06-6123. Defense Priorities and Allocations System (DPAS): Administrative and Technical Corrections

AGENCY:

Bureau of Industry and Security, U.S. Department of Commerce.

ACTION:

Final rule.

SUMMARY:

The Bureau of Industry and Security (BIS) is amending the Defense Priorities and Allocations System (DPAS) Regulation (15 CFR part 700) to make administrative and technical corrections. These amendments do not alter the substance or effect of the DPAS regulation.

DATES:

This rule is effective July 13, 2006.

FOR FURTHER INFORMATION CONTACT:

Liam McMenamin, Office of Strategic Industries and Economic Security, Bureau of Industry and Security, U.S. Department of Commerce, Telephone: [phone].

SUPPLEMENTARY INFORMATION:

Background

Under Title I of the Defense Production Act of 1950 (DPA), as amended, (50 U.S.C. App. 2061, et seq.), the President is authorized to require preferential acceptance and performance of contracts or orders supporting certain approved national defense and energy programs, and to allocate materials, services, and facilities in such a manner as to promote these approved programs. Additional priorities authority is found in section 18 of the Selective Service Act of 1948 (50 U.S.C. App. 468), 10 U.S.C. 2538, and 50 U.S.C. 82. The President delegated the priorities and allocations authorities of the DPA in Executive Order 12919 (June 3, 1994; amended by Executive Order 13286, February 28, 2003). As part of that delegation, the President designated the Secretary of Commerce to administer the Defense Priorities and Allocations System (DPAS). DPAS authority has also been extended to support emergency preparedness activities under Title VI of the Robert T. Stafford Disaster Relief and Emergency Assistance Act (Stafford Act), as amended (42 U.S.C. 5195, et seq.). The DPAS regulation is found at 15 CFR part 700.

As part of its periodic review of the DPAS regulation, the Department of Commerce has identified several typographical errors and outdated provisions in the DPAS regulation. Accordingly, this rule amends the DPAS regulation to correct those errors and delete outdated or obsolete provisions and language. This rule also amends the list of approved programs in Schedule I to the regulation.

Amendments to the DPAS Regulation

This rule revises the DPAS regulation by correcting the citation to the Defense Production Act's definition of “national defense” in section 700.1(c) and notes that the definition of this term was amended in the December 2003 reauthorization of the Defense Production Act (Pub. L. 108-195) to include critical infrastructure protection and restoration.

This rule also corrects a typographical error in section 700.2(a) by replacing “Schedule 1” with “Schedule I.”

This rule removes erroneous references in section 700.2(c), 700.10(b), 700.18(b)(1)(i), 700.18(b)(2), and 700.55(b)(2) to copies of delegations of authority and memoranda of understanding being provided as appendices to part 700. The Department has not published these documents as appendices to part 700 since 1998, following a determination that these documents are of limited public interest because they describe administrative interagency agreements.

This rule replaces the words “Director, Federal Emergency Management Agency” with “Secretary of Homeland Security” in the definition of Approved Program in section 700.8 to reflect the amendments to Executive Order 12919 contained in Executive Order 13286.

This rule changes the program identification symbol examples in section 700.11(c) from “A1, B2, or H6” to read “A1, C2, or N1.” Program identification symbols indicate which approved program is being supported by a rated order. The “B2” symbol is not an approved program identification symbol and the “H6” symbol is not commonly used.

This rule corrects a citation error in section 700.18(a)(2)(iv)(b). Information on requesting priority rating authority is found in section 700.51, not in section 700.53.

This rule adds a sentence to section 700.18(b)(1)(i) clarifying that the Departments of Agriculture and Commerce have agreed that the Department of Defense may place rated contracts and orders for food resources in support of troops, including but not limited to, meals ready to eat (MRE), “tray-packs” (T-rations), A-rations, and B-rations. The 1991 agreement between the Departments of Agriculture and Commerce is recorded as Attachment A to the Department of Commerce's delegation of authority to the Department of Defense. This rule also removes the erroneous reference in section 700.18(b)(1)(i) to a copy of the Department of Commerce's delegation of authority to the Department of Defense being provided as an appendix to part 700.

