1288 Federal Register / Vol. 86, No. 5 / Friday, January 8, 2021 / Rules and Regulations 

1 50 U.S.C. 4511(a)(1). 

2 50 U.S.C. 4511(a)(2). 

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). 

FAST–41 means Title 41 of the Fixing 

America’s 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. 4370m–1(a). 

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 FAST–41 sectors. 

Pursuant to 42 U.S.C. 4370m(6)(A), 

the Federal Permitting Improvement 

Steering Council has added the 

following sectors to the statutorily 

defined list of FAST–41 sectors: 

(a) Mining. 

(b) [Reserved] 

Nicholas Falvo, 

Attorney Advisor, Federal Permitting 

Improvement Steering Council. 

[FR Doc. 2021–00088 Filed 1–7–21; 8:45 am] 

BILLING CODE 6820–PL–P 

DEPARTMENT OF HOMELAND 

SECURITY 

Federal Emergency Management 

Agency 

44 CFR Part 333 

[Docket ID FEMA–2020–0019] 

RIN 1660–AB04 

Emergency Management Priorities and 

Allocations System (EMPAS) 

AGENCY: Federal Emergency 

Management Agency, Department of 

Homeland Security (DHS). 

ACTION: Final rule. 

SUMMARY: 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 FEMA’s response 

to the ongoing COVID–19 emergency. 

DATES: Effective Date: This final rule is 

effective January 8, 2021. 

FOR FURTHER INFORMATION CONTACT: 

Marc Geier, Office of Policy and 

Program Analysis, 202–924–0196, 

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 

COVID–19,’’ 85 FR 18403 (Apr. 1, 2020), 

delegated the President’s 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 (COVID–19) 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 101(d), which requires agencies 

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 

President’s authority under Section 

101(a) of the DPA. This rule finalizes 

the interim final rule. 

II. Discussion Public Comments and 

FEMA’s 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 

COVID–19 pandemic over an extended 

period of time or eventually extend it to 

more general emergency preparedness 

activities. Given the ongoing COVID–19 

pandemic, FEMA is considering use of 

the EMPAS regulation to combat the 

COVID–19 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 FEMA’s 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, 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. FEMA’s authority 

pursuant to EMPAS is clear; the 


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Federal Register / Vol. 86, No. 5 / Friday, January 8, 2021 / Rules and Regulations 1289 

4See Executive Order 13911, 85 FR 18403 (Apr. 

1, 2020), DHS Delegation 09052 Rev. 00 ‘‘Delegation 

of Defense Production Act Authority to the 

Administrator of the Federal Emergency 

Management Agency’’ (Jan. 3, 2017), and DHS 

Delegation 09052 Rev. 00.1, ‘‘Delegation of Defense 

Production Act Authority to the Administrator of 

the Federal Emergency Management Agency’’ (Apr. 

1, 2020). 

5See 45 CFR 101.20. 

6HHS has long held resource authority for health 

resources. See Executive Order 13603, 77 FR 16651 

(Mar. 22, 2012) and more recently Executive Order 

13909, 85 FR 16227 (Mar. 23, 2020). While 

Executive Order 13911 delegated the same 

authorities to DHS, HHS’s extensive expertise in 

this area would be required for any vaccine 

development-related efforts. 

7See 44 CFR 333.8. See also 45 CFR 101.20. 

