Federal Register / Vol. 86, No. 5 / Friday, January 8, 2021 / Rules and Regulations 1281 

existing requirements under the law or 

agency policies. When a guidance 

document is binding because the law 

authorizes binding guidance or because 

a contract incorporates the guidance, the 

Council on Environmental Quality must 

modify the disclaimer to reflect 

accordingly; 

(7) If it is a revision to or a 

replacement of a previously issued 

guidance document, identify the 

guidance document that it revises or 

replaces; 

(8) Include a short summary of the 

subject matter covered in the guidance 

document at the top of the document; 

(9) Identify the activities to which and 

the persons to whom the guidance 

document applies; 

(10) Include the citation to the 

statutory provision or regulation to 

which the guidance document applies 

or which it interprets; and 

(11) Be posted on the Council on 

Environmental Quality’s website. 

(d) Review and clearance. The Office 

of the General Counsel must review and 

clear all proposed guidance documents 

before issuance. 

§ 1519.3 Procedures for the public to 

request withdrawal or modification of a 

guidance document. 

(a) Any member of the public may 

petition the Council on Environmental 

Quality to withdraw or modify a 

guidance document. 

(b) The petitioner must submit the 

request for the withdrawal or 

modification of a guidance document in 

writing to the Office of the General 

Counsel. The petition must contain a 

statement of the reasons for the petition 

and any supporting documents to 

support the petitioner’s request. 

(c) Upon receipt of a petition for 

withdrawal or modification of a 

guidance document, the Office of the 

General Counsel will consult with the 

relevant offices and coordinate the 

response to the petition. 

(d) The Council on Environmental 

Quality should respond to a petition in 

writing, including electronically, within 

90 days of receipt of a petition. The 

response should state whether the 

petition is granted, granted in part and 

denied in part, denied, or provisionally 

denied for lack of adequate information. 

If the petition is provisionally denied 

for lack of adequate information, the 

response should indicate what 

additional information is necessary to 

adjudicate the petition. The Office of the 

General Counsel should respond to the 

petition in writing no later than 90 days 

after receipt of the necessary additional 

information. The response should state 

whether the petition is granted, granted 

in part and denied in part, or denied. 

(e) The Council on Environmental 

Quality may consider in a coordinated 

manner or provide a coordinated 

response to similar petitions for 

withdrawal or modification. 

(f) The Council on Environmental 

Quality need not respond to petitions 

under this part for withdrawal or 

modification of documents that do not 

meet the definition of a guidance 

document. 

§ 1519.4 Significant guidance documents. 

(a) Significant guidance documents 

definition. For the purposes of this 

section, significant guidance documents 

are guidance documents that may be 

reasonably anticipated to: 

(1) Lead to an annual effect on the 

economy of $100 million or more, or 

adversely affect in a material way the 

economy, a sector of the economy, 

productivity, competition, jobs, the 

environment, public health or safety, or 

State, local, or Tribal governments or 

communities; 

(2) Create a serious inconsistency or 

otherwise interfere with an action taken 

or planned by another agency; 

(3) Materially alter the budgetary 

impact of entitlements, grants, user fees, 

or loan programs or the rights and 

obligations of recipients thereof; or 

(4) Raise novel legal or policy issues 

arising out of legal mandates, the 

President’s priorities, or the principles 

of Executive Order 12866. 

(b) Actions the Council on 

Environmental Quality will take before 

issuing significant guidance documents. 

When the Office of Management and 

Budget’s Office of Information and 

Regulatory Affairs determines that a 

guidance document is a significant 

guidance document, the Council on 

Environmental Quality must: 

(1) Submit the guidance document for 

review by the Office of Information and 

Regulatory Affairs under Executive 

Order 12866; 

(2) Publish the draft significant 

guidance document in the Federal 

Register for a public notice and 

comment period of at least 30 days; 

(i) This provision will not apply if the 

Council on Environmental Quality for 

good cause finds that notice and public 

comment is impracticable, unnecessary, 

or contrary to the public interest. 

(ii) If such a finding is made, the 

Council on Environmental Quality must 

incorporate such a finding and a brief 

statement of its reasoning into the 

significant guidance document. 

(3) Obtain approval on a nondelegable basis from the Chairman or an 

official who is serving in an acting 

capacity as the Chairman. 

(4) Provide a public response to major 

concerns raised in comments on the 

draft significant guidance document. 

(5) Announce the availability of the 

final significant guidance document. 

(6) Comply with the applicable 

requirements for regulations or rules, 

including significant regulatory actions, 

set forth in Executive Orders 12866, 

‘‘Regulatory Planning and Review,’’ 

13563, ‘‘Improving Regulation and 

Regulatory Review,’’ 13609, ‘‘Promoting 

International Regulatory Cooperation,’’ 

13771, ‘‘Reducing Regulation and 

Controlling Regulatory Costs,’’ and 

13777, ‘‘Enforcing the Regulatory 

Reform Agenda.’’ 

(c) Exemption. This section will not 

apply if the Chairman or an official who 

is serving in an acting capacity as the 

Chairman of the Council on 

Environmental Quality and the 

Administrator of the Office of 

Information and Regulatory Affairs 

agree that exigency, safety, health, or 

other compelling cause warrants an 

exemption from some or all 

requirements. 

[FR Doc. 2020–28881 Filed 1–7–21; 8:45 am] 

BILLING CODE 3225–F1–P 

FEDERAL PERMITTING 

IMPROVEMENT STEERING COUNCIL 

40 CFR Chapter IX 

[Agency Docket Number 2020–001] 

RIN 3121–AA01 

Adding Mining as a Sector of Projects 

Eligible for Coverage Under Title 41 of 

the Fixing America’s Surface 

Transportation Act 

AGENCY: Federal Permitting 

Improvement Steering Council. 

ACTION: Final rule. 

SUMMARY: The Federal Permitting 

Improvement Steering Council 

(Permitting Council) has voted to add 

mining as a sector with infrastructure 

projects eligible for coverage under Title 

41 of the Fixing America’s Surface 

Transportation Act (FAST–41). A new 

part will be included in the Code of 

Federal Regulations that adds mining to 

the list of statutory FAST–41 sectors. 