This rule removes erroneous references to a memorandum of understanding between the Departments of Commerce and Interior in sections 700.18(b)(1)(vii) and 700.18(b)(2). The Department of Commerce terminated this memorandum of understanding in 1998.

This rule removes section 700.30(b). The Department of Commerce has rescinded DPAS Emergency Delegation 1. The Department of Commerce has reviewed its emergency preparedness plans and determined that DPAS Emergency Delegation 1 is not necessary to administer this regulation in a national emergency because the Department's internal emergency plans provide for continuation of the DPAS and related activities.

This rule corrects a citation error in section 700.60(b). Administrative Subpoenas, Demands for Information, and Inspection Authorizations are discussed in section 700.71(c), not in section 700.71(b).

This rule changes the name “Office of Industrial Resource Administration,” referenced in sections 700.72(b) and 700.93, to “Office of Strategic Industries and Economic Security” to reflect the current name of that organization.

This rule corrects an error in section 700.81(b) related to the title of the official who has the discretion to accept an appeal after the prescribed 45-day period for good cause shown. The Assistant Secretary for Export Administration has this discretion.

This rule revises Schedule I to the regulation by adding a list of Homeland Security programs in the first column to reflect the Department of Commerce's March 2006 DPAS delegation to the Department of Homeland Security.

This rule revises the current N1 program identification symbol and adds N2-N8 to the list of approved programs for priorities and allocations support in Schedule I's first and second columns. The Department of Homeland Security provided the Department of Commerce with the list of Homeland Security programs approved for priorities and allocations support in June 2006.

This rule also replaces the words “Federal Emergency Management Agency” with “Department of Homeland Security” in Schedule I's third column to reflect the March 2006 DPAS delegation to the Department of Homeland Security.

This rule changes the names of the Department of Defense agencies listed in footnote 1 to Schedule I to reflect the current organizational structure of the Department of Defense.

This rule also corrects an error in Appendix I to part 700 by replacing the former Form BXA-999, “Request for Special Priorities Assistance,” with a copy of the current Form BIS-999, “Request for Special Priorities Assistance.”

Rulemaking Requirements

1. This rule has been determined to be not significant for purposes of Executive Order 12866.

2. Notwithstanding any other provision of law, no person is required to respond to, nor shall any person be subject to a penalty for failure to comply with a collection of information, subject to the requirements of the Paperwork Reduction Act of 1995 (44 U.S.C. 3501, et seq.) unless the collection of information displays a currently valid Office of Management and Budget control number. This rule does not involve any collections of information that are subject to the Paperwork Reduction Act.

3. This rule does not contain policies with federalism implications as this term is defined in Executive Order 13132.

4. The Department finds that there is good cause under 5 U.S.C. 553(b)(B) to waive the provisions of the Administrative Procedure Act (APA) requiring prior notice and the opportunity for public comment. Because these revisions are not substantive changes to the DPAS regulation, and because the nature of these changes is of little public interest, it is unnecessary to provide notice and opportunity for public comment under APA standards. In addition, the 30-day delay in effectiveness required by 5 U.S.C. 553(d) is not applicable because this rule is not a substantive rule. It is purely administrative in nature and does not affect the rights of the public. No other law requires that a notice of proposed rulemaking and an opportunity for public comment be given for this rule.

The analytical requirements of the Regulatory Flexibility Act (5 U.S.C. 601, et seq.) are not applicable because notice of proposed rulemaking and opportunity for public comment are not required to be given for this rule under the Administrative Procedure Act or by any other law.

