[Federal Register Volume 75, Number 136 (Friday, July 16, 2010)]
[Proposed Rules]
[Pages 41405-41421]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2010-17289]
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DEPARTMENT OF ENERGY
10 CFR Part 217
RIN 1901-AB28
Energy Priorities and Allocations System Regulations
AGENCY: Department of Energy.
ACTION: Proposed rule.
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SUMMARY: This proposed rule would establish standards and procedures by
which the U.S. Department of Energy (DOE) may require that certain
contracts or orders that promote the national defense be given priority
over other contracts or orders. This rule also sets new standards and
procedures by which DOE may allocate materials, services and facilities
to promote the national defense. DOE is publishing this rule to comply
with a requirement of the Defense Production Act Reauthorization of
2009 (Pub. L. 111-67) to publish regulations providing standards and
procedures for prioritization of contracts and orders and for
allocation of materials, services and facilities to promote the
national defense.
DATES: Comments must be received by August 16, 2010.
ADDRESSES: You may submit comments, identified by RIN 1901-AB28, by any
of the following methods:
Federal eRulemaking Portal: http://www.regulations.gov.
Follow the instructions for submitting comments.
By e-mail directly to [email protected]. Include RIN
1901-AB28 in the subject line.
By mail or delivery to Dr. Kenneth Friedman, Office of
Infrastructure Security and Energy Restoration, U.S. Department of
Energy, Room 1E-256, 1000 Independence, Avenue, SW., Washington, DC
20585.
Written comments regarding the burden-hour estimates or other
aspects of the collection-of-information requirements contained in this
proposed rule may be submitted to Dr. Kenneth Friedman (see ADDRESSES)
and by e-mail to [email protected].
FOR FURTHER INFORMATION CONTACT: Dr. Kenneth Friedman, Office of
Infrastructure Security and Energy Restoration, U.S. Department of
Energy, 1000 Independence Ave., SW., Washington, DC 20585; (202) 536-
0379 ([email protected]). Ms. S. Becca Smith, Office of the General
Counsel (GC-76), U.S. Department of Energy, 1000 Independence Ave.,
SW., Washington, DC 20585; (202) 586-9788 ([email protected]).
SUPPLEMENTARY INFORMATION:
Background
This rule expands upon Title 10 of the Code of Federal Regulations
(10 CFR) part 216, DOE Energy Priorities and Allocations System (EPAS)
regulations.
10 CFR part 216 implements DOE's administration of priorities and
allocations actions in order to maximize domestic energy supplies
pursuant to its authority under Section 101(c) of the Defense
Production Act (50 U.S.C. app. Sec. 2071 et seq.) (DPA) as delegated
by Executive Order 12919 (June 3, 1994). These proposed regulations, to
be codified at 10 CFR part 217, would implement DOE's administration of
priorities and allocations in order to promote the national defense
pursuant to its DPA authorities other than section 101(c). The EPAS has
two principal components: priorities and allocations. Under the
priorities component, certain contracts between the government and
private parties or between private parties for the production or
delivery of industrial resources are required to be given priority over
other contracts to facilitate expedited delivery in promotion of the
U.S. national defense. Under the allocations component, materials,
services, and facilities may be allocated to promote the national
defense. For both components, the term ``national defense'' is defined
broadly and can include critical infrastructure protection and
restoration, emergency preparedness, and recovery from natural
disasters.
[[Page 41406]]
On September 30, 2009, the Defense Production Act Reauthorization
of 2009 (Pub. L. 111-67, 123 Stat. 2006, September 30, 2009) (DPAR) was
enacted. That act requires that within 270 days of its enactment (that
is, by June 20, 2010), all agencies to which the President has
delegated priorities and allocations authority under Title I of the DPA
must publish final rules establishing standards and procedures by which
that authority will be used to promote the national defense in both
emergency and nonemergency situations. That act also required all such
agencies to consult ``as appropriate and to the extent practicable to
develop a consistent and unified Federal priorities and allocations
system.'' (123 Stat. 2006, at 2009). This rule is one of several rules
to be published to implement the provisions of the DPAR. The final
rules of the agencies with DPAR authorities, which are the Departments
of Commerce, Energy, Transportation, Health and Human Services,
Defense, and Agriculture, will comprise the Federal Priorities and
Allocations System.
DOE is publishing this proposed rule as the initial rulemaking
stage in compliance with the provision of the DPAR noted above. DOE
believes that its existing rules at 10 CFR part 216 satisfy the DPAR's
requirement that agencies have standards and procedures in place to
implement the DPA's 101(c) authorities. However, in the interest of
promoting a unified priorities and allocations system, and to implement
DOE's DPA authorities other than those set forth in section 101(c), DOE
is setting forth the proposed EPAS rule. DOE's proposed EPAS provisions
are consistent with the Federal Priorities and Allocations System
regulations being issued by other agencies. The specific proposals in
this rule are more fully described below.
Analysis of the Proposed Priorities and Allocations System
Subpart A
Proposed Subpart A would set forth the purpose of the regulation.
Proposed Sec. 217.1 would state the purpose of the EPAS in general
terms, as providing guidance and procedures for use of the Defense
Production Act Section priorities and allocations authority (other than
the authorities set forth in section 101(c)) with respect to all forms
of energy necessary or appropriate to promote the national defense.
Proposed Sec. 217.2 would provide an overview of the EPAS program.
This section would describe briefly all aspects of the EPAS, including
the resource jurisdiction of other agencies delegated priorities and
allocations authority under the DPA.
Subpart B
The ``Definitions'' section would appear in proposed Sec. 217.20
in Subpart B and provide definitions for the relevant regulatory terms.
Subpart C
Proposed Subpart C would be titled ``Placement of Rated Orders,''
reflecting the fact that the subpart will address only DOE's priorities
authorities; allocations authorities will be addressed in Subpart E.
Proposed Sec. 217.30, ``Delegation of Authority,'' would describe
fully the President's delegations to the Department of Energy. It would
also describe, in general terms, the items subject to DOE's
jurisdiction and note that the Department of Commerce has delegated
certain authorities to DOE. DOE is proposing this provision to
facilitate public understanding of the role that each delegate agency
plays in the overall priorities and allocations system.
Proposed Sec. 217.31, ``Priority ratings,'' describes the
different levels of priority and program symbols used when rating an
order.
Proposed Sec. 217.32, ``Elements of a rated order,'' describes in
detail what each rated order must include, consisting of the
appropriate priority rating, delivery date information, signatures and
required language. DOE seeks comment specifically on the text of this
provision.
Language in proposed Sec. 217.33, ``Acceptance and rejection of
rated orders,'' details when orders placed by DOE may or must be
accepted or rejected, and what the procedures are for both, including
customer notification requirements and certain exceptions for emergency
preparedness conditions. Specifically, persons must accept or reject
rated orders for emergency response-related approved programs within
five days (or two days, depending on the circumstance). DOE is
proposing the shorter time limit in which the recipient must respond to
a rated order issued in connection with an emergency response related
program because such programs would involve disaster assistance,
emergency response or similar activities. DOE believes that the exigent
circumstances inherent in such activities justify requiring a shorter
response time.
Proposed Sec. 217.34, ``Preferential scheduling,'' details
procedures in cases where a person receives two or more conflicting
rated orders. If a person is unable to resolve such a conflict, this
section refers them to special priorities assistance as provided in
Sec. Sec. 217.40 through 217.44. Language in proposed Sec. 217.35,
``Extension of priority ratings,'' requires a person to use rated
orders with suppliers to obtain items or services needed to fill a
rated order. This allows the priority rating to ``extend'' from
contractor to subcontractor to supplier throughout the entire
procurement chain.
Proposed Sec. 217.36, ``Changes or cancellations of priority
ratings and rated orders,'' provides procedures for changing or
cancelling a rated order, both by DOE or other persons who placed the
order.
Proposed Sec. 217.37, ``Use of rated orders,'' lists what items
must be rated. It also introduces the use of certain program
identification symbols used when rated orders may be combined, and
details the procedures for combining two or more rated orders, as well
as rated and unrated orders.
Proposed Sec. 217.38, ``Limitations on placing rated orders,''
prohibits the use of rated orders in a list of specific circumstances.
This section also specifically excludes the use of rated orders for
resources within the resource jurisdiction of agencies other than DOE
with DPA priorities and allocations authority.
Subpart D
Proposed Subpart D ``Special Priorities Assistance'' describes
instances in which DOE would provide assistance in resolving matters
related to priority rated contracts and orders.
Proposed Sec. 217.40 ``General provisions'' illustrates when and
how DOE can provide special priorities assistance, and provides
specific DOE points of contact and the form to be used for requesting
such assistance. Special priorities assistance may generally be
requested for any reason.
Proposed Sec. 217.41, ``Requests for priority rating authority,''
directs persons to the Department of Commerce to request rating
authority for production or construction equipment. This section also
identifies circumstances in which DOE may authorize a person to place a
priority rating on an order to a supplier in advance of the issuance of
a rated prime contract, and lists factors DOE will consider in deciding
whether to grant this authority.
Proposed Sec. 217.42, ``Examples of assistance,'' provides a
number of examples of when special priorities assistance may be
provided, although it
[[Page 41407]]
may generally be provided for any reason.
Proposed Sec. 217.43 lists the criteria for granting assistance,
and proposed Sec. 217.44 lists instances in which assistance may not
be provided (i.e., to secure a price advantage).