The addition of mining as a FAST–41 

sector will allow qualified mining 

infrastructure projects to become FAST– 

41 covered projects. FAST–41 coverage 

will help Federal agencies coordinate 

their environmental and project review 

efforts to improve the timeliness, 

efficiency, predictability, and 

transparency of the decision-making 

processes associated with covered 


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1282 Federal Register / Vol. 86, No. 5 / Friday, January 8, 2021 / Rules and Regulations 

1See 42 U.S.C. 4370m–1(b) (Prescribing 

Permitting Council composition). 

mining projects. The designation of 

mining as a FAST–41 sector does not 

predetermine or affect any Federal 

agency decision with respect to any 

mining authorization or permit 

application, nor does it sidestep any 

required environmental review or 

public consultation process. 

DATES: This rule becomes effective on 

January 8, 2021. 

FOR FURTHER INFORMATION CONTACT: John 

G. Cossa, General Counsel, Federal 

Permitting Improvement Steering 

Council, 1800 G St. NW, Suite 2400, 

Washington, DC 20006, john.cossa@

fpisc.gov, or by telephone at 202–255– 

6936. 

Persons who use a 

telecommunications device for the deaf 

may call the Federal Information Relay 

Service (FIRS) at 1–800–877–8339 to 

contact this individual during normal 

business hours or to leave a message at 

other times. FIRS is available 24 hours 

a day, 7 days a week. You will receive 

a reply to a message during normal 

business hours. 

SUPPLEMENTARY INFORMATION: On 

November 27, 2020, the Permitting 

Council, which comprises the 

Permitting Council Executive Director; 

13 Federal agency council members 

(including the designees of the 

Secretaries of Agriculture, Army, 

Commerce, Interior, Energy, 

Transportation, Defense, Homeland 

Security, and Housing and Urban 

Development, the Administrator of the 

Environmental Protection Agency, and 

the Chairmen of the Federal Energy 

Regulatory Commission, Nuclear 

Regulatory Commission, and the 

Advisory Council on Historic 

Preservation); and additional Permitting 

Council members, the Chairman of the 

Council on Environmental Quality 

(CEQ) and the Director of the Office of 

Management and Budget (OMB); 1

published in the Federal Register a 

proposed rule to designate mining as a 

sector of infrastructure projects eligible 

for coverage under FAST–41, 42 U.S.C. 

4370m et seq. 85 FR 75998. The 

comment period for the proposed rule 

closed on December 28, 2020. The 

Permitting Council received 6,487 

comments, the majority of which were 

form letters opposed to the proposal. 

Responses to selected comments are 

contained in the Responses to Selected 

Comments section below. The 

Permitting Council did not alter the 

regulatory proposal in response to 

comments. 

The Permitting Council reviewed the 

comments received, and on January 4, 

2021, voted whether to designate 

mining, as defined in the proposed rule, 

as a FAST–41 sector. A majority of the 

Permitting Council, including the 

Executive Director, Permitting Council 

members representing the Nuclear 

Regulatory Commission, Advisory 

Council on Historic Preservation, 

Department of Commerce, Department 

of Energy, Environmental Protection 

Agency, Army Corps of Engineers, 

Department of the Interior, Department 

of Agriculture, Department of 

Transportation, Department of Defense, 

and Department of Homeland Security, 

and the Chairman of CEQ voted in favor 

of the proposal. The Permitting Council 

member representing the Department of 

Housing and Urban Development and 

the Director of OMB abstained from the 

vote. The Permitting Council member 

representing the Federal Energy 

Regulatory Commission did not vote. No 

Permitting Council member voted 

against the proposal. 

The Permitting Council continues to 

believe that, like the other FAST–41 

sectors, mining is an important 

infrastructure sector. Mining projects 

can involve the construction of 

significant infrastructure, require 

substantial investment, and necessitate 

extensive and complex Federal and state 

environmental reviews and 

authorizations. Accordingly, like 

qualified projects from the statutory 

FAST–41 sectors, mining projects that 

satisfy the other covered project criteria 

of 42 U.S.C. 4370m(6) could benefit 

from the enhanced interagency 

coordination, transparency, and 

predictability provided by FAST–41 

coverage. Extending FAST–41 coverage 

to qualified mining projects is 

consistent with Executive Order (E.O.) 

13807, Establishing Discipline and 

Accountability in the Environmental 

Review and Permitting Process for 

Infrastructure Projects, 82 FR 40463 

(Aug. 14, 2017) and E.O. 13817, A 

Federal Strategy to Ensure Secure and 

Reliable Supplies of Critical Minerals, 

82 FR 60835 (Dec. 20, 2017). 

Because a majority of the Permitting 

Council voted in favor of designating 

mining as a FAST–41 sector pursuant to 

42 U.S.C. 4370m(6)(A), the Permitting 

Council will add part 1900 to title 40 of 

the Code of Federal Regulations to 

designate mining as a FAST–41 sector. 

Responses to Selected Comments 

The Permitting Council received 

6,487 comments, the majority of which 

were variants of two form letters 

opposed to adding mining as a FAST– 

41 sector. Although none of the 

comments resulted in changes to the 

proposed rule, the Permitting Council 

provides the following comment 

responses to clarify apparent 

misperceptions in the comment record 

about the scope and effect of FAST–41 

and FAST–41 coverage. 

Denial of Request for Extension of Time 

To Comment 

On December 9, 2020, the Permitting 

Council received a letter undersigned by 

several non-governmental entities 

requesting that the Permitting Council 

extend by an additional 45 days the 30- 

day comment period for the proposed 

rule. The letter asserted that the 

extension was needed because the 

ongoing COVID–19 crisis and the 

holiday season limited the ability of 

potentially affected stakeholders to 

provide timely comment, particularly 

given the various and disparate 

environmental and economic effects of 

mining. The Permitting Council denied 

the extension request, explaining that 30 

days was sufficient time to provide 

comment on the proposal, which is 

administrative in nature and does not 

make any mining project more or less 

likely to be approved or implemented, 

or any environmental or economic effect 

that may be associated with a mining 

project to occur. 

