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Federal Register / Vol. 86, No. 5 / Friday, January 8, 2021 / Rules and Regulations
FAST41 means Title 41 of the Fixing Americas Surface Transportation Act, 42 U.S.C. 4370m et seq.
Federal Permitting Improvement Steering Council or Permitting Council means the Federal agency established pursuant to 42 U.S.C. 4370m1a.
Mining means the process of extracting ore, minerals, or raw materials from the ground. Mining does not include the process of extracting oil or natural gas from the ground.
1900.2

FAST41 sectors.

Pursuant to 42 U.S.C. 4370m6A, the Federal Permitting Improvement Steering Council has added the following sectors to the statutorily defined list of FAST41 sectors:
a Mining.
b Reserved Nicholas Falvo, Attorney Advisor, Federal Permitting Improvement Steering Council.
FR Doc. 202100088 Filed 1721; 8:45 am BILLING CODE 6820PLP

DEPARTMENT OF HOMELAND
SECURITY
Federal Emergency Management Agency 44 CFR Part 333
Docket ID FEMA20200019
RIN 1660AB04

Emergency Management Priorities and Allocations System EMPAS
Federal Emergency Management Agency, Department of Homeland Security DHS.
ACTION: Final rule.
AGENCY:

This final rule adopts, with minor technical edits, an interim final rule with request for comments published in the Federal Register on May 13, 2020, establishing standards and procedures by which the Federal Emergency Management Agency FEMA may require certain contracts or orders that promote the national defense be given priority over other contracts or orders and setting new standards and procedures by which FEMA may allocate materials, services, and facilities to promote the national defense under emergency and nonemergency conditions pursuant to section 101 of the Defense Production Act of 1950, as amended. These regulations are part of FEMAs response to the ongoing COVID19 emergency.
DATES: Effective Date: This final rule is effective January 8, 2021.

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SUMMARY:

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FOR FURTHER INFORMATION CONTACT:

Marc Geier, Office of Policy and Program Analysis, 2029240196, FEMA-DPA@fema.dhs.gov.
SUPPLEMENTARY INFORMATION:
I. Background and Legal Authority On May 13, 2020, FEMA published in the Federal Register an interim final rule establishing standards and procedures by which FEMA may require certain contracts or orders that promote the national defense be given priority over other contracts or orders and setting new standards and procedures by which FEMA may allocate materials, services, and facilities to promote the national defense under emergency and non-emergency conditions pursuant to section 101 of the Defense Production Act of 1950, as amended. See 85 FR
28500.
Section 101 of the Defense Production Act of 1950, as amended DPA or the Act, authorizes the President to require that performance under contracts or orders other than contracts of employment which the President deems necessary or appropriate to promote the national defense take priority over performance under any other contract or order. For the purpose of assuring such priority, the President may require acceptance and performance of such contracts or orders in preference to other contracts or orders by any person the President finds to be capable of their performance.1
Section 101 also authorizes the President to allocate materials, services, and facilities in such manner, upon such conditions, and to such extent as the President shall deem necessary or appropriate to promote the national defense.2 Executive Order 13911, Delegating Additional Authority Under the Defense Production Act With Respect to Health and Medical Resources To Respond to the Spread of COVID19, 85 FR 18403 Apr. 1, 2020, delegated the Presidents authority under Section 101 to the Secretary of Homeland Security with respect to health and medical resources needed to respond to the spread of Coronavirus Disease 2019 COVID19 within the United States. The Secretary of Homeland Security has further delegated these authorities to the FEMA
Administrator.3 FEMA published its interim final rule to comply with Section 101d, which requires agencies 1 50

U.S.C. 4511a1.
U.S.C. 4511a2.
3 DHS Delegation 09052 Rev. 00.1, Delegation of Defense Production Act Authority to the Administrator of the Federal Emergency Management Agency Apr. 1, 2020.
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delegated authority under Section 101
to issue final rules to establish standards and procedures by which the priorities and allocations authority is used to promote the national defense.
The interim final rule established the Emergency Management Priorities and Allocations System EMPAS, which became part of the Federal Priorities and Allocations System FPAS, the body of regulations that establishes standards and procedures for implementing the Presidents authority under Section 101a of the DPA. This rule finalizes the interim final rule.
II. Discussion Public Comments and FEMAs Responses The public comment period on the interim final rule closed on June 12, 2020, and four germane public comments were received. One comment was generally supportive of the regulation, pointing out that having the EMPAS rule in place allows FEMA to leverage the DPA in response to the COVID19 pandemic over an extended period of time or eventually extend it to more general emergency preparedness activities. Given the ongoing COVID19
pandemic, FEMA is considering use of the EMPAS regulation to combat the COVID19 pandemic over an extended period of time. Since implementation of the regulation in May, FEMA has modified and extended an order allocating certain scarce and critical materials for domestic use to ensure the resources were not exported from the United States without specific approval by FEMA, and continues to consider options for using EMPAS to address mission needs. See 85 FR 48113 Aug.
10, 2020. Finalizing the EMPAS
regulation allows FEMA to respond to public comments in a timely manner and ensures FEMAs continued ability to use its authorities as appropriate in response to the COVID19 pandemic.
FEMA is also better prepared should delegations of priorities and allocations authority for other types of resources be issued in the future, as it will already have a regulatory framework in place.
The commenter suggested that EMPAS authority should be extended to include vaccine active ingredients as well as adjuvant or booster additions to vaccines; measures to permit fill and finish of large numbers of vaccine doses, including glass vials and other packaging; and provide for distribution systems and medical facilities to distribute vaccines when available at the most rapid rate. FEMAs authority pursuant to EMPAS is clear; the
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