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Federal Register / Vol. 86, No. 5 / Friday, January 8, 2021 / Rules and Regulations
the vaccine given HHSs expertise in the field and long-standing resource authority in the area. Thus, FEMA is not revising the interim final rule in this regard. Finally, one commenter stated her lack of trust in vaccines and indicated she did not want vaccines to be required for school attendance. The EMPAS regulations set standards and procedures for priority and allocation orders for health and medical resources to promote the national defense in response to the COVID19 pandemic.
The regulations do not require individuals to be vaccinated.
III. Technical Changes This rule makes technical changes to the interim final rule. The authority citation for the final rule is being updated to include DHS Delegation Number 09052 Rev. 00 Jan. 3, 2017, and to make non-substantive formatting revisions to authorities previously included. The interim final rule contained a placeholder reference to an OMB clearance number for an information collection under the Paperwork Reduction Act. See 44 CFR
333.20c. OMB issued the related Paperwork Reduction Act Notice of Action on May 13, 2020, the same day the interim final rule published in the Federal Register. As a result of OMBs action, FEMA now has a permanent OMB clearance number. Therefore, FEMA is removing from 333.20c the placeholder reference, 1660NW122
and adding in its place the permanent number, 16600149.
IV. Regulatory Analysis A. Administrative Procedure Act APA
This rule is effective immediately because the delayed effective date generally required by the APA is unnecessary. See 5 U.S.C. 553d3. The interim final rule that this final rule makes final, with only technical changes, is already in effect.

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B. Executive Order 12866, Regulatory Planning and Review, Executive Order 13563, Improving Regulation and Regulatory Review, and Executive Order 13771, Reducing Regulation and Controlling Regulatory Costs Executive Orders 12866 Regulatory Planning and Review and 13563
Improving Regulation and Regulatory Review direct agencies to assess the costs and benefits of available regulatory alternatives and, if regulation is necessary, to select regulatory approaches that maximize net benefits including potential economic, environmental, public health and safety effects, distributive impacts, and
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equity. Executive Order 13563
emphasizes the importance of quantifying both costs and benefits, of reducing costs, of harmonizing rules, and of promoting flexibility. Executive Order 13771 Reducing Regulation and Controlling Regulatory Costs directs agencies to reduce regulation and control regulatory costs and provides that for every one new regulation issued, at least two prior regulations be identified for elimination, and that the cost of planned regulations be prudently managed and controlled through a budgeting process.
This final rule has been drafted and reviewed in accordance with Executive Order 12866. This rule has been designated a significant regulatory action and economically significant under Section 3f of Executive Order 12866. Accordingly, the rule has been reviewed by the Office of Management and Budget.
This final rule adopts the interim final rule IFR that established 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. Accordingly, relative to a post-IFR baseline, this final rule has no economic impact. Below, FEMA also examines the rules impacts relative to a pre-IFR baseline.
This rule sets criteria and procedures under which FEMA will authorize prioritization of certain orders or contracts as well as criteria under which FEMA will issue orders allocating materials, services, and facilities. Under prioritization, FEMA will designate certain orders as one of two possible priority levels. Once so designated, such orders are referred to as rated orders.
The recipient of a rated order must give it priority over an unrated order or an order with a lower priority rating. A
recipient of a rated order may place orders of the same priority level with their suppliers and subcontractors for supplies and services necessary to fulfill FEMAs rated order. The suppliers and subcontractors must treat the request from the recipient as a rated order with the same priority level as the original rated order. The rule does not require recipients to fulfill rated orders if the price or terms of sale are not consistent with the price or terms of sale of similar non-rated orders. The rule provides a defense from any liability for damages or penalties for any action or inaction
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required to maintain compliance with the rule.
The impact of EMPAS on private companies receiving priority orders is expected to vary. FEMAs issuance of a priority-rated order will generally only modify the timing in which other orders are completed. Deferred orders may face delays, which impose a burden on potential recipients of these orders.
FEMAs exercise of its priorities and allocations authorities under section 101 of the DPA and EMPAS is expected to have an overall positive impact on the U.S. public and industry by creating a framework by which FEMA exercises its delegated authorities, as discussed above.
Since implementation of the regulation in May, FEMA has modified and extended an allocation order allocating certain scarce and critical materials for domestic use to ensure those resources were not exported from the United States without specific approval by FEMA, and FEMA
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 COVID
19 pandemic. FEMA is also better prepared should delegations of priorities and allocations authority for other types of resources be issued in the future.
C. Regulatory Flexibility Act The Regulatory Flexibility Act RFA
5 U.S.C. 601 et seq. requires an agency to consider the impacts of certain rules on small entities. The RFAs regulatory flexibility analysis requirements apply to only those rules for which an agency was required to publish a general notice of proposed rulemaking pursuant to 5
U.S.C. 553b or any other law. See 5
U.S.C. 604a. As discussed previously, FEMA did not issue a notice of proposed rulemaking for this action, and was not required to do so under any law. Thus, the RFAs requirements relating to a final regulatory flexibility analysis do not apply.
D. Unfunded Mandates Reform Act of 1995
As noted above, no notice of proposed rulemaking was published in advance of this action. Therefore, the written statement provisions of the Unfunded Mandates Reform Act of 1995, as amended, do not apply to this regulatory action. See 2 U.S.C. 1532.

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