Subpart E
Proposed Subpart E, ``Allocation Actions,'' would provide the
public with detailed information on the procedures governing
allocations actions. Allocations actions would most likely be used in
extreme circumstances, such as in response to a national emergency.
Proposed Sec. Sec. 217.50 through 217.52 describe allocations and
when and how allocation orders would be used. Specifically, allocation
orders would be used only if priorities authority would not provide a
sufficient supply of material, services or facilities for national
defense requirements, or when use of priorities authority would cause a
severe and prolonged disruption in the supply of resources available to
support normal U.S. economic activities. Allocation orders would not be
used to ration materials or services at the retail level. Allocation
orders would be distributed equitably among the suppliers of the
resource(s) being allocated and would not require any person to
relinquish a disproportionate share of the civilian market. DOE is
proposing the standards set forth in proposed Sec. Sec. 217.50 through
217.52 to provide reasonable assurance that allocation orders will be
used only in situations where the circumstances justify such orders.
Proposed Sec. 217.53 describes the three types of allocation
orders that DOE might issue, which are a set-aside, an allocation
directive, and an allotment. A set-aside is an official action that
would require a person to reserve resource capacity in anticipation of
receipt of rated orders. An allocation directive is an official action
that would require a person to take or refrain from taking certain
actions in accordance with its provisions (an allocation directive can
require a person to stop or reduce production of an item, prohibit the
use of selected items, divert supply of one type of product to another,
or to supply a specific quantity, size, shape, and type of an item
within a specific time period). An allotment is an official action that
would specify the maximum quantity of an item authorized for use in a
specific program or application. DOE is proposing these three types of
allocation orders because it believes that, collectively they describe
the types of actions that might be taken in any situation in which
allocation is justified.
Proposed Sec. 217.54, ``Elements of an allocation order,'' sets
forth the minimum elements of an allocation order. Those elements are:
(a) A detailed description of the required allocation action(s);
(b) Specific start and end calendar dates for each required
allocation action;
(c) The written signature on a manually placed order, or the
digital signature or name on an electronically placed order, of the
Secretary of Energy. The signature or use of the name certifies that
the order is authorized under this regulation and that the requirements
of this regulation are being followed;
(d) A statement that reads in substance: ``This is an allocation
order certified for national defense use. [Insert the legal name of the
person receiving the order] is required to comply with this order, in
accordance with the provisions of the Energy Priorities and Allocations
System regulation (10 CFR 217), which is part of the Federal Priorities
and Allocations System''; and
(e) A current copy of the Energy Priorities and Allocations System
(10 CFR part 217).
DOE is proposing these elements because it believes that they
provide a proper balance between the need for standards to permit the
public to recognize and understand an allocation order if one is
issued, and the expectation that any actual allocation orders will have
to be tailored to meet unforeseeable circumstances. The language of
proposed Sec. 217.54 would not preclude DOE from including additional
information in an allocation order if circumstances warrant doing so.
Proposed Sec. 217.55, ``Mandatory acceptance of allocation
orders,'' would require that an allocation order must be accepted if a
person is capable of fulfilling the order. If a person is unable to
comply fully with the required actions specific in an allocation order,
the person must notify DOE immediately, explain the extent to which
compliance is possible, and give reasons why full compliance is not
possible. This section also states that a person may not discriminate
against an allocation order in any manner, such as by charging higher
prices or imposing terms and conditions different than what the person
imposed on contracts or orders for the same resource(s) that were
received prior to receiving the allocation order. DOE is proposing
Sec. 217.55 to make it clear to the public that the limited
circumstances and emergency situations that trigger issuance of an
allocation order require immediate response from the public in order to
address the situation in an expedient fashion.
Proposed Sec. 217.56, ``Changes or cancellations of an allocation
order'' provides that an allocation order may be changed or cancelled
by the Department of Energy.
Subpart F
Proposed Subpart F, ``Official Actions,'' provides the specific
official actions the DOE may take to implement the provisions of this
regulation. These official actions include Rating Authorizations,
Directives, and Memoranda of Understanding.
Proposed Sec. 217.61, ``Rating Authorizations,'' defines a rating
authorization as an official action granting specific priority rating
authority, and refers persons to Sec. 217.21 to request such priority
rating authority.
Proposed Sec. 217.62, ``Directives,'' defines a directive as an
official action that requires a person to take or refrain from taking
certain actions in accordance with its provisions. This section details
directive compliance for the public.
Proposed Sec. 217.63, ``Letters and Memoranda of Understanding,''
defines a letter or memorandum of understanding as an official action
that may be issued in resolving special priorities assistance cases to
reflect an agreement reached by all parties, and explains its use.
Subpart G
Proposed Subpart G, ``Compliance,'' provides DOE authority to
enforce the administration of the DPA and other applicable statutes,
this regulation, or an official action. This subpart provides that
willful violations of the provisions of title I or section 705 of the
DPA, this regulation, or a DOE official action, are criminal acts,
punishable as provided in the DPA, and as set forth below in Sec.
217.74.
Proposed Sec. 217.71, ``Audits and investigations,'' details the
procedures for official examinations of books, records, documents, and
other writings and information to ensure that the provisions of the DPA
and other applicable statutes, this regulation, and official actions
have been properly followed. An audit or investigation may also include
interviews and a systems evaluation to detect problems or failures in
the implementation of this regulation.
Proposed Sec. 217.72, ``Compulsory process,'' provides that if a
person refuses to permit a duly authorized DOE representative to have
access to necessary information, DOE may seek the institution of
appropriate legal action, including ex parte application
[[Page 41408]]
for an inspection warrant, in any forum of appropriate jurisdiction.
Proposed Sec. Sec. 217.73 and 217.74 both provide procedures for
notification of failure to comply with the DPA, these regulations, or
DOE official actions, and the violations, penalties and remedies that
may result.
Proposed Sec. 217.75, ``Compliance Conflicts,'' requires that
persons immediately contact DOE should compliance with the DPA, these
regulations, or an official action prevent a person from filling a
rated order or from complying with another provision of the DPA and
other applicable statutes, this regulation, or an official action.
Subpart H
Proposed Sec. 217.80, ``Adjustments, Exceptions, and Appeals,''
would reflect the procedures necessary to request an adjustment or
exception to the provisions of these regulations on the grounds of
exceptional hardship or compliance would be contrary to the intent of
the DPA. These requests must be written and submitted to the DOE
contact provided in this section.
Proposed Sec. 217.81, ``Appeals,'' provides the procedures, timing
and contact information for appealing a decision made on a request for
relief in the previous section.
Subpart I
Proposed Subpart I, ``Miscellaneous Provisions,'' addresses a
number of remaining issues, including protection against claims,
records and reports, applicability issues, and communications.
Proposed Sec. 217.90, ``Protection against claims,'' provides that
a person shall not be held liable for damages or penalties for any act
or failure to act resulting directly or indirectly from compliance with
any part of this regulation, or an official action.
Proposed Sec. 217.91, ``Records and reports,'' would require that
persons are required to make and preserve for at least three years,
accurate and complete records of any transaction covered by this
regulation or an official action. Various requirements and procedures
regarding such records are provided in this section. The
confidentiality provisions of the DPA governing the submission of
information pursuant to the DPA and these regulations are also set
forth.
Proposed Sec. 217.92, ``Applicability of this regulation and
official actions,'' would provide the jurisdictional applicability of
this regulation and official actions.
Proposed Sec. 217.93, ``Communications,'' would provide a DOE
point of contact for all communications regarding this regulation.
A. Review Under Executive Order 12866
This rule has been determined to be significant for purposes of
Executive Order 12866.
B. Review Under the Regulatory Flexibility Act
The Regulatory Flexibility Act (5 U.S.C. 601 et seq.) requires
preparation of an initial regulatory flexibility analysis for any rule
that by law must be proposed for public comment, unless the agency
certifies that the rule, if promulgated, will not have a significant
economic impact on a substantial number of small entities. As required
by Executive Order 13272, ``Proper Consideration of Small Entities in
Agency Rulemaking,'' 67 FR 53461 (August 16, 2002), DOE published
procedures and policies on February 19, 2003, to ensure that the
potential impacts of its rules on small entities are properly
considered during the rulemaking process. 68 FR 7990. DOE has made its
procedures and policies available on the Office of the General
Counsel's Web site, http://www.gc.doe.gov.
DOE reviewed today's final rule under the provisions of the
Regulatory Flexibility Act and the procedures and policies published on
February 19, 2003.
Number of Small Entities
Small entities include small businesses, small organizations and
small governmental jurisdictions. For purposes of assessing the impacts
of this proposed rule on small entities, a small business, as described
in the Small Business Administration's Table of Small Business Size
Standards Matched to North American Industry Classification System
Codes (August 2008 Edition), has a maximum annual revenue of $33.5
million and a maximum of 1,500 employees (for some business categories,
these number are lower). A small governmental jurisdiction is a
government of a city, town, school district or special district with a
population of less than 50,000. A small organization is any not-for-
profit enterprise which is independently owned and operated and is not
dominant in its field.
This rule sets criteria under which DOE (or agencies to which DOE
delegates authority) will authorize prioritization of certain orders or
contracts as well as criteria under which DOE would issue orders
allocating resources or production facilities. Because the rule affects
commercial transactions, DOE believes that small organizations and
small governmental jurisdictions are unlikely to be affected by this
rule. To date, DOE has not exercised its existing allocations
authority. As such, DOE has no basis on which to estimate the number of
small businesses that may be affected by this rule.