President delegated FEMA 4 the 

authority to exercise section 101 of the 

DPA with respect to health and medical 

resources needed to respond to the 

spread of COVID–19 within the United 

States. The EMPAS regulation defines 

‘‘health and medical resources’’ as 

‘‘drugs, biological products, medical 

devices, materials, facilities, health 

supplies, services, and equipment 

required to diagnose, mitigate, prevent 

the impairment of, improve, treat, cure, 

or restore the physical or mental health 

conditions of the population.’’ This 

definition mirrors the definition of 

‘‘health resources’’ established by the 

Department of Health and Human 

Services (HHS) in their Health 

Resources Priority and Allocations 

System (HRPAS) regulation 5 to ensure 

consistency across agencies delegated 

authority by the President to utilize 

these resources to respond to the 

COVID–19 pandemic. Vaccines, which 

are defined as biological products under 

section 351(i) of the Public Health 

Service Act (42 U.S.C. 262(i)), are 

considered a health and medical 

resource and thus would fall within the 

scope of the HRPAS and EMPAS 

regulations, including any materials 

associated with vaccines, including 

glass vials and other packaging.6

Similarly, distribution systems and 

medical facilities for vaccine 

distribution also constitute health and 

medical resources under EMPAS.7

Given the need for consistency across 

agencies to ensure a unified response in 

combating this pandemic and avoid any 

confusion in implementation, FEMA is 

retaining the definition of ‘‘health and 

medical resources’’ from the interim 

final rule and believes the definition 

provides sufficient clarity regarding the 

resources covered by the rule. 

The same commenter pointed out 

that, while FEMA already possesses 

subdelegated authority to use both the 

Department of Commerce’s Defense 

Priority and Allocations System (DPAS) 

and the Department of Agriculture’s 

Agriculture Priority and Allocations 

System (APAS) regulations, having the 

EMPAS regulations should enhance 

predictability. The commenter noted the 

EMPAS regulations were generally 

patterned after other Federal Priority 

and Allocations System (FPAS) 

regulations, with some exceptions. For 

example, the EMPAS regulations 

discuss rated orders placed by FEMA or 

a Delegate Agency to facilitate sales to 

third parties. The commenter noted this 

distinction could refer to contracts 

placed in support of hospitals or other 

health entities or serve as a more general 

reference to the overarching distributorstyle role FEMA and other Federal 

entities have played during the COVID– 

19 pandemic response to date. The 

distinction could also set up a type of 

hybrid rated order/allocation action. 

FEMA may leverage the EMPAS 

regulation to facilitate sales to third 

parties with respect to contracts placed 

in support of entities seeking scarce and 

critical health and medical resources 

and to assist in the distribution of these 

resources as appropriate. The agency 

does not intend to create a hybrid rated 

order/allocation action. 

This commenter urged FEMA to be 

prepared to exercise EMPAS authority 

and delegate authority to assure the 

ability to produce, manufacture, fill, and 

finish coronavirus vaccines, specifically 

requesting the regulation make clear 

that emergency authority includes the 

ability to pre-manufacture vials and 

syringes as necessary to provide a large 

number of vaccine doses. As explained 

above, although vaccines and associated 

materials are within the authority 

delegated by Executive Order 13911, 

HHS is the agency with expertise in 

vaccine development and FEMA does 

not anticipate having a role in that 

process. FEMA believes the regulation 

provides sufficient clarity regarding the 

resource authority delegated by 

Executive Order 13911 and no changes 

are required in this final rule. 

Another commenter offered suggested 

improvements to § 333.13 regarding 

timelines for responses to rated order 

requests. Specifically, the commenter 

recommended changes to § 333.13(d)(2) 

to allow for responses within 6 or 12 

hours ‘‘after confirmation of receipt by 

vendor/contractor personnel during 

normal business hours.’’ FEMA 

appreciates that the proposed change 

would allow vendors and contractors 

more time to handle rated order requests 

consistent with their normal business 

practices, but rated orders are 

designated as such specifically because 

of the need to handle them differently 

than ordinary orders. The language in 

§ 333.13(d)(2) mirrors the existing 

Department of Commerce DPAS 

regulations at 15 CFR 700.13(d)(2). As 

explained in the preamble to the interim 

final rule, FEMA adopted language 

consistent with the DPAS regulation 

because rated orders placed for the 

purpose of emergency preparedness 

would require a shorter timeframe to 

ensure delivery in time to provide 

disaster assistance, emergency response, 

or similar activities. Further, the 

timeframes given in § 333.13(d)(2) are 

the minimum allowed and only apply 

when ‘‘expedited action is necessary or 

appropriate.’’ As such, FEMA does not 

expect 6- or 12-hour response deadlines 

to be used frequently, and therefore 

does not expect the regulatory provision 

to impose a substantial burden on 

vendors and contractors. To ensure 

consistency across FPAS regulations, 

and because of the nature of FEMA’s 

mission, FEMA is retaining the language 

from the interim final rule in the final 

rule. Additionally, the commenter 

suggested the use of the term 

‘‘immediately’’ in § 333.13(d)(3) and 

elsewhere could not be realistically 

defined. The commenter recommended 

alternative language, such as, ‘‘as soon 

as reasonably practicable’’ or ‘‘promptly 

with commercially reasonable efforts.’’ 