List of Subjects in 15 CFR Part 700

• Administrative practice and procedure
• Business and industry
• Government contracts
• National defense
• Reporting and recordkeeping requirements
• Strategic and critical materials

For the reasons discussed in the preamble, the Department of Commerce amends 15 CFR part 700 as follows:

PART 700—[AMENDED]

1. The authority citation for part 700 continues to read as follows:

Authority: Titles I and VII of the Defense Production Act of 1950, as amended (50 U.S.C. App. 2061, et seq.), Title VI of the Robert T. Stafford Disaster Relief and Emergency Assistance Act (42 U.S.C. 5195, et seq.), Executive Order 12919, 59 FR 29525, 3 CFR, 1994 Comp. 901, and Executive Order 13286, 68 FR 10619, 3 CFR, 2003 Comp. 166; section 18 of the Selective Service Act of 1948 (50 U.S.C. App. 468), 10 U.S.C. 2538, 50 U.S.C. 82, and Executive Order 12742, 56 FR 1079, 3 CFR, 1991 Comp. 309; and Executive Order 12656, 53 FR 226, 3 CFR, 1988 Comp. 585.

2. In § 700.1, revise the second sentence in paragraph (c) to read as follows:

§ 700.1

Purpose of this regulation.

* * * * *

(c) * * * The definition of “national defense” in section 702(14) of the Defense Production Act provides that this term includes “emergency preparedness activities” conducted pursuant to Title VI of the Stafford Act and “critical infrastructure protection and restoration.”

* * * * *

3. In § 700.2, revise the last sentence in paragraph (a) and paragraph (c) to read as follows:

§ 700.2

Introduction.

(a) * * * A complete list of currently approved programs is provided at Schedule I to this part.

* * * * *

(c) Commerce has delegated authorities to place priority ratings on contracts or orders necessary or appropriate to promote the national defense to the government agencies that issue such contracts or orders. Schedule I includes a list of agencies delegated this authority.

4. In § 700.8, revise the definition of Approved Program to read as follows:

§ 700.8

Definitions.

* * * * *

Approved program. A program determined as necessary or appropriate for priorities and allocations support to promote the national defense by the Secretary of Defense, the Secretary of Energy, or the Secretary of Homeland Security, under the authority of the Defense Production Act, the Stafford Act, and Executive Order 12919, or the Selective Service Act and related statutes and Executive Order 12742.

* * * * *

5. In § 700.10, revise paragraph (b) to read as follows:

§ 700.10

Delegation of authority.

* * * * *

(b) Within the Department of Commerce, these responsibilities have been assigned to the Office of Strategic Industries and Economic Security. The Department of Commerce has authorized the Delegate Agencies to assign priority ratings to orders for items needed for approved programs.

6. In § 700.11, revise the first sentence in paragraph (c) to read as follows:

§ 700.11

Priority ratings.

* * * * *

(c) Priority ratings. A priority rating consists of the rating symbol—DO and DX—and the program identification symbol, such as A1, C2, or N1. * * *

7. In § 700.18, revise the second sentence in paragraph (a)(2)(iv)(B) and paragraphs (b)(1) and (b)(2) to read as follows:

§ 700.18

Limitations on placing rated orders.

* * * * *

(2) * * *

(iv) * * *

(B) * * * [For information on requesting priority rating authority, see § 700.51.]

* * * * *

(b) Jurisdiction limitations. (1) The priorities and allocations authority for certain items have been delegated under Executive Orders 12919 and 12742, other executive order, or Interagency Memoranda of Understanding to other agencies. Unless otherwise agreed to by the concerned agencies, the provisions of this part are not applicable to these items which include:

(i) Food resources, food resource facilities, and the domestic distribution of farm equipment and commercial fertilizer (Department of Agriculture) (The Department of Agriculture and the Department of Commerce have agreed that the Department of Defense may place rated contracts and orders for food resources in support of troops, including but not limited to, meals ready to eat (MREs), “tray-packs” (T-rations), A-rations, and B-rations);

(ii) All forms of energy, including radioisotopes, stable isotopes, source material, and special nuclear material produced in Government-owned plants or facilities operated by or for the Department of Energy (Department of Energy);

(iii) Health resources (Department of Health and Human Services);

(iv) All forms of civil transportation (Department of Transportation);

(v) Water resources (Department of Defense/U.S. Army Corps of Engineers); and

(vi) Communications services (National Communications System under Executive Order 12472 of April 3, 1984).