Impact
The proposed rule has two principle components: prioritization and
allocation. Under prioritization, DOE or its Delegate Agency designates
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 at the same priority level with suppliers and
subcontractors for supplies and services necessary to fulfill the
recipient's rated order and the suppliers and subcontractors must treat
the request from the rated order 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 actions taken in, or inactions required for,
compliance with the rule.
Although rated orders could require a firm to fill one order prior
to filling another, they would not necessarily require a reduction in
the total volume of orders. The regulations would also not require the
recipient of a rated order to reduce prices or provide rated orders
with more favorable terms than a similar non-rated order. Under these
circumstances, the economic effects on the rated order recipient of
substituting one order for another are likely to be mutually
offsetting, resulting in no net economic impact.
Allocations could be used to control the general distribution of
materials or services in the civilian market. Specific allocation
actions that DOE might take are as follows:
Set-aside: an official action that requires a person to reserve
resource capacity in anticipation of receipt of rated orders.
Allocations directive: an official action that requires a person
to take or refrain from taking certain actions in accordance with
its provisions. An allocation directive can require a person to stop
or reduce production
[[Page 41409]]
of an item, prohibit the use of selected items, or divert supply of
one type of product to another, or to supply a specific quantity,
size, shape, and type of an item within a specific time period.
Allotment: an official action that specifies the maximum
quantity of an item authorized for use in a specific program or
application.
DOE has not yet taken any actions under its existing allocations
authority, and any future allocations actions would be used only in
extraordinary circumstances. As required by section 101(b) of the
Defense Production Act of 1950, as amended, (50 U.S.C. app. Sec.
2071), hereinafter ``DPA,'' and by Section 201(d) of Executive Order
12919 of June 3, 1994, as amended, DOE may implement allocations only
if the Secretary of Energy makes, and the President approves, a finding
``(1) that the material [or service] is a scarce and critical material
[or service] essential to the national defense, and (2) that the
requirements of the national defense for such material [or service]
cannot otherwise be met without creating a significant dislocation of
the normal distribution of such material [or service] in the civilian
market to such a degree as to create appreciable hardship.'' The term
``national defense'' is defined to mean ``programs for military and
energy production or construction, military or critical infrastructure
assistance to any foreign nation, homeland security, stockpiling,
space, and any related activity. Such term includes emergency
preparedness activities conducted pursuant to title IV of the Robert T.
Stafford Disaster Relief and Emergency Assistance Act (42 U.S.C. 5195
et seq.) and critical infrastructure protection and restoration.
Any allocation actions taken by DOE would also have to comply with
Section 701(e) of the DPA (50 U.S.C. app. Sec. 2151(e)), which
provides that ``small business concerns shall be accorded, to the
extent practicable, a fair share of the such material [including
services] in proportion to the share received by such business concerns
under normal conditions, giving such special consideration as may be
possible to emerging business concerns.'' Such a provision may even
provide an economic benefit to small businesses.
Conclusion
Although DOE cannot determine precisely the number of small
entities that would be affected by this rule, DOE believes that the
overall impact on such entities would not be significant. In most
instances, rated contracts would be fulfilled in addition to other
(unrated) contracts and could actually increase the total amount of
business of the firm that receives a rated contract.
Because allocations can be imposed only after an agency
determination confirmed by the President, and because DOE has not yet
used its allocations authority that has existed since passage of the
Defense Production Act in 1950, one can expect allocations will be
ordered only in particular circumstances. However, DOE believes that
the requirement for a Presidential determination and the provisions of
section 701 of the DPA indicate that any impact on small business will
not be significant.
Therefore, for the reasons set forth above, the Assistant General
Counsel for Legislation, Regulation, and Energy Efficiency certifies
that this proposed rule, if implemented, would not have a significant
economic impact on a substantial number of small entities.
C. Review Under the Paperwork Reduction Act
This proposed rule contains a collection-of-information requirement
subject to review and approval by OMB under the Paperwork Reduction Act
(PRA). This requirement has been submitted to OMB for approval. Public
reporting burden for submission of Form DOE-XXX is estimated to average
30 minutes per response, including the time for reviewing instructions,
searching existing data sources, gathering and maintaining the data
needed, and completing and reviewing the collection of information.
Public comment is sought regarding: whether this proposed
collection of information is necessary for the proper performance of
the functions of the agency, including whether the information shall
have practical utility; the accuracy of the burden estimate; ways to
enhance the quality, utility, and clarity of the information to be
collected; and ways to minimize the burden of the collection of
information, including through the use of automated collection
techniques or other forms of information technology. Send comments on
these or any other aspects of the collection of information to Dr.
Kenneth Friedman (see ADDRESSES), and e-mail to [email protected].
Notwithstanding any other provision of the 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 PRA, unless that collection of information displays
a currently valid OMB Control Number.
D. Review Under Executive Order 13211
Executive Order 13211, ``Actions Concerning Regulations That
Significantly Affect Energy Supply, Distribution, or Use,'' 66 FR 28355
(May 22, 2001) requires Federal agencies to prepare and submit to the
Office of Information and Regulatory Affairs (OIRA) a Statement of
Energy Effects for any proposed significant energy action. DOE
determined that today's proposed rule, which sets forth procedures for
compliance with the Defense Production Act (separate from the
procedures set forth at 10 CFR part 216), is not a ``significant energy
action'' within the meaning of Executive Order 13211. The Administrator
of the Office of Information and Regulatory Affairs at OMB also did not
designate this action as a significant energy action. Therefore, DOE
has tentatively concluded that today's proposed rule is not a
significant energy action within the meaning of Executive Order 13211
and has not prepared a Statement of Energy Effects.
E. Review Under Executive Order 13132
DOE reviewed this rule pursuant to Executive Order 13132,
``Federalism,'' 64 FR 43255 (August 4, 1999), which imposes certain
requirements on agencies formulating and implementing policies or
regulations that preempt State law or that have federalism
implications. DOE also reviewed this rule pursuant to DOE's statement
of policy describing the intergovernmental consultation process it will
follow in the development of regulations that have federalism
implications, 65 FR 13735 (March 14, 2000). DOE determined that the
rule would 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.
F. Approval of the Office of the Secretary
The Secretary of Energy has approved publication of this notice of
proposed rulemaking.
List of Subjects in 10 CFR Part 217
Administrative practice and procedure, Business and industry,
Government contracts, National defense, Reporting and recordkeeping
requirements, Strategic and critical materials.
[[Page 41410]]
Issued in Washington, DC on June 3, 2010.
Patricia Hoffman,
Principal Deputy Assistant Secretary, Electricity Delivery and Energy
Reliability.
For the reasons stated in the preamble, DOE proposes to add a new
part 217 to chapter II of title 10 of the Code of Federal Regulations,
to read as set forth below:
PART 217--ENERGY PRIORITIES AND ALLOCATIONS SYSTEM
Subpart A--General
Sec.
217.1 Purpose of this part.
217.2 Priorities and allocations authority.
217.3 Program eligibility.
Subpart B--Definitions
217.20 Definitions.
Subpart C--Placement of Rated Orders
217.30 Delegations of authority.
217.31 Priority ratings.
217.32 Elements of a rated order.
217.33 Acceptance and rejection of rated orders.
217.34 Preferential scheduling.
217.35 Extension of priority ratings.
217.36 Changes or cancellations of priority ratings and rated
orders.
217.37 Use of rated orders.
217.38 Limitations on placing rated orders.
Subpart D--Special Priorities Assistance
217.40 General provisions.
217.41 Requests for priority rating authority.
217.42 Examples of assistance.
217.43 Criteria for assistance.
217.44 Instances where assistance may not be provided.
Subpart E--Allocation Actions
217.50 Policy.
217.51 General procedures.
217.52 Controlling the general distribution of a material in the
civilian market.
217.53 Types of allocation orders.
217.54 Elements of an allocation order.
217.55 Mandatory acceptance of an allocation order.
217.56 Changes or cancellations of an allocation order.
Subpart F--Official Actions
217.60 General provisions.
217.61 Rating Authorizations.
217.62 Directives.
217.63 Letters and Memoranda of Understanding.
Subpart G--Compliance
217.70 General provisions.
217.71 Audits and investigations.
217.72 Compulsory process.
217.73 Notification of failure to comply.
217.74 Violations, penalties, and remedies.
217.75 Compliance conflicts.
Subpart H--Adjustments, Exceptions, and Appeals
217.80 Adjustments or exceptions.
217.81 Appeals.
Subpart I--Miscellaneous Provisions
217.90 Protection against claims.
217.91 Records and reports.
217.92 Applicability of this part and official actions.
217.93 Communications.
Appendix I to Part 217-Sample Form DOE-XXX
Authority: Defense Production Act of 1950, as amended, 50 U.S.C.
App. 2061-2171; E. O. 12919, as amended, (59 FR 29525, June 7, 1994)
Subpart A--General
Sec. 217.1 Purpose of this part.