Authority To Designate Mining as a 

FAST–41 Sector 

Numerous commenters incorrectly 

argue that the scope of the FAST Act is 

limited to transportation, and that 

therefore, the Permitting Council is 

prohibited from designating mining— 

which is not transportation—as a 

FAST–41 sector. While much of the 

FAST Act does deal with transportation 

issues, 6 of the 10 statutory FAST–41 

sectors—renewable energy production, 

conventional energy production, 

electricity transmission, water resource 

projects, broadband, and 

manufacturing—are not transportation. 

42 U.S.C. 4370m(6)(A). Nothing in 

FAST–41 suggests that the Permitting 

Council is prohibited from designating 

new sectors that are not transportation. 

Some commenters make the 

unsubstantiated assertion that Congress 

intentionally did not include mining as 

a FAST–41 sector because the 

environmental effects of mining 

allegedly are more severe than the 

effects of the other FAST–41 sectors. 

The FAST–41 statute contains no 

evidence of such Congressional intent. 

The statute places no limitation on the 

Permitting Council’s authority to add a 

FAST–41 sector based on that sector’s 

perceived environmental impacts. On 

the contrary, the only limitation 


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2 GAO, Hardrock Mining: BLM and Forest Service 

Have Taken Some Actions to Expedite the Mine 

Plan Review Process but Could Do More, GAO–16– 

165 (Jan. 2016). 

3 Id. at 13, 17 (‘‘we identified six categories of 

federal permits and authorizations that mine 

operators may need to obtain from entities other 

than BLM and the Forest Service and seven 

categories of state and local permits and 

authorizations across 12 western states that may be 

required depending on the nature of the mining 

operations’’). 

Congress placed on the Permitting 

Council’s authority to designate a 

FAST–41 sector is that the designation 

occur ‘‘by majority vote.’’ 42 U.S.C. 

4370m(6)(A). Moreover, because 

compliance with the National 

Environmental Policy Act (NEPA) is a 

precondition of FAST–41 project 

coverage, the fact that a sector has 

projects with potentially significant 

environmental impacts militates in 

favor of adding it as a FAST–41 sector. 

42 U.S.C. 4370m(6)(A)(i) & (ii). 

Suitability of Mining Projects for FAST– 

41 Coverage 

Several commenters argue that 

designating mining as a FAST–41 sector 

is inappropriate because mining projects 

are too complex and diverse for the 

FAST–41 process and the Permitting 

Council to manage. One commenter 

suggested that the Permitting Council 

lacks adequate resources, funding, and 

technical expertise to conduct 

environmental reviews and oversee the 

permitting process for any covered 

mining projects, despite the fact that the 

Permitting Council consists of all the 

Federal agencies currently responsible 

for the environmental review and 

authorization of mining projects and 

collectively possesses all the technical 

and environmental expertise that the 

U.S. government has to bear. 

Mining is an appropriate FAST–41 

sector precisely because mining projects 

can be complex and diverse, and can 

necessitate extensive and coordinated 

Federal and state environmental review 

and decision making. The more 

complex the permitting path, the more 

likely it is that a project will be able to 

benefit from the enhanced interagency 

coordination, transparency, and 

predictability FAST–41 coverage 

provides. The Permitting Council’s 

current project portfolio includes some 

of the largest, most complex, and novel 

infrastructure projects in the U.S., 

including multibillion-dollar renewable 

energy projects (wind and solar) as well 

as pipeline projects that are hundreds of 

miles long, cross Federal, state, private, 

and Tribal lands, and require dozens of 

permits and authorizations from 

numerous Federal and state entities. 

Covered projects also include several 

unprecedented, multibillion-dollar 

offshore wind projects, which require 

close interagency coordination as they 

are shepherded through the project 

review and approval process. Two of the 

FAST–41 covered projects that 

completed the Federal review process in 

2020 are the largest of their kind (a solar 

renewable energy project and a liquefied 

natural gas and pipeline project). 

Most large-scale infrastructure 

projects that would be eligible for 

FAST–41 coverage present 

environmental, jurisdictional, 

procedural, and interagency permitting 

challenges that the Permitting Council 

works daily to resolve. Through its vote 

to add mining as a FAST–41 sector, the 

Permitting Council has signaled its 

willingness to assist covered mining 

project sponsors in resolving their 

complex project review process 

challenges. 

The same commenters who argue that 

mining projects are too complex and 

diverse for FAST–41 coverage 

inconsistently argue that FAST–41 

coverage for mining projects is 

unnecessary because mining permitting 

in the U.S. is relatively swift, 

purportedly averaging two years. But 

the fact that some mining projects may 

be approved within a relatively short 

timeframe has no bearing on whether 

any given mining project may benefit 

from the enhanced interagency 

coordination, predictability, efficiency, 

and transparency that FAST–41 

coverage can provide. Additionally, the 

two-year average permitting timeframe 

cited by commenters originates in a U.S. 

Government Accountability Office 

(GAO) report that only considered the 

time needed to obtain mining 

authorizations from Federal land 

management agencies, and not the 

estimated time needed to obtain myriad 

other Federal authorizations and 

permits that likely would be included in 

any FAST–41 covered project 

permitting timetable.2 The GAO report 

acknowledges that it sometimes can take 

‘‘over 11 years’’ to obtain authorizations 

from Federal land management 

agencies, not counting these other 

required authorizations.3 Several 

commenters referenced the example of 

the Kensington Mine in Alaska, which 

reportedly took 19 years to authorize 

and required over 90 Federal and State 

authorizations. 

