAGEMENT PRIORITIES AND ALLOCATIONS SYSTEM | I | Subpart I—Compliance | § 333.61 Audits and investigations. | FEMA | (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, FEMA must: (1) Define the scope and purpose in the official action given to the person under investigation, and (2) Have ascertained that the information sought, or other adequate and authoritative data are not available from any Federal or other responsible agency. (c) In administering this part, FEMA may issue the following documents, which constitute official actions: (1) Administrative subpoenas. An administrative subpoena requires a person to appear as a witness before an official designated by FEMA to testify under oath on matters of which that person has knowledge relating to the enforcement or the administration of the Defense Production Act and other applicable statutes, this part, or official actions. An administrative subpoena may also require the production of books, papers, records, documents and physical objects or property. (2) Demand for information. A demand for information requires a person to furnish to a duly authorized representative of FEMA any information necessary or appropriate to the enforcement or the administration of the Defense Production Act and other applicable statutes, this part, or official actions. (3) Inspection authorizations. An inspection authorization requires a person to permit a duly authorized representative of FEMA to interview the person's employees or agents; to inspect books, records, documents, other writings and information, including electronically-stored information, in the person's possession or control at the place where that person usually keeps them or ot… | ||||
| 44:44:1.0.1.6.81.9.10.3 | 44 | Emergency Management and Assistance | I | F | 333 | PART 333—EMERGENCY MANAGEMENT PRIORITIES AND ALLOCATIONS SYSTEM | I | Subpart I—Compliance | § 333.62 Compulsory process. | FEMA | (a) If a person refuses to permit a duly authorized representative of FEMA to have access to any premises or source of information necessary to the administration or enforcement of the Defense Production Act and other applicable statutes, this part, or official actions, FEMA may seek compulsory process. Compulsory process means the institution of appropriate legal action, including ex parte application for an inspection warrant or its equivalent, in any forum of appropriate jurisdiction. (b) Compulsory process may be sought in advance of an audit, investigation, or other inquiry, if, in the judgment of the Administrator, in consultation with the FEMA Chief Counsel, there is reason to believe that a person will refuse to permit an audit, investigation, or other inquiry, or that other circumstances exist which make such process desirable or necessary. | ||||
| 44:44:1.0.1.6.81.9.10.4 | 44 | Emergency Management and Assistance | I | F | 333 | PART 333—EMERGENCY MANAGEMENT PRIORITIES AND ALLOCATIONS SYSTEM | I | Subpart I—Compliance | § 333.63 Notification of failure to comply. | FEMA | (a) At the conclusion of an audit, investigation, or other inquiry, or at any other time, FEMA may inform the person in writing where compliance with the requirements of the Defense Production Act and other applicable statutes, this part, or an official action were not met. (b) In cases where FEMA determines that a person, either willingly or inadvertently, has failed to comply with the provisions of the Defense Production Act and other applicable statutes, this part, or an official action, the person may be informed in writing of the particulars involved and the corrective action to be taken. Failure to take corrective action may then be construed as a willful violation of the Defense Production Act and other applicable statutes, this part, or an official action. | ||||
| 44:44:1.0.1.6.81.9.10.5 | 44 | Emergency Management and Assistance | I | F | 333 | PART 333—EMERGENCY MANAGEMENT PRIORITIES AND ALLOCATIONS SYSTEM | I | Subpart I—Compliance | § 333.64 Violations, penalties, and remedies. | FEMA | (a) Willful violation of the provisions of Title I or Sections 705 or 707 of the Defense Production Act, this part, or an official action, is a crime and upon conviction, a person may be punished by fine or imprisonment, or both. The maximum penalty provided by the Defense Production Act is a $10,000 fine, or one year in prison, or both. (b) The government may also seek an injunction from a court of appropriate jurisdiction to prohibit the continuance of any violation of, or to enforce compliance with, the Defense Production Act and other applicable statutes, this part, or an official action. (c) In order to secure the effective enforcement of the Defense Production Act and other applicable statutes, this part, and official actions, the following are prohibited (see section 705 of the Defense Production Act; see also, for example, sections 2 and 371 of Title 18 United States Code): (1) No person may solicit, influence, or permit another person to perform any act prohibited by, or to omit any act required by, the Defense Production Act and other applicable statutes, this part, or an official action. (2) No person may conspire or act in concert with any other person to perform any act prohibited by, or to omit any act required by, the Defense Production Act and other applicable statutes, this part, or an official action. (3) No person shall deliver any item if the person knows or has reason to believe that the item will be accepted, redelivered, held, or used in violation of the Defense Production Act and other applicable statutes, this part, or an official action. In such instances, the person must immediately notify FEMA that, in accordance with this section, delivery has not been made. | ||||
| 44:44:1.0.1.6.81.9.10.6 | 44 | Emergency Management and Assistance | I | F | 333 | PART 333—EMERGENCY MANAGEMENT PRIORITIES AND ALLOCATIONS SYSTEM | I | Subpart I—Compliance | § 333.65 Compliance conflicts. | FEMA | If compliance with any provision of the Defense Production Act and other applicable statutes, this part, or an official action would prevent a person from filling a rated order or from complying with another provision of the Defense Production Act, this part, or an official action, the person must immediately notify FEMA for resolution of the conflict. |
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CREATE TABLE cfr_sections (
section_id TEXT PRIMARY KEY,
title_number INTEGER,
title_name TEXT,
chapter TEXT,
subchapter TEXT,
part_number TEXT,
part_name TEXT,
subpart TEXT,
subpart_name TEXT,
section_number TEXT,
section_heading TEXT,
agency TEXT,
authority TEXT,
source_citation TEXT,
amendment_citations TEXT,
full_text TEXT
);
CREATE INDEX idx_cfr_title ON cfr_sections(title_number);
CREATE INDEX idx_cfr_part ON cfr_sections(part_number);
CREATE INDEX idx_cfr_agency ON cfr_sections(agency);