This part provides guidance and procedures for use of the Defense
Production Act section 101(a) priorities and allocations authority with
respect to all forms of energy necessary or appropriate to promote the
national defense. (The guidance and procedures in this part are
consistent with the guidance and procedures provided in other
regulations that, as a whole, form the Federal Priorities and
Allocations System. Guidance and procedures for use of the Defense
Production Act priorities and allocations authority with respect to
other types of resources are provided for: food resources, food
resource facilities, and the domestic distribution of farm equipment
and commercial fertilizer in [CFR citation to be inserted in final
rule]; health resources in [CFR citation to be inserted in final rule];
all forms of civil transportation in [CFR citation to be inserted in
final rule]; water resources in [CFR citation to be inserted in final
rule]; and all other materials, services, and facilities, including
construction materials in the Defense Priorities and Allocations System
(DPAS) regulation (15 CFR part 700).) DOE regulations at 10 CFR Part
216 describe and establish the procedures to be used by DOE in
considering and making certain findings required by section
101(c)(2)(A) of the Defense Production Act of 1950, as amended.
Sec. 217.2 Priorities and allocations authority.
(a) Section 201 of E. O. 12919 [59 FR 29525] delegates the
President's authority under section 101 of the Defense Production Act
to require acceptance and priority performance of contracts and orders
(other than contracts of employment) to promote the national defense
over performance of any other contracts or orders, and to allocate
materials, services, and facilities as deemed necessary or appropriate
to promote the national defense to:
(1) The Secretary of Agriculture with respect to food resources,
food resource facilities, and the domestic distribution of farm
equipment and commercial fertilizer;
(2) The Secretary of Energy with respect to all forms of energy;
(3) The Secretary of Health and Human Services with respect to
health resources;
(4) The Secretary of Transportation with respect to all forms of
civil transportation;
(5) The Secretary of Defense with respect to water resources; and
(6) The Secretary of Commerce for all other materials, services,
and facilities, including construction materials.
(b) Section 202 of E.O. 12919 states that the priorities and
allocations authority delegated in section 201 of this order may be
used only to support programs that have been determined in writing as
necessary or appropriate to promote the national defense:
(1) By the Secretary of Defense with respect to military production
and construction, military assistance to foreign nations, stockpiling,
outer space, and directly related activities;
(2) By the Secretary of Energy with respect to energy production
and construction, distribution and use, and directly related
activities; and
(3) By the Secretary of Homeland Security with respect to essential
civilian needs supporting national defense, including civil defense and
continuity of government and directly related activities.
Sec. 217.3 Program eligibility.
Certain programs to promote the national defense are eligible for
priorities and allocations support. These include programs for military
and energy production or construction, military or critical
infrastructure assistance to any foreign nation, deploying and
sustaining military forces, homeland security, stockpiling, space, and
any directly related activity. Other eligible programs include
emergency preparedness activities conducted pursuant to title VI of the
Robert T. Stafford Disaster Relief and Emergency Assistance Act [42
U.S.C. 5195 et seq.] and critical infrastructure protection and
restoration.
Subpart B--Definitions
Sec. 217.20 Definitions.
The following definitions pertain to all sections of this part:
Allocation order means an official action to control the
distribution of materials, services, or facilities for a purpose deemed
necessary or appropriate to promote the national defense.
Allotment means an official action that specifies the maximum
quantity or
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use of a material, service, or facility authorized for a specific use
to promote the national defense.
Approved program means a program determined by the Secretary of
Defense, the Secretary of Energy, or the Secretary of Homeland Security
to be necessary or appropriate to promote the national defense, in
accordance with section 202 of E.O. 12919.
Civil transportation includes movement of persons and property by
all modes of transportation in interstate, intrastate, or foreign
commerce within the United States, its territories and possessions, and
the District of Columbia, and, without limitation, related public
storage and warehousing, ports, services, equipment and facilities,
such as transportation carrier shop and repair facilities. However,
``civil transportation'' shall not include transportation owned or
controlled by the Department of Defense, use of petroleum and gas
pipelines, and coal slurry pipelines used only to supply energy
production facilities directly. As applied herein, ``civil
transportation'' shall include direction, control, and coordination of
civil transportation capacity regardless of ownership.
Construction means the erection, addition, extension, or alteration
of any building, structure, or project, using materials or products
which are to be an integral and permanent part of the building,
structure, or project. Construction does not include maintenance and
repair.
Critical infrastructure means any systems and assets, whether
physical or cyber-based, so vital to the United States that the
degradation or destruction of such systems and assets would have a
debilitating impact on national security, including, but not limited
to, national economic security and national public health or safety.
Defense Production Act means the Defense Production Act of 1950, as
amended (50 U.S.C. App. 2061 et seq.).
Delegate Agency means a Federal government agency authorized by
delegation from the Department of Energy to place priority ratings on
contracts or orders needed to support approved programs.
Directive means an official action that requires a person to take
or refrain from taking certain actions in accordance with its
provisions.
Emergency preparedness means all those activities and measures
designed or undertaken to prepare for or minimize the effects of a
hazard upon the civilian population, to deal with the immediate
emergency conditions which would be created by the hazard, and to
effectuate emergency repairs to, or the emergency restoration of, vital
utilities and facilities destroyed or damaged by the hazard. Such term
includes the following:
(1) Measures to be undertaken in preparation for anticipated
hazards (including the establishment of appropriate organizations,
operational plans, and supporting agreements, the recruitment and
training of personnel, the conduct of research, the procurement and
stockpiling of necessary materials and supplies, the provision of
suitable warning systems, the construction or preparation of shelters,
shelter areas, and control centers, and, when appropriate, the
nonmilitary evacuation of the civilian population).
(2) Measures to be undertaken during a hazard (including the
enforcement of passive defense regulations prescribed by duly
established military or civil authorities, the evacuation of personnel
to shelter areas, the control of traffic and panic, and the control and
use of lighting and civil communications).
(3) Measures to be undertaken following a hazard (including
activities for fire fighting, rescue, emergency medical, health and
sanitation services, monitoring for specific dangers of special
weapons, unexploded bomb reconnaissance, essential debris clearance,
emergency welfare measures, and immediately essential emergency repair
or restoration of damaged vital facilities).
Energy means all forms of energy including petroleum, gas (both
natural and manufactured), electricity, solid fuels (including all
forms of coal, coke, coal chemicals, coal liquification, and coal
gasification), and atomic energy, and the production, conservation,
use, control, and distribution (including pipelines) of all of these
forms of energy.
Facilities includes all types of buildings, structures, or other
improvements to real property (but excluding farms, churches or other
places of worship, and private dwelling houses), and services relating
to the use of any such building, structure, or other improvement.
Farm equipment means equipment, machinery, and repair parts
manufactured for use on farms in connection with the production or
preparation for market use of food resources.
Fertilizer means any product or combination of products that
contain one or more of the elements--nitrogen, phosphorus, and
potassium--for use as a plant nutrient.
Food resources means all commodities and products, simple, mixed,
or compound, or complements to such commodities or products, that are
capable of being ingested by either human beings or animals,
irrespective of other uses to which such commodities or products may be
put, at all stages of processing from the raw commodity to the products
thereof in vendible form for human or animal consumption. ``Food
resources'' also means all starches, sugars, vegetable and animal or
marine fats and oils, cotton, tobacco, wool, mohair, hemp, flax fiber,
and naval stores, but does not mean any such material after it loses
its identity as an agricultural commodity or agricultural product.
Food resource facilities means plants, machinery, vehicles
(including on-farm), and other facilities required for the production,
processing, distribution, and storage (including cold storage) of food
resources, livestock and poultry feed and seed, and for the domestic
distribution of farm equipment and fertilizer (excluding transportation
thereof).
Hazard means an emergency or disaster resulting from:
(1) A natural disaster; or
(2) An accidental or human-caused event.
Health resources means materials, facilities, health supplies, and
equipment (including pharmaceutical, blood collecting and dispensing
supplies, biological, surgical textiles, and emergency surgical
instruments and supplies) required to prevent the impairment of,
improve, or restore the physical and mental health conditions of the
population.
Homeland security includes efforts--
(1) To prevent terrorist attacks within the United States;
(2) To reduce the vulnerability of the United States to terrorism;
(3) To minimize damage from a terrorist attack in the United
States; and
(4) To recover from a terrorist attack in the United States.
Industrial resources means all materials, services, and facilities,
including construction materials, but not including: food resources,
food resource facilities, and the domestic distribution of farm
equipment and commercial fertilizer; all forms of energy; health
resources; all forms of civil transportation; and water resources.
Item means any raw, in process, or manufactured material, article,
commodity, supply, equipment, component, accessory, part, assembly, or
product of any kind, technical information, process, or service.
Maintenance and repair and operating supplies or MRO--
[[Page 41412]]
(1) ``Maintenance'' is the upkeep necessary to continue any plant,
facility, or equipment in working condition.
(2) ``Repair'' is the restoration of any plant, facility, or
equipment to working condition when it has been rendered unsafe or
unfit for service by wear and tear, damage, or failure of parts.
(3) ``Operating supplies'' are any resources carried as operating
supplies according to a person's established accounting practice.
Operating supplies may include hand tools and expendable tools, jigs,
dies, fixtures used on production equipment, lubricants, cleaners,
chemicals and other expendable items.
(4) MRO does not include items produced or obtained for sale to
other persons or for installation upon or attachment to the property of
another person, or items required for the production of such items;
items needed for the replacement of any plant, facility, or equipment;
or items for the improvement of any plant, facility, or equipment by
replacing items which are still in working condition with items of a
new or different kind, quality, or design.
Materials includes--
(1) Any raw materials (including minerals, metals, and advanced
processed materials), commodities, articles, components (including
critical components), products, and items of supply; and
(2) Any technical information or services ancillary to the use of
any such materials, commodities, articles, components, products, or
items.