FAST–41 Does Not Supplant NEPA or 

Existing Procedural Requirements 

Many of the comments evidence a 

widespread belief that FAST–41 

provides an alternate ‘‘expedited’’ 

project review and permitting regime 

that supplants NEPA and potentially 

other permitting and procedural 

requirements. This is not the case. The 

FAST–41 statute expressly does not 

supersede NEPA or affect any other 

agency statutory or regulatory 

requirement. See 42 U.S.C. 4370m– 

6(d)(1) (FAST–41 does not supersede, 

amend, or modify any Federal statute or 

affect the responsibility of any Federal 

agency officer to comply with or enforce 

any statute); 42 U.S.C. 4370m–6(d)(2) 

(‘‘Nothing in [FAST–41] . . . creates a 

presumption that a covered project will 

be approved or favorably reviewed by 

any agency’’); 42 U.S.C. 4370m–6(e)(1) 

(‘‘Nothing in this section preempts, 

limits, or interferes with . . . any 

practice of seeking, considering, or 

responding to public comment’’); 42 

U.S.C. 4370m–6(e)(2) (‘‘Nothing in 

[FAST–41] preempts, limits, or 

interferes with . . . any power, 

jurisdiction, responsibility, or authority 

that a Federal, State, or local 

governmental agency, metropolitan 

planning organization, Indian tribe, or 

project sponsor has with respect to 

carrying out a project or any other 

provisions of law applicable to any 

project, plan, or program.’’); 42 U.S.C. 

4370m–11 (providing that FAST–41 

does not amend NEPA). 

Although FAST–41 may provide more 

timely Federal decision making with 

respect to a covered project, it does not 

alter the ‘‘rigor’’ of any Federal agency’s 

decision making, as some commenters 

suggest. Longer permitting timeframes 

should not be confused with rigorous 

Federal agency decision making. Much 

of the time savings associated with 

FAST–41 coverage has been achieved 

through coordinating interagency 

efforts, eliminating needless 

duplication, and engaging agencies and 

project sponsors to foster improved 

communication, and not through 

subverting applicable project review or 

decision-making procedures. 

FAST–41 Flexibility Mechanisms 

Commenters appear to incorrectly 

presume that FAST–41 coverage would 

subject mining projects to an arbitrarily 

inflexible, ‘‘expedited’’ environmental 

review and authorization process that 

would prevent Federal decision makers 

from obtaining and reviewing necessary 

technical and environmental 

information, providing opportunities for 

essential public input, coordinating 

with relevant state, local, and Tribal 

governments, and adjusting the FAST– 

41 project permitting timetable (42 

U.S.C. 4370m–2(c)(1)(A), (c)(1)(b)(ii) & 

(c)(2)) to accommodate adequate NEPA 

review. But FAST–41 contains precisely 

the flexibility mechanisms that 


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1284 Federal Register / Vol. 86, No. 5 / Friday, January 8, 2021 / Rules and Regulations 

4The default comment period for environmental 

impact statements is 45–60 days and 45 days for all 

other NEPA documents. 42 U.S.C. 4370m–4(b)(1)(D) 

& (d). 

5Available at https://

www.permits.performance.gov/. 

commenters claim it lacks. For example, 

one comment letter asserts that the 

recommended performance schedule 

(RPS) established for a new sector 

pursuant to 42 U.S.C. 4370m–1(c)(1)(C) 

limits the flexibility of agencies to craft 

a permitting timetable that reflects the 

complexity of the specific project or the 

impacts of the project on unique 

environmental or cultural resources. But 

FAST–41 specifically provides that 

agencies may modify the RPS based on 

‘‘relevant factors,’’ including factors 

such as those identified by the 

commenter (i.e., to accommodate ‘‘the 

size and complexity of the covered 

project’’ and ‘‘the sensitivity of the 

natural or historic resources affected by 

the project’’). 42 U.S.C. 4370m– 

2(c)(2)(B)(i) & (iv). Indeed, despite the 

commenter’s concern about the RPS 

provision, the Permitting Council has 

successfully created a unique permitting 

timetable for each FAST–41 covered 

project. 

Similarly, commenters’ concern that 

agencies are unable to adjust FAST–41 

project permitting timetables as needed 

to accommodate changed circumstances 

or new information is unfounded. 

Pursuant to 42 U.S.C. 4370m– 

2(c)(2)(D)(i)(I) and (II), agencies may 

adjust permitting timetable milestones 

where interagency agreement can be 

reached about the need for the extension 

and a written explanation is provided 

for the record. And if an extension of a 

milestone would extend a final 

permitting completion date by more 

than 30 days, the Permitting Council 

Executive Director may extend the final 

permitting timetable date after 

consulting with relevant agencies and 

determining on the record that that an 

extension is warranted based on the 

same ‘‘relevant factors’’ that can be used 

for deviating from the RPS. 42 U.S.C. 

4370m–2(c)(2)(D)(i)(III). In short, 

nothing in FAST–41 prevents agencies 

from modifying permitting timetables 

for the reasons commenters are 

concerned about. 

Commenters’ concerns regarding the 

FAST–41 provision that requires OMB 

approval and a report to Congress if a 

permitting timetable exceeds by 50 

percent the originally established 

permitting timetable (150 percent date) 

are equally misplaced. 42 U.S.C. 

4370m–2(c)(2)(D)(iii). Like the 

milestone extension requirements, the 

150 percent date requirement is a 

transparency and accountability 

mechanism which, like many of FAST– 

41’s substantive provisions, encourages 

thoughtful, coordinated, and deliberate 

agency planning and action. Nothing 

prevents OMB from granting permitting 

timetable extensions beyond 50 percent 

of the original timetable to 

accommodate any information gap, 

needed stakeholder consultation, or 

environmental concern. The Permitting 

Council agrees with commenters that 

project sponsor delay can be a 

significant source of permitting timeline 

delay. That is why the 150 percent date 

requirement does not count against an 

agency when the permitting timetable 

extension request is for reasons outside 

the government’s control. 42 U.S.C. 

4370m–2(c)(2)(D)(iii)(I). 

Likewise, and contrary to the 

assertions of some commenters, FAST– 

41 does not limit the rights of the public 

to provide input into the project review 

process, nor does it affect the discretion 

of agencies to establish or extend 

comment periods to obtain essential 

environmental information. Although 

FAST–41 establishes default comment 

periods for various environmental 

documents,4 agencies retain discretion 

to extend any comment period ‘‘for good 

cause.’’ This allows agencies to extend 

comment periods to provide affected 

parties sufficient opportunity for timely 

input, or to obtain any environmental 

information essential for project review. 