Again, the language in EMPAS is 

consistent with the Department of 

Commerce’s DPAS regulations, where 

this provision has been in use since 

2014. Given the exigent circumstances 

under which FEMA must provide 

emergency preparedness, mitigation, 

response, and recovery services, the 

requirement for immediate notification 

is necessary to ensure the ultimate 

timely delivery of these services. In 

addition, FEMA does not believe that 

the alternative terms provide a 

significantly more definite meaning. 

Therefore, FEMA is retaining the 

language from the interim final rule to 

ensure consistency across FPAS 

regulations. 

Two commenters focused their 

comments exclusively on vaccines, a 

topic not directly addressed by EMPAS. 

One commenter requested an ethically 

produced vaccine that is not developed 

from aborted fetal cells. The EMPAS 

regulation does not discuss vaccine 

development. As explained above, 

FEMA’s EMPAS regulation is limited to 

establishing standards and procedures 

for priority and allocation orders for 

‘‘health and medical resources’’ as 

defined in the interim final rule at 

§ 333.8. Although vaccines fall within 

the scope of ‘‘health and medical 

resources’’ authority delegated to HHS 

and to FEMA, FEMA has not played a 

substantial role in the development of 


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the vaccine given HHS’s 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 COVID–19 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 

333.20(c). 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 OMB’s 

action, FEMA now has a permanent 

OMB clearance number. Therefore, 

FEMA is removing from § 333.20(c) the 

placeholder reference, ‘‘1660–NW122’’ 

and adding in its place the permanent 

number, ‘‘1660–0149.’’ 

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. 553(d)(3). The 

interim final rule that this final rule 

makes final, with only technical 

changes, is already in effect. 

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 

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 3(f) 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 rule’s 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 

FEMA’s 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 

required to maintain compliance with 

the rule. 

The impact of EMPAS on private 

companies receiving priority orders is 

expected to vary. FEMA’s 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. 

FEMA’s 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 FEMA’s 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 RFA’s 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. 553(b) or any other law. See 5 

U.S.C. 604(a). 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 RFA’s 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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Federal Register / Vol. 86, No. 5 / Friday, January 8, 2021 / Rules and Regulations 1291 

8Collection 1660–0149’s 30-day comment period 

ended on November 13, 2020. 

E. Paperwork Reduction Act of 1995 

This rule contains information 

collections necessary to support FEMA’s 

implementation of the President’s 

priorities and allocations authority 

under Title I of the Defense Production 

Act of 1950 (DPA), as amended (50 

U.S.C. 4501, et seq.). The purpose of this 

authority is to ensure the timely 

delivery of products, materials, and 

services necessary or appropriate to 

promote the national defense. 

The Requests for Special Priorities 

Assistance collection, 1660–0149, was 

submitted under OMB’s emergency 

clearance procedures. Currently, FEMA 

is seeking public comment on collection 

1660–0149 through the normal 

clearance process (see 85 FR 65066, Oct. 

14, 2020 8). 

The new Rated Orders, Adjustments, 

Exceptions, or Appeals Under the 

Emergency Management Priorities and 

Allocations System (EMPAS) collection, 

1660–0150, cleared OMB’s emergency 

clearance procedures and has an 

expiration date of 4/30/21. Additionally, 

FEMA will seek public comments on 

the collection through the normal 

clearance process. 

F. Privacy Act 

Under the Privacy Act of 1974, 5 

U.S.C. 552a, an agency must determine 

whether implementation of a proposed 

regulation will result in a system of 

records. A ‘‘record’’ is any item, 

collection, or grouping of information 

about an individual that is maintained 

by an agency, including, but not limited 

to, his/her education, financial 

transactions, medical history, and 

criminal or employment history and 

that contains his/her name, or the 

identifying number, symbol, or other 

identifying particular assigned to the 

individual, such as a finger or voice 

print or a photograph. See 5 U.S.C. 