(3) Natural resources such as oil and gas.
National defense means programs for military and energy production
or construction, military or critical infrastructure assistance to any
foreign nation, homeland security, stockpiling, space, and any directly
related activity. Such term includes emergency preparedness activities
conducted pursuant to title VI of the Robert T. Stafford Disaster
Relief and Emergency Assistance Act (42 U.S.C. 5195, et seq.) and
critical infrastructure protection and restoration.
Official action means an action taken by the Department of Energy
or another resource agency under the authority of the Defense
Production Act, E.O. 12919, and this part or another regulation under
the Federal Priorities and Allocations System. Such actions include the
issuance of Rating Authorizations, Directives, Set Asides, Allotments,
Letters of Understanding, Memoranda of Understanding, Demands for
Information, Inspection Authorizations, and Administrative Subpoenas.
Person includes an individual, corporation, partnership,
association, or any other organized group of persons, or legal
successor or representative thereof, or any State or local government
or agency thereof.
Rated order means a prime contract, a subcontract, or a purchase
order in support of an approved program issued in accordance with the
provisions of this part.
Resource agency means any agency delegated priorities and
allocations authority as specified in Sec. 217.2.
Secretary means the Secretary of Energy.
Services includes any effort that is needed for or incidental to -
(1) The development, production, processing, distribution,
delivery, or use of an industrial resource or a critical technology
item;
(2) The construction of facilities;
(3) The movement of individuals and property by all modes of civil
transportation; or
(4) Other national defense programs and activities.
Set-aside means an official action that requires a person to
reserve materials, services, or facilities capacity in anticipation of
the receipt of rated orders.
Stafford Act means title VI (Emergency Preparedness) of the Robert
T. Stafford Disaster Relief and Emergency Assistance Act, as amended
(42 U.S.C. 5195-5197g).
Water resources means all usable water, from all sources, within
the jurisdiction of the United States, which can be managed,
controlled, and allocated to meet emergency requirements.
Subpart C--Placement of Rated Orders
Sec. 217.30 Delegations of authority.
(a) The priorities and allocations authorities of the President
under Title I of the Defense Production Act with respect to all forms
of energy have been delegated to the Secretary of Energy under E.O.
12919 of June 3, 1994 (59 FR 29525).
(b) The Department of Commerce has delegated authority to the
Department of Energy to provide for extension of priority ratings for
``industrial resources,'' as provided in Sec. 261.35 of this part, to
support rated orders for all forms of energy.
Sec. 217.31 Priority ratings.
(a) Levels of priority.
(1) There are two levels of priority established by Federal
Priorities and Allocations System regulations, identified by the rating
symbols ``DO'' and ``DX''.
(2) All DO-rated orders have equal priority with each other and
take precedence over unrated orders. All DX-rated orders have equal
priority with each other and take precedence over DO-rated orders and
unrated orders. (For resolution of conflicts among rated orders of
equal priority, see Sec. 217.34(c).)
(3) In addition, a Directive regarding priority treatment for a
given item issued by the Department of Energy for that item takes
precedence over any DX-rated order, DO-rated order, or unrated order,
as stipulated in the Directive. (For a full discussion of Directives,
see Sec. 217.62.)
(b) Program identification symbols. Program identification symbols
indicate which approved program is being supported by a rated order.
The list of currently approved programs and their identification
symbols are listed in Schedule 1, set forth as an Appendix to 15 CFR
Part 700. For example, DO-E-F3 identifies a domestic energy
construction program. Additional programs may be approved under the
procedures of E.O.12919 at any time. Program identification symbols do
not connote any priority.
(c) Priority ratings. A priority rating consists of the rating
symbol--DO or DX--and the program identification symbol, such as DO-E
or DX-E. Thus, a contract for a domestic energy construction program
will contain a DO-E-F3 or DX-E-F3 priority rating.
Sec. 217.32 Elements of a rated order.
Each rated order must include:
(a) The appropriate priority rating (e.g. DO-E or DX-E)
(b) A required delivery date or dates. The words ``immediately'' or
``as soon as possible'' do not constitute a delivery date. A
``requirements contract'', ``basic ordering agreement'', ``prime vendor
contract'', or similar procurement document bearing a priority rating
may contain no specific delivery date or dates and may provide for the
furnishing of items or service from time-to-time or within a stated
period against specific purchase orders, such as ``calls'',
``requisitions'', and ``delivery orders''. These purchase orders must
specify a required delivery date or dates and are to be considered as
rated as of the date of their receipt by the supplier and not as of the
date of the original procurement document;
(c) The written signature on a manually placed order, or the
digital signature or name on an electronically placed order, of an
individual authorized to sign rated orders for the
[[Page 41413]]
person placing the order. The signature or use of the name certifies
that the rated order is authorized under this part and that the
requirements of this part are being followed; and
(d) (1) A statement that reads in substance:
This is a rated order certified for national defense use, and
you are required to follow all the provisions of the Energy
Priorities and Allocations System regulation at 10 CFR part 217.
(2) If the rated order is placed in support of emergency
preparedness requirements and expedited action is necessary and
appropriate to meet these requirements, the following sentences should
be added following the statement set forth in paragraph (d)(1) of this
section:
This rated order is placed for the purpose of emergency
preparedness. It must be accepted or rejected within 2 days after
receipt of the order if (1) The order is issued in response to a
hazard that has occurred; or (2) If the order is issued to prepare
for an imminent hazard, as specified in EPAS Section 217.33(e), 10
CFR 217.33(e).
Sec. 217.33 Acceptance and rejection of rated orders.
(a) Mandatory acceptance. (1) Except as otherwise specified in this
section, a person shall accept every rated order received and must fill
such orders regardless of any other rated or unrated orders that have
been accepted.
(2) A person shall not discriminate against rated orders in any
manner such as by charging higher prices or by imposing different terms
and conditions than for comparable unrated orders.
(b) Mandatory rejection. Unless otherwise directed by the
Department of Energy for a rated order involving all forms of energy:
(1) A person shall not accept a rated order for delivery on a
specific date if unable to fill the order by that date. However, the
person must inform the customer of the earliest date on which delivery
can be made and offer to accept the order on the basis of that date.
Scheduling conflicts with previously accepted lower rated or unrated
orders are not sufficient reason for rejection under this section.
(2) A person shall not accept a DO-rated order for delivery on a
date which would interfere with delivery of any previously accepted DO-
or DX-rated orders. However, the person must offer to accept the order
based on the earliest delivery date otherwise possible.
(3) A person shall not accept a DX-rated order for delivery on a
date which would interfere with delivery of any previously accepted DX-
rated orders, but must offer to accept the order based on the earliest
delivery date otherwise possible.
(4) If a person is unable to fill all of the rated orders of equal
priority status received on the same day, the person must accept, based
upon the earliest delivery dates, only those orders which can be
filled, and reject the other orders. For example, a person must accept
order A requiring delivery on December 15 before accepting order B
requiring delivery on December 31. However, the person must offer to
accept the rejected orders based on the earliest delivery dates
otherwise possible.
(c) Optional rejection. Unless otherwise directed by the Department
of Energy for a rated order involving all forms of energy, rated orders
may be rejected in any of the following cases as long as a supplier
does not discriminate among customers:
(1) If the person placing the order is unwilling or unable to meet
regularly established terms of sale or payment;
(2) If the order is for an item not supplied or for a service not
capable of being performed;
(3) If the order is for an item or service produced, acquired, or
provided only for the supplier's own use for which no orders have been
filled for two years prior to the date of receipt of the rated order.
If, however, a supplier has sold some of these items or provided
similar services, the supplier is obligated to accept rated orders up
to that quantity or portion of production or service, whichever is
greater, sold or provided within the past two years;
(4) If the person placing the rated order, other than the U.S.
Government, makes the item or performs the service being ordered;
(5) If acceptance of a rated order or performance against a rated
order would violate any other regulation, official action, or order of
the Department of Energy, issued under the authority of the Defense
Production Act or another relevant statute.
(d) Customer notification requirements. (1) Except as provided in
this paragraph, a person must accept or reject a rated order in writing
or electronically within fifteen (15) working days after receipt of a
DO-rated order and within ten (10) working days after receipt of a DX-
rated order. If the order is rejected, the person must give reasons in
writing or electronically for the rejection.
(2) If a person has accepted a rated order and subsequently finds
that shipment or performance will be delayed, the person must notify
the customer immediately, give the reasons for the delay, and advise of
a new shipment or performance date. If notification is given verbally,
written or electronic confirmation must be provided within five (5)
working days.
(e) Exception for emergency preparedness conditions. If the rated
order is placed for the purpose of emergency preparedness, a person
must accept or reject a rated order and transmit the acceptance or
rejection in writing or in an electronic format within 2 days after
receipt of the order if:
(1) The order is issued in response to a hazard that has occurred;
or
(2) The order is issued to prepare for an imminent hazard.
Sec. 217.34 Preferential scheduling.
(a) A person must schedule operations, including the acquisition of
all needed production items or services, in a timely manner to satisfy
the delivery requirements of each rated order. Modifying production or
delivery schedules is necessary only when required delivery dates for
rated orders cannot otherwise be met.