This requirement is analogous to other 

Federal programs intended to foster 

timely and deliberate agency decision 

making. See, e.g., 23 U.S.C. 139(g)(2) 

(minimum comment periods for NEPA 

documents that are subject to 

Department of Transportation efficient 

environmental review provisions may 

be extended when agencies agree or ‘‘for 

good cause’’); 23 CFR 771.123(k) 

(default comment period for 

environmental assessments and 

environmental impact statements that 

are subject to Department of 

Transportation efficient environmental 

review provisions is 45–60 days). 

Finally, the FAST 41 provisions that 

require early development of NEPA 

alternatives and specify that agencies 

may develop preferred alternatives to a 

higher level of detail than other 

alternatives do not constrain agency 

discretion to subsequently develop 

additional NEPA alternatives when 

needed, and are entirely consistent with 

controlling CEQ NEPA implementing 

regulations. 42 U.S.C. 4370m–4(c); see 

40 CFR 1501.2, 1502.14, 1502.17. 

Federal and State Coordination 

One commenter expressed concern 

that the application of FAST–41 may 

interfere with cooperation between state 

and Federal officials with respect to 

review and authorization of covered 

projects. However, FAST–41 encourages 

Federal-state cooperation by providing 

states the opportunity to ‘‘opt-in’’ to the 

FAST–41 process (42 U.S.C. 4370m– 

2(c)(3)), and additionally requires 

Federal agencies to consult with states 

before taking certain actions, such as 

establishing a covered project 

permitting timetable. 43 U.S.C. 4370m– 

2(c)(2)(A), see also 42 U.S.C. 4370m–3 

(interstate compacts); 42 U.S.C. 4370m– 

5 (delegated state permitting programs). 

FAST–41 Limitations Period 

Several commenters expressed 

concern that the two-year FAST–41 

limitations period contained in 42 

U.S.C. 4370m–6(a)(1)(A) may prevent 

access to the courts by parties affected 

by mining pollution or violations by 

mine operators of permit conditions or 

applicable regulations. Although the 

FAST–41 limitations period is shorter 

than the six-year limitations period for 

claims against the government brought 

under the Administrative Procedure Act 

(APA), 5 U.S.C. 551 et seq., the two-year 

limitations period applies exclusively to 

Federal authorizations of FAST–41 

covered projects. The limitations period 

does not apply to lawsuits alleging 

noncompliance with applicable 

regulations or permit conditions, or to 

tort claims. Moreover, because all 

FAST–41 covered project Federal 

authorizations are publically posted on 

the Permitting Dashboard,5 FAST–41 

ensures that anyone wishing to 

challenge the validity of a Federal 

agency authorization with respect to a 

covered project will have adequate 

opportunity to do so. 

Consultation With Indian Tribal 

Governments; Environmental Justice 

Several commenters assert that the 

Permitting Council is required to engage 

in government-to-government 

consultation with Indian Tribal 

Governments pursuant to section 5 of 

E.O. 13175 because Tribes are affected 

by mining projects. Several commenters 

similarly argue that the Permitting 

Council is required to identify and 

address the disproportionate effects that 

mining can have on minority and lowincome populations pursuant to E.O. 

12898. 

Designating mining as a FAST–41 

sector is a ministerial act that has no 

effect on Tribes and does not 

disproportionately affect minority or 

low-income populations. As explained 

in the preamble to the proposed rule, 

only prospective covered project 


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Federal Register / Vol. 86, No. 5 / Friday, January 8, 2021 / Rules and Regulations 1285 

sponsors and Federal agencies are 

affected by the rule. Designating mining 

as a FAST–41 sector does not extend 

FAST–41 coverage to any project, affect 

any agency’s discretion to issue or deny 

a mining project permit or 

authorization, or displace any existing 

requirement for public involvement or 

environmental review associated with 

any covered project. It remains the 

responsibility of each authorizing 

agency to weigh the relative 

environmental and economic merits of 

their decisions with respect to a covered 

project in accordance with their own 

statutory and regulatory authorities and 

policies. Designating mining as a FAST– 

41 sector likewise does not affect any 

Federal agency’s obligation to engage in 

government-to-government consultation 

with respect to any mining project. 

Because adding mining as a FAST–41 

sector does not affect Tribes or minority 

and low-income populations, the 

Permitting Council is not required to 

engage in government-to-government 

consultation pursuant to E.O. 13175 or 

to identify and address any 

disproportionate effect that mining may 

have on minority and low-income 

populations. 

Proposed Definition of ‘‘Mine’’ 

Two commenters recommended that 

the Permitting Council consider 

adopting the definition of ‘‘mine’’ from 

40 CFR 440.132(g), which includes land 

and property under or above the surface 

of an active mining area that is used in, 

or results from, the work of extracting 

metal ore or minerals from their natural 

deposits. The commenters’ referenced 

definition also includes such lands that 

are used for secondary recovery of metal 

ore from refuse or other storage piles, 

wastes, or rock dumps, and mill tailings 

derived from the mining, cleaning, or 

concentration of metal ores. 

The Permitting Council appreciates 

the suggestion, but for the purpose of 

adding a FAST–41 sector pursuant to 42 

U.S.C. 4370m(6)(A), the Permitting 

Council seeks to define ‘‘mining,’’ rather 

than ‘‘mine.’’ The Permitting Council 

did not change the definition of 

‘‘mining’’ in response to the comment, 

and believes that the definition in the 

proposed rule is sufficiently broad to 

capture the range of mining activities 

intended (i.e., extracting ore, minerals, 

or raw materials from the ground). 

Economic Analysis 

Adding mining as a sector with 

infrastructure projects eligible for 

coverage under FAST–41could result in 

improved timeliness, predictability, and 

transparency associated with the 

projects that ultimately become FAST– 

41 covered projects, and for the Federal 

agencies participating in the FAST–41 

process for those covered projects. 