552a(a)(4). A ‘‘system of records’’ is a 

group of records under the control of an 

agency from which information is 

retrieved by the name of the individual 

or by some identifying number, symbol, 

or other identifying particular assigned 

to the individual. An agency cannot 

disclose any record which is contained 

in a system of records except by 

following specific procedures. 

In accordance with DHS policy, 

FEMA has completed two Privacy 

Threshold Analyses (PTAs). DHS has 

determined that this rulemaking does 

not affect the 1660–1660–0149 and the 

1660–0150 OMB Control Numbers’ 

compliance with the E-Government Act 

of 2002 or the Privacy Act of 1974, as 

amended. Specifically, DHS has 

concluded that the 1660–0149 and 

1660–0150 OMB Control Numbers are 

covered by the DHS/ALL/PIA–065 

Electronic Contract Filing System 

(ECFS) Privacy Impact Assessment 

(PIA). Additionally, DHS has decided 

that the 1660–0149 and the 1660–0150 

OMB Control Numbers are covered by 

the DHS/ALL–021 Department of 

Homeland Security Contractors and 

Consultants, 73 FR 63179 (Oct. 23, 

2008) System of Records Notice (SORN). 

G. Executive Order 13175, Consultation 

and Coordination With Indian Tribal 

Governments 

Executive Order 13175, ‘‘Consultation 

and Coordination with Indian Tribal 

Governments,’’ 65 FR 67249, November 

9, 2000, applies to agency regulations 

that have Tribal implications, that is, 

regulations that have substantial direct 

effects on one or more Indian tribes, on 

the relationship between the Federal 

Government and Indian Tribes, or on 

the distribution of power and 

responsibilities between the Federal 

Government and Indian Tribes. Under 

this Executive order, to the extent 

practicable and permitted by law, no 

agency shall promulgate any regulation 

that has Tribal implications, that 

imposes substantial direct compliance 

costs on Indian Tribal governments, and 

that is not required by statute, unless 

funds necessary to pay the direct costs 

incurred by the Indian Tribal 

government or the Tribe in complying 

with the regulation are provided by the 

Federal Government, or the agency 

consults with Tribal officials. 

FEMA has reviewed this final rule 

under Executive Order 13175 and has 

determined that this final rule does not 

have a substantial direct effect on one or 

more Indian tribes, on the relationship 

between the Federal Government and 

Indian Tribes, or on the distribution of 

power and responsibilities between the 

Federal Government and Indian Tribes. 

H. Executive Order 13132, Federalism 

Executive Order 13132, ‘‘Federalism,’’ 

64 FR 43255, August 10, 1999, sets forth 

principles and criteria that agencies 

must adhere to in formulating and 

implementing policies that have 

federalism implications, that is, 

regulations that have ‘‘substantial direct 

effects on the States, on the relationship 

between the National Government and 

the States, or on the distribution of 

power and responsibilities among the 

various levels of government.’’ Federal 

agencies must closely examine the 

statutory authority supporting any 

action that would limit the 

policymaking discretion of the States, 

and to the extent practicable, must 

consult with State and local officials 

before implementing any such action. 

FEMA has determined that this 

rulemaking does not have a substantial 

direct effect on the States, on the 

relationship between the national 

government and the States, or on the 

distribution of power and 

responsibilities among the various 

levels of government, and therefore does 

not have federalism implications as 

defined by the Executive order. 

I. National Environmental Policy Act of 

1969 (NEPA) 

Under the National Environmental 

Policy Act of 1969 (NEPA), as amended, 

42 U.S.C. 4321 et seq., an agency must 

prepare an environmental assessment or 

environmental impact statement for any 

rulemaking that significantly affects the 

quality of the human environment. 

FEMA has determined that this 

rulemaking does not significantly affect 

the quality of the human environment 

and consequently has not prepared an 

environmental assessment or 

environmental impact statement. 