(b) DO-rated orders must be given production preference over
unrated orders, if necessary to meet required delivery dates, even if
this requires the diversion of items being processed or ready for
delivery or services being performed against unrated orders. Similarly,
DX-rated orders must be given preference over DO-rated orders and
unrated orders. (Examples: If a person receives a DO-rated order with a
delivery date of June 3 and if meeting that date would mean delaying
production or delivery of an item for an unrated order, the unrated
order must be delayed. If a DX-rated order is received calling for
delivery on July 15 and a person has a DO-rated order requiring
delivery on June 2 and operations can be scheduled to meet both
deliveries, there is no need to alter production schedules to give any
additional preference to the DX-rated order.)
(c) Conflicting rated orders.
(1) If a person finds that delivery or performance against any
accepted rated orders conflicts with the delivery or performance
against other accepted rated orders of equal priority status, the
person shall give precedence to the conflicting orders in the sequence
in which they are to be delivered or performed (not to the receipt
dates). If the conflicting orders are scheduled to be delivered or
performed on the same day, the person shall give precedence to those
orders that have the earliest receipt dates.
(2) If a person is unable to resolve rated order delivery or
performance conflicts under this section, the person should promptly
seek special priorities
[[Page 41414]]
assistance as provided in Sec. Sec. 217.40 through 217.44. If the
person's customer objects to the rescheduling of delivery or
performance of a rated order, the customer should promptly seek special
priorities assistance as provided in Sec. Sec. 217.40 through 217.44.
For any rated order against which delivery or performance will be
delayed, the person must notify the customer as provided in Sec.
217.33.
(d) If a person is unable to purchase needed production items in
time to fill a rated order by its required delivery date, the person
must fill the rated order by using inventoried production items. A
person who uses inventoried items to fill a rated order may replace
those items with the use of a rated order as provided in Sec.
217.37(b).
Sec. 217.35 Extension of priority ratings.
(a) A person must use rated orders with suppliers to obtain items
or services needed to fill a rated order. The person must use the
priority rating indicated on the customer's rated order, except as
otherwise provided in this part or as directed by the Department of
Energy. For example, if a person is in receipt of a DO-E-F1 rated order
for an electric power sub-station, and needs to purchase a transformer
for its manufacture, that person must use a DO-E-F1 rated order to
obtain the needed transformer.
(b) The priority rating must be included on each successive order
placed to obtain items or services needed to fill a customer's rated
order. This continues from contractor to subcontractor to supplier
throughout the entire procurement chain.
Sec. 217.36 Changes or cancellations of priority ratings and rated
orders.
(a) The priority rating on a rated order may be changed or canceled
by:
(1) An official action of the Department of Energy; or
(2) Written notification from the person who placed the rated
order.
(b) If an unrated order is amended so as to make it a rated order,
or a DO rating is changed to a DX rating, the supplier must give the
appropriate preferential treatment to the order as of the date the
change is received by the supplier.
(c) An amendment to a rated order that significantly alters a
supplier's original production or delivery schedule shall constitute a
new rated order as of the date of its receipt. The supplier must accept
or reject the amended order according to the provisions of Sec.
217.33.
(d) The following amendments do not constitute a new rated order: a
change in shipping destination; a reduction in the total amount of the
order; an increase in the total amount of the order which has
negligible impact upon deliveries; a minor variation in size or design;
or a change which is agreed upon between the supplier and the customer.
(e) If a person no longer needs items or services to fill a rated
order, any rated orders placed with suppliers for the items or
services, or the priority rating on those orders, must be canceled.
(f) When a priority rating is added to an unrated order, or is
changed or canceled, all suppliers must be promptly notified in
writing.
Sec. 217.37 Use of rated orders.
(a) A person must use rated orders to obtain:
(1) Items which will be physically incorporated into other items to
fill rated orders, including that portion of such items normally
consumed or converted into scrap or by-products in the course of
processing;
(2) Containers or other packaging materials required to make
delivery of the finished items against rated orders;
(3) Services, other than contracts of employment, needed to fill
rated orders; and
(4) MRO needed to produce the finished items to fill rated orders.
(b) A person may use a rated order to replace inventoried items
(including finished items) if such items were used to fill rated
orders, as follows:
(1) The order must be placed within 90 days of the date of use of
the inventory.
(2) A DO rating and the program identification symbol indicated on
the customer's rated order must be used on the order. A DX rating may
not be used even if the inventory was used to fill a DX-rated order.
(3) If the priority ratings on rated orders from one customer or
several customers contain different program identification symbols, the
rated orders may be combined. In this case, the program identification
symbol ``H1'' must be used (i.e., DO-H1).
(c) A person may combine DX- and DO-rated orders from one customer
or several customers if the items or services covered by each level of
priority are identified separately and clearly. If different program
identification symbols are indicated on those rated orders of equal
priority, the person must use the program identification symbol ``H1''
(i.e., DO-H1 or DX-H1).
(d) Combining rated and unrated orders.
(1) A person may combine rated and unrated order quantities on one
purchase order provided that:
(i) The rated quantities are separately and clearly identified; and
(ii) The four elements of a rated order, as required by Sec.
217.32, are included on the order with the statement required in Sec.
217.32(d) modified to read in substance:
This purchase order contains rated order quantities certified
for national defense use, and you are required to follow all
applicable provisions of the Energy Priorities and Allocations
System regulations at 10 CFR part 217 only as it pertains to the
rated quantities.
(2) A supplier must accept or reject the rated portion of the
purchase order as provided in Sec. 217.33 and give preferential
treatment only to the rated quantities as required by this part. This
part may not be used to require preferential treatment for the unrated
portion of the order.
(3) Any supplier who believes that rated and unrated orders are
being combined in a manner contrary to the intent of this part or in a
fashion that causes undue or exceptional hardship may submit a request
for adjustment or exception under Sec. 217.80.
(e) A person may place a rated order for the minimum commercially
procurable quantity even if the quantity needed to fill a rated order
is less than that minimum. However, a person must combine rated orders
as provided in paragraph (c) of this section, if possible, to obtain
minimum procurable quantities.
(f) A person is not required to place a priority rating on an order
for less than $50,000, or one-half of the Simplified Acquisition
Threshold (as established in the Federal Acquisition Regulation (FAR)
(see FAR section 2.101) or in other authorized acquisition regulatory
or management systems) whichever amount is greater, provided that
delivery can be obtained in a timely fashion without the use of the
priority rating.
Sec. 217.38 Limitations on placing rated orders.
(a) General limitations.
(1) A person may not place a DO- or DX-rated order unless entitled
to do so under this part.
(2) Rated orders may not be used to obtain:
(i) Delivery on a date earlier than needed;
(ii) A greater quantity of the item or services than needed, except
to obtain a minimum procurable quantity. Separate rated orders may not
be placed solely for the purpose of obtaining minimum procurable
quantities on each order;
(iii) Items or services in advance of the receipt of a rated order,
except as
[[Page 41415]]
specifically authorized by the Department of Energy (see Sec.
217.41(c) for information on obtaining authorization for a priority
rating in advance of a rated order);
(iv) Items that are not needed to fill a rated order, except as
specifically authorized by the Department of Energy, or as otherwise
permitted by this part; or
(v) Any of the following items unless specific priority rating
authority has been obtained from the Department of Energy, a Delegate
Agency, or the Department of Commerce, as appropriate:
(A) Items for plant improvement, expansion, or construction, unless
they will be physically incorporated into a construction project
covered by a rated order; and
(B) Production or construction equipment or items to be used for
the manufacture of production equipment. [For information on requesting
priority rating authority, see Sec. 217.21.]
(vi) Any items related to the development of chemical or biological
warfare capabilities or the production of chemical or biological
weapons, unless such development or production has been authorized by
the President or the Secretary of Defense.
(b) Jurisdictional limitations. Unless authorized by the resource
agency with jurisdiction, the provisions of this part are not
applicable to the following resources:
(1) Food resources, food resource facilities, and the domestic
distribution of farm equipment and commercial fertilizer (Resource
agency with jurisdiction--Department of Agriculture);
(2) Health resources (Resource agency with jurisdiction--Department
of Health and Human Services);
(3) All forms of civil transportation (Resource agency with
jurisdiction--Department of Transportation);
(4) Water resources (Resource agency with jurisdiction--Department
of Defense/U.S. Army Corps of Engineers); and
(5) Communications services (Resource agency with jurisdiction--
National Communications System under E. O. 12472 of April 3, 1984).
Subpart D--Special Priorities Assistance
Sec. 217.40 General provisions.
(a) The six regulations that comprise the Federal Priorities and
Allocations System are designed to be largely self-executing. However,
from time-to-time production or delivery problems will arise. In this
event, a person should immediately contact the Office of Infrastructure
Security and Energy Restoration, for guidance or assistance (Contact
the Senior Policy Advisor for the Office of Electricity Delivery and
Energy Reliability, as listed in Sec. 217.93). If the problem(s)
cannot otherwise be resolved, special priorities assistance should be
sought from the Department of Energy through the Office of
Infrastructure Security and Energy Restoration (Contact the Senior
Policy Advisor for the Office of Electricity Delivery and Energy
Reliability, as listed in Sec. 217.93). If the Department of Energy is
unable to resolve the problem or to authorize the use of a priority
rating and believes additional assistance is warranted, the Department
of Energy may forward the request to another agency with resource
jurisdiction, as appropriate, for action. Special priorities assistance
is provided to alleviate problems that do arise.