However, quantifying any potential 

economic benefits that might result from 

adding mining as a FAST–41 sector is 

speculative. Simply providing the 

option of FAST–41 coverage to qualified 

mining projects does not assure how 

many, if any, mining project FAST–41 

Initiation Notices (FINs) will be 

submitted to the Permitting Council for 

coverage, or how many projects 

ultimately will be covered. See 42 

U.S.C. 4370m–2(a)(1)(A) & (C). Nor does 

it guarantee that any economic benefits 

would result from such coverage, 

particularly given that the permitting 

and environmental review requirements 

and permitting timetables for each 

covered project are unique. 

Although the Permitting Council 

cannot predict precisely how many 

mining projects may become covered 

projects, the number will be small. The 

eligibility criteria for FAST–41 coverage 

are selective; only the largest projects 

that are the most prepared for Federal 

review may become covered projects. 

See 42 U.S.C. 4370m(6) (definition of 

‘‘covered project’’ including $200 

million project value threshold or 

alternative permitting complexity 

requirement); 4370m–2(c)(1)(A) & 

(B)(ii), 4370m–2(c)(2)(A) (sponsors must 

provide agencies with information 

sufficient to create a comprehensive and 

complete project permitting timetable 

within 60 days of initial project 

coverage); OMB M–17–14, Guidance to 

Federal Agencies Regarding the 

Environmental Review and 

Authorization Process for Infrastructure 

Projects (FAST–41 Guidance), Sec. 3 

(Jan. 17, 2017) (project description must 

be sufficient at the outset to facilitate 

appropriate level of analysis under 

NEPA and interagency coordination on 

all required permits/authorizations). 

Since the enactment of FAST–41 in 

2015, a total of 54 projects have been 

covered. Of these projects, only 20 were 

covered as the result of successfully 

submitted FINs that met the FAST–41 

coverage criteria. The remaining 34 

projects were statutorily covered as 

pending projects immediately after the 

enactment of FAST–41. See 43 U.S.C. 

4370m–1(c)(1)(A)(i) and 4370m– 

2(b)(2)(A)(i). The 20 successfully 

submitted FINs include one 

conventional energy production project, 

one electricity transmission project, two 

pipeline projects, one ports and 

waterways project, 13 renewable energy 

production projects, and two water 

resource projects. 

Some commenters expressed the 

belief that the Permitting Council will 

receive more interest from potential 

mining project sponsors, and ultimately 

cover more mining projects, than 

estimated in the preamble to the 

proposed rule. But the Permitting 

Council continues to anticipate that 

very few—likely 10 or fewer—mining 

project FINs will be submitted before 

the FAST–41 sunset date of December 4, 

2022. 42 U.S.C. 4370m–12. This is in 

part because the Permitting Council 

expects the sunset date to act as a 

disincentive to the project sponsors who 

are likely to be most interested in 

FAST–41 coverage. Such sponsors 

include proponents of large or complex 

mining projects with a significant 

number of Federal and state 

authorizations and with longer 

permitting horizons. It is questionable 

whether these project sponsors would 

be able to derive the full benefits of 

FAST–41 coverage if the FAST–41 

program may terminate before the 

Federal review and decision-making 

process for the project can be 

completed. 

The Permitting Council notes that the 

statutory criteria for becoming a FAST– 

41 covered project is different from the 

criteria for whether a project is subject 

to the provisions of E.O. 13807, or E.O. 

13766, Expediting Environmental 

Reviews and Approvals for High 

Priority Infrastructure Projects, 82 FR 

8567 (Jan. 30, 2017). Accordingly, the 

fact that a federal agency may have 

determined that a project is subject to 

one or both of these E.O.s does not 

indicate that that project is, would, or 

could become a FAST–41 covered 

project. The exclusive means by which 

a project can become a FAST–41 

covered project is through the 

submission and review of a project FIN 

in accordance with the FAST–41 

covered project criteria at 42 U.S.C. 

4370m(6), and the subsequent addition 

of the project to the Permitting 

Dashboard by the Permitting Council 

Executive Director in accordance with 

42 U.S.C. 4370m–2(b)(2). 

Based on historical experience, only a 

portion of submitted FINs become 

covered projects. Since the inception of 

FAST–41, only 20 submitted FINs have 

become covered projects across all 10 

FAST–41 sectors. To date, the 

Permitting Council has received fewer 

than five FINs for projects that involve 

mining that may potentially have been 

eligible for coverage under the statutory 

FAST–41 sectors (e.g., conventional 

energy). But all of these FINs either 

were rejected for failing to meet other 

FAST–41 eligibility criteria or were 

withdrawn by the project sponsor for 

other reasons. It is therefore unlikely 

that adding mining to the 10 statutory 


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FAST–41 sectors will result in the 

coverage of a substantial number of new 

projects. 

Designating mining as a FAST–41 

sector could result in reduced costs for 

any mining project sponsor that obtains 

FAST–41 coverage for its project and for 

the Federal agencies with review and 

permitting responsibilities for the 

covered project by virtue of potentially 

improved timeliness, predictability, and 

transparency, associated increased 

Federal agency coordination, and 

reduced duplication of Federal and 

project sponsor effort. However, these 

benefits are difficult to quantify, 

particularly given that the Federal 

permitting and environmental review 

requirements and the permitting 

timetable for each project are unique 

and vary widely from project to project. 

Because the Permitting Council does not 

know in advance how many mining 

projects will become FAST–41 covered 

projects, what the permitting or 

environmental review requirements 

might be for any potential future 

covered mining project, or what 

opportunities might exist to coordinate 

any Federal agency reviews that might 

be necessary for any such covered 

mining project, it is impossible to 

predict with any specificity what, if any, 

economic benefit might broadly accrue 

as a result of designating mining as a 

FAST–41 sector. 

Adding mining as a FAST–41 sector 

will not directly increase or decrease the 

costs to agencies of complying with the 

substantive provisions of FAST–41, 

although there will be costs to the 

Permitting Council associated with any 

additional project that might become a 

covered project. 