Rulemaking is a major Federal action 

subject to NEPA. Categorical exclusion 

A3 included in the list of exclusion 

categories at Department of Homeland 

Security Instruction Manual 023–01– 

001–01, Revision 01, Implementation of 

the National Environmental Policy Act, 

Appendix A, issued November 6, 2014, 

covers the promulgation of rules, 

issuance of rulings or interpretations, 

and the development and publication of 

policies, orders, directives, notices, 

procedures, manuals, and advisory 

circulars if they meet certain criteria 

provided in A3(a–f). This interim final 

rule meets Categorical Exclusion A3(a), 

‘‘[t]hose of a strictly administrative or 

procedural nature,’’ and A3(b), ‘‘[t]hose 

that implement, without substantive 

change, statutory or regulatory 

requirements.’’ 

J. Congressional Review of Agency 

Rulemaking 

Under the Congressional Review of 

Agency Rulemaking Act (CRA), 5 U.S.C. 

801–808, before a rule can take effect, 

the Federal agency promulgating the 

rule must: Submit to Congress and to 

the Government Accountability Office 

(GAO) a copy of the rule; a concise 

general statement relating to the rule, 

including whether it is a major rule; the 

proposed effective date of the rule; a 

copy of any cost-benefit analysis; 

descriptions of the agency’s actions 

under the Regulatory Flexibility Act and 

the Unfunded Mandates Reform Act; 

and any other information or statements 

required by relevant Executive orders. 


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1 77 FR 51649. 

2A copy of GTR No. 3 was placed in the docket 

for the NPRM associated with the final rule revising 

FMVSS No. 122. See Docket No. NHTSA–2008– 

0150–0002. 

3 73 FR 54020 (Sept. 17, 2008). 

4 49 CFR 571.121, S5.1.6.2. 

5We referenced FMVSS No. 101, notwithstanding 

the fact that it does not apply to motorcycles, 

because it had an existing labeling requirement for 

ABS malfunction in Table 1. 

6 49 CFR 571.122, S5.1.10.2(c). 

7 49 CFR 571.122, S5.1.10.2(c). 

8 49 CFR 571.122a, S5.1.3.1(d). 

FEMA has submitted this final rule to 

the Congress and to GAO pursuant to 

the CRA. The Office of Management and 

Budget has determined that this rule is 

a ‘‘major rule’’ within the meaning of 

the CRA. As this rule contains FEMA’s 

finding for good cause that notice and 

public procedure are impracticable, 

unnecessary, or contrary to the public 

interest, there is not a required delay in 

the effective date. See 5 U.S.C. 808(2). 

List of Subjects in 44 CFR Part 333 

Administrative practice and 

procedure, Business and industry, 

Government contracts, National defense, 

Reporting and recordkeeping 

requirements, Strategic and critical 

materials. 

For the reasons stated in the 

preamble, the interim rule adding 44 

CFR part 333, which was published at 

85 FR 28500 on May 13, 2020, is 

adopted as final with the following 

changes: 

PART 333—EMERGENCY 

MANAGEMENT PRIORITIES AND 

ALLOCATIONS SYSTEM 

■ 1. The authority citation for part 333 

is revised to read as follows: 

Authority: 6 U.S.C. 313, 314; 50 U.S.C. 

4511, et seq.; E.O. 13603, 77 FR 16651; E.O. 

13909, 85 FR 16227; E.O. 13911, 85 FR 

18403; DHS Delegation 09052, Rev. 00 (Jan. 

3, 2017); DHS Delegation 09052 Rev 00.1 

(Apr. 1, 2020). 

§ 333.20 [Amended] 

■ 2. In § 333.20, amend paragraph (c) by 

removing ‘‘1660–NW122’’ and adding in 

its place ‘‘1660–0149.’’ 

Pete Gaynor, 

Administrator, Federal Emergency 

Management Agency. 

[FR Doc. 2020–29287 Filed 1–7–21; 8:45 am] 

BILLING CODE 9111–19–P 

DEPARTMENT OF TRANSPORTATION 

National Highway Traffic Safety 

Administration 

49 CFR Part 571 

[Docket No. NHTSA–2020–0110] 

RIN 2127–AL48 

Federal Motor Vehicle Safety 

Standards; Motorcycle Brake Systems; 

Motorcycle Controls and Displays 

AGENCY: National Highway Traffic 

Safety Administration (NHTSA), 

Department of Transportation. 