(b) Special priorities assistance is available for any reason
consistent with this part. Generally, special priorities assistance is
provided to expedite deliveries, resolve delivery conflicts, place
rated orders, locate suppliers, or to verify information supplied by
customers and vendors. Special priorities assistance may also be used
to request rating authority for items that are not normally eligible
for priority treatment.
(c) A request for special priorities assistance or priority rating
authority must be submitted on Form DOE-XXX [OMB control number to be
inserted in the final rule] to the Senior Policy Advisor for the Office
of Electricity Delivery and Energy Reliability, as listed in Sec.
217.93. Form DOE-999 may be obtained from the Department of Energy or a
Delegate Agency. A sample Form DOE-999 is attached at Appendix I to
this part.
Sec. 217.41 Requests for priority rating authority.
(a) If a rated order is likely to be delayed because a person is
unable to obtain items or services not normally rated under this part,
the person may request the authority to use a priority rating in
ordering the needed items or services.
(b) Rating authority for production or construction equipment.
(1) A request for priority rating authority for production or
construction equipment must be submitted to the U.S. Department of
Commerce on Form BIS-999.
(2) When the use of a priority rating is authorized for the
procurement of production or construction equipment, a rated order may
be used either to purchase or to lease such equipment. However, in the
latter case, the equipment may be leased only from a person engaged in
the business of leasing such equipment or from a person willing to
lease rather than sell.
(c) Rating authority in advance of a rated prime contract. (1) In
certain cases and upon specific request, the Department of Energy, in
order to promote the national defense, may authorize a person to place
a priority rating on an order to a supplier in advance of the issuance
of a rated prime contract. In these instances, the person requesting
advance rating authority must obtain sponsorship of the request from
the Department of Energy or the appropriate Delegate Agency. The person
shall also assume any business risk associated with the placing of
rated orders in the event the rated prime contract is not issued.
(2) The person must state the following in the request:
It is understood that the authorization of a priority rating in
advance of our receiving a rated prime contract from the Department
of Energy and our use of that priority rating with our suppliers in
no way commits the Department of Energy or any other government
agency to enter into a contract or order or to expend funds.
Further, we understand that the Federal Government shall not be
liable for any cancellation charges, termination costs, or other
damages that may accrue if a rated prime contract is not eventually
placed and, as a result, we must subsequently cancel orders placed
with the use of the priority rating authorized as a result of this
request.
(3) In reviewing requests for rating authority in advance of a
rated prime contract, the Department of Energy will consider, among
other things, the following criteria:
(i) The probability that the prime contract will be awarded;
(ii) The impact of the resulting rated orders on suppliers and on
other authorized programs;
(iii) Whether the contractor is the sole source;
(iv) Whether the item being produced has a long lead time;
(v) The time period for which the rating is being requested.
(4) The Department of Energy may require periodic reports on the
use of the rating authority granted under paragraph (c) of this
section.
(5) If a rated prime contract is not issued, the person shall
promptly notify all suppliers who have received rated orders pursuant
to the advanced rating authority that the priority rating on those
orders is cancelled.
[[Page 41416]]
Sec. 217.42 Examples of assistance.
(a) While special priorities assistance may be provided for any
reason in support of this part, it is usually provided in situations
where:
(1) A person is experiencing difficulty in obtaining delivery
against a rated order by the required delivery date; or
(2) A person cannot locate a supplier for an item or service needed
to fill a rated order.
(b) Other examples of special priorities assistance include:
(1) Ensuring that rated orders receive preferential treatment by
suppliers;
(2) Resolving production or delivery conflicts between various
rated orders;
(3) Assisting in placing rated orders with suppliers;
(4) Verifying the urgency of rated orders; and
(5) Determining the validity of rated orders.
Sec. 217.43 Criteria for assistance.
Requests for special priorities assistance should be timely, i.e.,
the request has been submitted promptly and enough time exists for the
Department of Energy, the Delegate Agency, or the Department of
Commerce for industrial resources to effect a meaningful resolution to
the problem, and must establish that:
(a) There is an urgent need for the item; and
(b) The applicant has made a reasonable effort to resolve the
problem.
Sec. 217.44 Instances where assistance may not be provided.
Special priorities assistance is provided at the discretion of the
Department of Energy, the Delegate Agencies, or the Department of
Commerce when it is determined that such assistance is warranted to
meet the objectives of this part. Examples where assistance may not be
provided include situations when a person is attempting to:
(a) Secure a price advantage;
(b) Obtain delivery prior to the time required to fill a rated
order;
(c) Gain competitive advantage;
(d) Disrupt an industry apportionment program in a manner designed
to provide a person with an unwarranted share of scarce items; or
(e) Overcome a supplier's regularly established terms of sale or
conditions of doing business.
Subpart E--Allocation Actions
Sec. 217.50 Policy.
(a) It is the policy of the Federal Government that the allocations
authority under title I of the Defense Production Act may:
(1) Only be used when there is insufficient supply of a material,
service, or facility to satisfy national defense supply requirements
through the use of the priorities authority or when the use of the
priorities authority would cause a severe and prolonged disruption in
the supply of materials, services, or facilities available to support
normal U.S. economic activities; and
(2) Not be used to ration materials or services at the retail
level.
(b) Allocation orders, when used, will be distributed equitably
among the suppliers of the materials, services, or facilities being
allocated and not require any person to relinquish a disproportionate
share of the civilian market.
Sec. 217.51 General procedures.
When the Department of Energy plans to execute its allocations
authority to address a supply problem within its resource jurisdiction,
the Department shall develop a plan that includes the following
information:
(a) A copy of the written determination made, in accordance with
section 202 of E. O. 12919, that the program or programs that would be
supported by the allocation action are necessary or appropriate to
promote the national defense;
(b) A detailed description of the situation to include any unusual
events or circumstances that have created the requirement for an
allocation action;
(c) A statement of the specific objective(s) of the allocation
action;
(d) A list of the materials, services, or facilities to be
allocated;
(e) A list of the sources of the materials, services, or facilities
that will be subject to the allocation action;
(f) A detailed description of the provisions that will be included
in the allocation orders, including the type(s) of allocation orders,
the percentages or quantity of capacity or output to be allocated for
each purpose, and the duration of the allocation action (i.e.,
anticipated start and end dates);
(g) An evaluation of the impact of the proposed allocation action
on the civilian market; and
(h) Proposed actions, if any, to mitigate disruptions to civilian
market operations.
Sec. 217.52 Controlling the general distribution of a material in the
civilian market.
No allocation action by the Department of Energy may be used to
control the general distribution of a material in the civilian market,
unless the Secretary of the Department of Energy has:
(a) Made a written finding that:
(1) Such material is a scarce and critical material essential to
the national defense, and
(2) The requirements of the national defense for such material
cannot otherwise be met without creating a significant dislocation of
the normal distribution of such material in the civilian market to such
a degree as to create appreciable hardship;
(b) Submitted the finding for the President's approval through the
Assistant to the President for National Security Affairs; and
(c) The President has approved the finding.
Sec. 217.53 Types of allocation orders.
There are three types of allocation orders available for
communicating allocation actions. These are:
(a) Set-aside: an official action that requires a person to reserve
materials, services, or facilities capacity in anticipation of the
receipt of rated orders;
(b) Directive: an official action that requires a person to take or
refrain from taking certain actions in accordance with its provisions.
For example, a directive can require a person to: Stop or reduce
production of an item; prohibit the use of selected materials,
services, or facilities; or divert the use of materials, services, or
facilities from one purpose to another; and
(c) Allotment: an official action that specifies the maximum
quantity of a material, service, or facility authorized for a specific
use.
Sec. 217.54 Elements of an allocation order.
Each allocation order must include:
(a) A detailed description of the required allocation action(s);
(b) Specific start and end calendar dates for each required
allocation action;
(c) The written signature on a manually placed order, or the
digital signature or name on an electronically placed order, of the
Secretary of Energy. The signature or use of the name certifies that
the order is authorized under this part and that the requirements of
this part are being followed;
(d) A statement that reads in substance: ``This is an allocation
order certified for national defense use. [Insert the legal name of the
person receiving the order] is required to comply with this order, in
accordance with the provisions of the Energy Priorities and Allocations
System regulation (10 CFR Part 217), which is part of the Federal
Priorities and Allocations System''; and
[[Page 41417]]
(e) A current copy of the Energy Priorities and Allocations System
regulation (10 CFR part 217).
Sec. 217.55 Mandatory acceptance of an allocation order.
(a) Except as otherwise specified in this section, a person shall
accept and comply with every allocation order received.
(b) A person shall not discriminate against an allocation order in
any manner such as by charging higher prices for materials, services,
or facilities covered by the order or by imposing terms and conditions
for contracts and orders involving allocated materials, services, or
facilities that differ from the person's terms and conditions for
contracts and orders for the materials, services, or facilities prior
to receiving the allocation order.
(c) If a person is unable to comply fully with the required
action(s) specified in an allocation order, the person must notify the
Department of Energy immediately, explain the extent to which
compliance is possible, and give the reasons why full compliance is not
possible. If notification is given verbally, written or electronic
confirmation must be provided within five (5) working days. Such
notification does not release the person from complying with the order
to the fullest extent possible, until the person is notified by the
Department of Energy that the order has been changed or cancelled.
Sec. 217.56 Changes or cancellations of an allocation order.
An allocation order may be changed or canceled by an official
action of the Department of Energy.
Subpart F--Official Actions
Sec. 217.60 General provisions.