FAST–41 does not impose any 

regulatory requirements on covered 

project sponsors; FAST–41 

implementation obligations fall 

primarily on the government. However, 

because FAST–41 is a voluntary 

program, sponsors of mining projects 

potentially eligible for FAST–41 

coverage would incur some costs 

associated with seeking FAST–41 

coverage. These costs associated with a 

request to be a covered project likely 

will be small. Seeking FAST–41 

coverage involves formulating and 

submitting a project FIN, which is 

expected to take only a few hours. See 

42 U.S.C. 4370m–2(a)(i)(C). Because the 

Permitting Council anticipates receiving 

few additional project FINs as a result 

of adding mining as a FAST–41 sector, 

and the burden associated with 

preparing a FIN is minimal, the 

additional economic cost associated 

with adding mining as a FAST–41 

sector, if any, would be negligible, and 

likely would be counterbalanced by the 

benefits of FAST–41 coverage. 

Procedural Matters 

Regulatory Planning and Review (E.O. 

12866) and Improving Regulation and 

Regulatory Review (E.O. 13563) 

This action is not a significant 

regulatory action and was not submitted 

to OMB for further review. 

Reducing Regulation and Controlling 

Regulatory Costs (E.O. 13771) 

This rule is an E.O. 13771 

deregulatory action. A discussion of the 

potential economic benefits of this rule 

can be found in the rule’s Economic 

Analysis section. 

Regulatory Flexibility Act (RFA), as 

Amended by the Small Business 

Regulatory Enforcement Fairness Act 

(SBREFA), 5 U.S.C. 601 et seq. 

Pursuant to 5 U.S.C. 605(b), the 

Permitting Council certifies that 

providing the option of FAST–41 

coverage for qualified mining projects 

that are not already eligible for FAST– 

41 coverage under any of the statutory 

FAST–41 sectors will not have a 

significant economic impact on a 

substantial number of small entities. 

The Permitting Council anticipates 

that the addition of mining as a FAST– 

41 sector will result in the submission 

of 10 or fewer mining project FINs, at 

least some of which, based on the 

Permitting Council’s past experience 

with project FINs that involve mining, 

likely will not become FAST–41 

covered projects. Though the Permitting 

Council does not conduct an analysis of 

the business structures of FAST–41 

project sponsors to determine whether 

they are small entities, it is possible that 

at least some of the 10 or fewer project 

sponsors that submit FINs for mining 

projects could be small entities. 

However, because 10 or fewer entities 

likely will be affected, the Permitting 

Council does not anticipate that adding 

mining as a FAST–41 sector will affect 

a substantial number of small entities. 

Nor will adding mining as a FAST–41 

sector significantly or 

disproportionately impose costs on any 

small entity that is affected by the rule. 

The requirements for submitting a 

project FIN are simple and not 

burdensome. The FAST–41 statute only 

requires the project sponsor to formulate 

and send to the Permitting Council and 

the lead or facilitating agency a project 

FIN that contains: (1) A statement of the 

purpose and objectives of the project; (2) 

a description of the general project 

location; (3) any available geospatial 

information about project and 

environmental, cultural, and historic 

resource locations; (4) a statement 

regarding the technical and financial 

ability of the project sponsor to 

construct the proposed project; (5) a 

statement of any Federal financing, 

environmental reviews, and 

authorizations anticipated to be 

required to complete the proposed 

project; and (6) an assessment that the 

proposed project meets the definition of 

a covered project pursuant to 42 U.S.C. 

4370m(6)(A) with supporting rationale. 

42 U.S.C. 4370m–2(a)(1)(A) & (C). Any 

project sponsor credibly seeking Federal 

authorization and environmental review 

for a project that requires $200 million 

or more in investment will have the 

information required to submit a project 

FIN readily available, and preparing and 

submitting a project FIN should require 

only a few hours of effort. FAST–41 

contains no pre-FIN requirements 

(although project sponsors are free to 

consult the Permitting Council with any 

questions about the FAST–41 program 

and FIN preparation or submission), and 

there are no regulations implementing 

FAST–41 that impose any additional 

requirements on the project sponsor. 

The lead or facilitating agency (and in 

some instances, the Permitting Council 

Executive Director) will review the FIN 

in accordance with sections 4.4–4.12 of 

the FAST–41 Guidance to determine 

whether the project is a FAST–41 

covered project. See Fast-41 Guidance at 

30–34. If the project is a covered project, 

FAST–41 imposes no requirements or 

obligations on the project sponsor that 

are additional to those imposed by the 

substantive Federal authorization or 

environmental review statutes that 

otherwise apply to the project. 

Accordingly, adding mining as FAST– 

41 sector will not significantly affect a 

substantial number of small entities, 

and the RFA does not apply. 

Congressional Review Act (CRA), 5 

U.S.C. 804 

This rule is not a ‘‘major rule’’ as 

defined under 5 U.S.C. 804(2) because it 

will not cause a major increase in costs 

or prices for consumers; individual 

industries; Federal, state, or local 

government agencies; or geographic 

regions. The rule will not have an 

annual effect on the economy of $100 

million or more. 

Unfunded Mandates Reform Act 

(UMRA), 2 U.S.C. 1501 et seq. 

This rule does not impose an 

unfunded mandate on state, local, or 

tribal governments, or on the private 

sector of more than $100 million per 

year. The rule does not have a 

significant or unique effect on state, 


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Federal Register / Vol. 86, No. 5 / Friday, January 8, 2021 / Rules and Regulations 1287 

local, or tribal governments or the 

private sector. Therefore, a statement 

containing the information required by 

the UMRA is not required. The rule also 

is not subject to the requirements of 

UMRA section 203 because it contains 

no regulatory requirements that might 

significantly or uniquely affect small 

governments. The rule contains no 

requirements that apply to small 

governments, nor does it impose 

obligations upon them. 

Federalism (E.O. 13132) 

This action does not have federalism 

implications under E.O. 13132. The rule 

will not have a substantial direct effect 

on the states, on the relationship 

between the Federal Government and 

the states, or on the distribution of 

power and responsibilities among the 

levels of government. The rule affects 

only the eligibility of mining project 

proponents to participate in the 

voluntary FAST–41 program; it will not 

affect the obligations or rights of states 

or local governments or state or local 

governmental entities. 