(2) The jurisdiction of the Department of Commerce and the Departments of Energy and Agriculture over certain specific items included in the categories listed above has been clarified by Interagency Memoranda of Understanding.

* * * * *

8. In § 700.30, remove and reserve paragraph (b).

9. In § 700.55, revise paragraph (b)(2) to read as follows:

§ 700.55

Assistance programs with Canada and other nations.

* * * * *

(b) * * *

(2) The Department of Commerce coordinates with the Canadian Public Works and Government Services Canada on all matters of mutual concern relating to the administration of this regulation.

* * * * *

10. In § 700.60, revise the second sentence in paragraph (b) to read as follows:

§ 700.60

General provisions.

* * * * *

(b) * * * Other official actions which pertain to compliance (Administrative Subpoenas, Demands for Information, and Inspection Authorizations) are discussed in § 700.71(c).

11. In § 700.72, revise paragraph (b) to read as follows:

§ 700.72

Compulsory process.

* * * * *

(b) Compulsory process may be sought in advance of an audit, investigation, or other inquiry, if, in the judgment of the Director of the Office of Strategic Industries and Economic Security, U.S. Department of Commerce, in consultation with the Chief Counsel for Industry and Security, U.S. Department of Commerce, there is reason to believe that a person will refuse to permit an audit, investigation, or other inquiry, or that other circumstances exist which make such process desirable or necessary.

12. In § 700.81, revise the last sentence in paragraph (b) to read as follows:

§ 700.81

Appeals.

* * * * *

(b) * * * After this 45-day period, an appeal may be accepted at the discretion of the Assistant Secretary for Export Administration for good cause shown.

* * * * *

13. Revise § 700.93 to read as follows:

§ 700.93

Communications.

All communications concerning this regulation, including requests for copies of the regulation and explanatory information, requests for guidance or clarification, and requests for adjustment or exception shall be addressed to the Office of Strategic Industries and Economic Security, Room 3876, U.S. Department of Commerce, Washington, DC 20230, Ref: DPAS; telephone: [phone] or fax: [phone].

Schedule I to Part 700—Approved Programs and Delegate Agencies

* * * * *

14. In Schedule I to Part 700, add the heading “Homeland security programs”, revise N1, add N2-N8, and revise  ^[1] to read as follows:

Program identification symbol	Approved program	Delegate agency
*         *         *         *         *         *         *
Homeland security programs:
N1	Federal emergency preparedness, mitigation, response, and recovery	Department of Homeland Security.
N2	State, local, tribal government emergency preparedness, mitigation, response, and recovery	Do.
N3	Intelligence and warning systems	Do.
N4	Border and transportation security	Do.
N5	Domestic and counter-terrorism, including law enforcement	Do.
N6	Chemical, biological, radiological, and nuclear countermeasures	Do.
N7	Critical infrastructure protection and restoration	Do.
N8	Miscellaneous	Do.

* * * * *

15. Revise Appendix I to part 700 to read as follows:

Appendix I to Part 700—Form BIS-999—Request for Special Priorities Assistance

Dated: July 3, 2006.

Matthew S. Borman,

Deputy Assistant Secretary for Export Administration.

Footnotes

1.  Department of Defense includes: The Office of the Secretary of Defense, the Military Departments, the Joint Staff, the Combatant Commands, the Defense Agencies, the Defense Field Activities, all other organizational entities in the Department of Defense, and, for purposes of this regulation, the Central Intelligence Agency and the National Aeronautics and Space Administration as Associated Agencies.