ACTION: Final rule; technical corrections. 

SUMMARY: This document amends 

Federal Motor Vehicle Safety Standards 

(FMVSS) Nos. 122 and 123 to allow the 

use of an internationally recognized 

symbol. It also relocates the telltale 

specifications for anti-lock braking 

system (ABS) malfunction from FMVSS 

No. 101 to the appropriate table in 

FMVSS No. 123 since the latter applies 

to motorcycles. In addition, this final 

rule makes two technical corrections: It 

corrects motorcycle category references 

in S6.3.2 of FMVSS No. 122 and an 

outdated table reference found in 

FMVSS No. 135. 

DATES: This final rule is effective on 

January 8, 2021. 

Petitions for reconsideration: Petitions 

for reconsideration of this final rule 

must be received by February 22, 2021. 

ADDRESSES: Petitions for reconsideration 

of this final rule must refer to the docket 

number set forth above and be 

submitted to the Administrator, 

National Highway Traffic Safety 

Administration, 1200 New Jersey 

Avenue SE, Washington, DC 20590. 

FOR FURTHER INFORMATION CONTACT: 

Michael Pyne, Office of Crash 

Avoidance Standards, by telephone at 

202–366–4171 or Callie Roach, Office of 

the Chief Counsel, by telephone at 202– 

366–2992. You may send mail to both 

officials at the National Highway Traffic 

Safety Administration, 1200 New Jersey 

Avenue SE, Washington, DC 20590. 

SUPPLEMENTARY INFORMATION: 

I. Summary of the November 2014 

Notice of Proposed Rulemaking 

On August 24, 2012, the agency 

published a final rule amending Federal 

Motor Vehicle Safety Standard (FMVSS) 

No. 122, Motorcycle brake systems.1 The 

final rule updated provisions of FMVSS 

No. 122 to reflect the performance of 

modern motorcycle brake systems. The 

final rule adopted requirements and test 

procedures derived from Global 

Technical Regulation (GTR) No. 3 for 

motorcycle brakes. Adopted in 2006, 

GTR No. 3 combined the best practices 

from requirements and test procedures 

available internationally, drawn 

primarily from FMVSS No. 122, United 

Nations Economic Commission for 

Europe (UNECE) Regulation No. 78, and 

Japanese Safety Standard JSS12–61.2

The revised FMVSS No. 122 adopted 

performance requirements for antilock 

brake system (ABS) performance. 

Although FMVSS No. 122 as amended 

in 2012 does not require motorcycles to 

be equipped with ABS, it includes 

performance requirements for 

motorcycles that are equipped with 

ABS. These requirements apply to 

motorcycles manufactured on or after 

September 1, 2014. 

Both the GTR and the 2008 notice of 

proposed rulemaking (NPRM) for 

FMVSS No. 122 3 specified that all 

motorcycles equipped with ABS must 

also be fitted with a yellow warning 

lamp that illuminates whenever there is 

a malfunction that affects the generation 

or transmission of signals in the 

motorcycle’s ABS system. The prior 

version of FMVSS No. 122 did not 

include any requirements for an ABS 

malfunction telltale. 

The final rule, consistent with other 

FMVSS addressing ABS system failure,4

and with FMVSS No. 101, Controls and 

displays,5 required that motorcycle ABS 

system failure be indicated to the 

operator with a telltale identified by the 

words ‘‘Antilock’’ or ‘‘Anti-lock’’ or 

‘‘ABS.’’ 6 The final rule also added a 

specification that the telltale be labeled 

in letters at least 3/32 inch (2.4 mm) 

high.7 This minimum letter height 

specification is consistent with the 

existing requirement for a brake failure 

telltale identifier for motorcycles.8

Several months after the agency 

published the final rule in August 2012, 

the American Honda Motor Company 

(Honda), manufacturer of Honda 

motorcycles, contacted the agency to 

inform NHTSA that the ABS-equipped 

motorcycles it and other manufacturers 

produce already are equipped with ABS 

malfunction warning lamps and told the 

agency that the current practice is to use 

the International Organization for 

Standardization (ISO) symbol for ABS 


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