Civil Justice Reform (E.O. 12988) 

This rule complies with section 3(a) 

of E.O. 12988, which requires agencies 

to review all rules to eliminate errors 

and ambiguity and to write all 

regulations to minimize litigation. This 

rule also meets the criteria of section 

3(b)(2), which requires agencies to write 

all regulations in clear language with 

clear legal standards. 

Paperwork Reduction Act (PRA), 44 

U.S.C. 3501 et seq. 

The PRA provides that an agency may 

not conduct or sponsor, and a person is 

not required to respond to, a collection 

of information unless it displays a 

currently valid control number issued 

by OMB. Collections of information 

include requests and requirements that 

an individual, partnership, or 

corporation obtain information, and 

report it to a Federal agency. See 44 

U.S.C. 3502(3); 5 CFR 1320.3(c) & (k). 

The rule does not involve an agency 

request for information, nor does it 

require an information response. The 

rule would not alter any of the other 

FAST–41 eligibility criteria or 

implementation of FAST–41, and does 

not change the information collected 

from project sponsors seeking FAST–41 

coverage. The rule could result in a 

small increase in the number of project 

sponsors submitting FINs to the 

Permitting Council. 

NEPA, 42 U.S.C. 4321 et seq. 

NEPA requires agencies to consider 

the reasonably foreseeable 

environmental consequences of major 

Federal actions significantly affecting 

the quality of the human environment. 

The rule does not make any projectlevel decisions and does not authorize 

any activity or commit resources to a 

project that may affect the environment. 

Furthermore, under FAST–41 all 

covered projects are subject to NEPA 

review. 42 U.S.C. 4370m(6)(A). 

FAST–41 focuses on facilitating 

interagency coordination and agency 

accountability for meeting self-imposed 

environmental review and permitting 

timetables and providing certain legal 

protections for covered projects. The 

statute expressly does not supersede 

NEPA or affect any internal procedure 

or decision-making authority of any 

agency. See 42 U.S.C. 4370m–6(d); 42 

U.S.C. 4370m–6(e); 42 U.S.C. 4370m– 

11. Because FAST–41 coverage does not 

alter or affect the discretion of any 

agency to approve or deny any permit 

or authorization for any project, 

extending potential FAST–41 eligibility 

to otherwise qualified mining projects 

does not make any mining project more 

or less likely to be permitted, 

authorized, or constructed, or any 

environmental effect that may be 

associated with such a project to occur. 

See 42 U.S.C. 4370m–6(d)(2). 

Effects on the Energy Supply (E.O. 

13211) 

This rule is not a significant energy 

action for the purposes of E.O. 13211 

because it will not have any discernible 

effect on the energy supply. Qualified 

energy-related mining projects such as 

coal and uranium are eligible for 

coverage under FAST–41’s 

‘‘conventional energy production’’ 

sector. The only additive effect of the 

rule would be to make mining projects 

that are unrelated to energy production 

(and not covered under other statutory 

FAST–41 sectors) eligible for coverage 

under FAST–41. 

Adding mining as a FAST–41 sector 

will not extend FAST–41 coverage to 

any specific project—energy related or 

otherwise—nor will it permit or 

authorize any mining project. Qualified 

applicants must first seek and obtain 

FAST–41 coverage. Participation in the 

FAST–41 program does not alter any 

agency’s existing discretion to approve 

or deny project permits or 

authorizations, and does not make 

ultimate project authorization more or 

less likely. Accordingly, this final rule 

that adds mining as a FAST–41 sector 

will not affect the supply, distribution, 

or use of energy, and is not a 

‘‘significant energy action’’ for the 

purpose of E.O. 13211. 

Immediate Effective Date (5 U.S.C. 

553(d)) 

Section 553(d) of the APA generally 

requires agencies to publish a rule in the 

Federal Register at least 30 days prior 

to its effective date. The purpose of this 

requirement is to inform affected parties 

and give them a reasonable time to 

adjust to the requirements of the new 

rule. Am. Federation of Gov’t Empl., 

AFL–CIO v. Block, 655 F.2d 1153, 1157 

(D.C. Cir. 1981). Pursuant to 5 U.S.C. 

553(d)(3), an agency may dispense with 

the 30-day requirement for good cause. 

In this circumstance good cause exists 

to dispense with the 30 day requirement 

because the rule designating mining as 

a FAST–41 sector does not impose any 

short-term requirement or obligation on 

any party other than the Permitting 

Council members who promulgated the 

rule. The other parties affected by the 

rule are prospective covered project 

sponsors, who will not be required to 

take any prompt action or comply with 

any new regulatory requirements. 

Instead, the rule extends to prospective 

covered project sponsors the 

opportunity to voluntarily apply for and 

receive FAST–41 coverage benefits at 

their discretion. The rule does not 

require timely project sponsor action to 

receive potential FAST–41 benefits. 

Because a 30-day delayed effective 

date in this circumstance would not 

serve the purpose of 5 U.S.C. 553(d), 

good cause exists to dispense with the 

requirement. Accordingly this rule takes 

immediate effect upon publication in 

the Federal Register. 

List of Subjects in 40 CFR Part 1900 

Critical infrastructure, Infrastructure, 

Mines, Mineral resources, Permitting, 

Reporting and recordkeeping 

requirements, Underground mining. 

■ For the reasons stated in the preamble 

to the proposed rule and the preamble 

above, under the authority stated below, 

the Federal Permitting Improvement 

Steering Council hereby adds 40 CFR 

chapter IX, consisting of part 1900, to 

read as follows: 

CHAPTER IX—FEDERAL PERMITTING 

IMPROVEMENT STEERING COUNCIL 

PART 1900—FEDERAL PERMITTING 

IMPROVEMENT 

Sec. 

1900.1 Definitions. 

1900.2 FAST–41 sectors. 

Authority: 42 U.S.C. 4370m et seq. 

§ 1900.1 Definitions. 

For the purposes of this part, the 

following terms shall have the meaning 

indicated: 


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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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