(a) The Department of Energy may take specific official actions to
implement the provisions of this part.
(b) These official actions include Rating Authorizations,
Directives, and Memoranda of Understanding.
Sec. 217.61 Rating Authorizations.
(a) A Rating Authorization is an official action granting specific
priority rating authority that:
(1) Permits a person to place a priority rating on an order for an
item or service not normally ratable under this part; or
(2) Authorizes a person to modify a priority rating on a specific
order or series of contracts or orders.
(b) To request priority rating authority, see Sec. 217.41.
Sec. 217.62 Directives.
(a) A Directive is an official action that requires a person to
take or refrain from taking certain actions in accordance with its
provisions.
(b) A person must comply with each Directive issued. However, a
person may not use or extend a Directive to obtain any items from a
supplier, unless expressly authorized to do so in the Directive.
(c) A Priorities Directive takes precedence over all DX-rated
orders, DO-rated orders, and unrated orders previously or subsequently
received, unless a contrary instruction appears in the Directive.
(d) An Allocations Directive takes precedence over all Priorities
Directives, DX-rated orders, DO-rated orders, and unrated orders
previously or subsequently received, unless a contrary instruction
appears in the Directive.
Sec. 217.63 Letters and Memoranda of Understanding.
(a) A Letter or Memorandum of Understanding is an official action
that may be issued in resolving special priorities assistance cases to
reflect an agreement reached by all parties (the Department of Energy,
the Department of Commerce (if applicable), a Delegate Agency (if
applicable), the supplier, and the customer).
(b) A Letter or Memorandum of Understanding is not used to alter
scheduling between rated orders, to authorize the use of priority
ratings, to impose restrictions under this part. Rather, Letters or
Memoranda of Understanding are used to confirm production or shipping
schedules that do not require modifications to other rated orders.
Subpart G--Compliance
Sec. 217.70 General provisions.
(a) The Department of Energy may take specific official actions for
any reason necessary or appropriate to the enforcement or the
administration of the Defense Production Act and other applicable
statutes, this part, or an official action. Such actions include
Administrative Subpoenas, Demands for Information, and Inspection
Authorizations.
(b) Any person who places or receives a rated order or an
allocation order must comply with the provisions of this part.
(c) Willful violation of the provisions of title I or section 705
of the Defense Production Act and other applicable statutes, this part,
or an official action of the Department of Energy is a criminal act,
punishable as provided in the Defense Production Act and other
applicable statutes, and as set forth in Sec. 217.74 of this part.
Sec. 217.71 Audits and investigations.
(a) Audits and investigations are official examinations of books,
records, documents, other writings and information to ensure that the
provisions of the Defense Production Act and other applicable statutes,
this part, and official actions have been properly followed. An audit
or investigation may also include interviews and a systems evaluation
to detect problems or failures in the implementation of this part.
(b) When undertaking an audit or investigation, the Department of
Energy shall:
(1) Define the scope and purpose in the official action given to
the person under investigation, and
(2) Have ascertained that the information sought or other adequate
and authoritative data are not available from any Federal or other
responsible agency.
(c) In administering this part, the Department of Energy may issue
the following documents that constitute official actions:
(1) Administrative Subpoenas. An Administrative Subpoena requires a
person to appear as a witness before an official designated by the
Department of Energy to testify under oath on matters of which that
person has knowledge relating to the enforcement or the administration
of the Defense Production Act and other applicable statutes, this part,
or official actions. An Administrative Subpoena may also require the
production of books, papers, records, documents and physical objects or
property.
(2) Demands for Information. A Demand for Information requires a
person to furnish to a duly authorized representative of the Department
of Energy any information necessary or appropriate to the enforcement
or the administration of the Defense Production Act and other
applicable statutes, this part, or official actions.
(3) Inspection Authorizations. An Inspection Authorization requires
a person to permit a duly authorized representative of the Department
of Energy to interview the person's employees or agents, to inspect
books, records, documents, other writings, and information, including
electronically-stored information, in the person's possession or
control at the place where that person usually keeps them or otherwise,
and to inspect a person's property when such interviews and inspections
are necessary or appropriate to the enforcement or the administration
[[Page 41418]]
of the Defense Production Act and related statutes, this part, or
official actions.
(d) The production of books, records, documents, other writings,
and information will not be required at any place other than where they
are usually kept if, prior to the return date specified in the
Administrative Subpoena or Demand for Information, a duly authorized
official of the Department of Energy is furnished with copies of such
material that are certified under oath to be true copies. As an
alternative, a person may enter into a stipulation with a duly
authorized official of Department of Energy as to the content of the
material.
(e) An Administrative Subpoena, Demand for Information, or
Inspection Authorization, shall include the name, title, or official
position of the person to be served, the evidence sought to be adduced,
and its general relevance to the scope and purpose of the audit,
investigation, or other inquiry. If employees or agents are to be
interviewed; if books, records, documents, other writings, or
information are to be produced; or if property is to be inspected; the
Administrative Subpoena, Demand for Information, or Inspection
Authorization will describe them with particularity.
(f) Service of documents shall be made in the following manner:
(1) Service of a Demand for Information or Inspection Authorization
shall be made personally, or by Certified Mail-Return Receipt Requested
at the person's last known address. Service of an Administrative
Subpoena shall be made personally. Personal service may also be made by
leaving a copy of the document with someone at least 18 years old at
the person's last known dwelling or place of business.
(2) Service upon other than an individual may be made by serving a
partner, corporate officer, or a managing or general agent authorized
by appointment or by law to accept service of process. If an agent is
served, a copy of the document shall be mailed to the person named in
the document.
(3) Any individual 18 years of age or over may serve an
Administrative Subpoena, Demand for Information, or Inspection
Authorization. When personal service is made, the individual making the
service shall prepare an affidavit as to the manner in which service
was made and the identity of the person served, and return the
affidavit, and in the case of subpoenas, the original document, to the
issuing officer. In case of failure to make service, the reasons for
the failure shall be stated on the original document.
Sec. 217.72 Compulsory process.
(a) If a person refuses to permit a duly authorized representative
of the Department of Energy to have access to any premises or source of
information necessary to the administration or the enforcement of the
Defense Production Act and other applicable statutes, this part, or
official actions, the Department of Energy representative may seek
compulsory process. Compulsory process means the institution of
appropriate legal action, including ex parte application for an
inspection warrant or its equivalent, in any forum of appropriate
jurisdiction.
(b) Compulsory process may be sought in advance of an audit,
investigation, or other inquiry, if, in the judgment of the Senior
Policy Advisor for the Office of Electricity Delivery and Energy
Reliability, as listed in Sec. 217.93, 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.
Sec. 217.73 Notification of failure to comply.
(a) At the conclusion of an audit, investigation, or other inquiry,
or at any other time, the Department of Energy may inform the person in
writing where compliance with the requirements of the Defense
Production Act and other applicable statutes, this part, or an official
action were not met.
(b) In cases where the Department of Energy determines that failure
to comply with the provisions of the Defense Production Act and other
applicable statutes, this part, or an official action was inadvertent,
the person may be informed in writing of the particulars involved and
the corrective action to be taken. Failure to take corrective action
may then be construed as a willful violation of the Defense Production
Act and other applicable statutes, this part, or an official action.
Sec. 217.74 Violations, penalties, and remedies.
(a) Willful violation of the provisions of title I or sections 705
or 707 of the Defense Production Act, the priorities provisions of the
Selective Service Act and related statutes (when applicable), this
part, or an official action, is a crime and upon conviction, a person
may be punished by fine or imprisonment, or both. The maximum penalties
provided by the Defense Production Act are a $10,000 fine, or one year
in prison, or both. The maximum penalties provided by the Selective
Service Act and related statutes are a $50,000 fine, or three years in
prison, or both.
(b) The Government may also seek an injunction from a court of
appropriate jurisdiction to prohibit the continuance of any violation
of, or to enforce compliance with, the Defense Production Act, this
part, or an official action.
(c) In order to secure the effective enforcement of the Defense
Production Act and other applicable statutes, this part, and official
actions, the following are prohibited:
(1) No person may solicit, influence or permit another person to
perform any act prohibited by, or to omit any act required by, the
Defense Production Act and other applicable statutes, this part, or an
official action.
(2) No person may conspire or act in concert with any other person
to perform any act prohibited by, or to omit any act required by, the
Defense Production Act and other applicable statutes, this part, or an
official action.
(3) No person shall deliver any item if the person knows or has
reason to believe that the item will be accepted, redelivered, held, or
used in violation of the Defense Production Act and other applicable
statutes, this part, or an official action. In such instances, the
person must immediately notify the Department of Energy that, in
accordance with this provision, delivery has not been made.
Sec. 217.75 Compliance conflicts.
If compliance with any provision of the Defense Production Act and
other applicable statutes, this part, or an official action would
prevent a person from filling a rated order or from complying with
another provision of the Defense Production Act and other applicable
statutes, this part, or an official action, the person must immediately
notify the Department of Energy for resolution of the conflict.
Subpart H--Adjustments, Exceptions, and Appeals
Sec. 217.80 Adjustments or exceptions.
(a) A person may submit a request to the Senior Policy Advisor for
the Office of Electricity Delivery and Energy Reliability, as listed in
section 217.93, for an adjustment or exception on the ground that:
(1) A provision of this part or an official action results in an
undue or exceptional hardship on that person not suffered generally by
others in similar situations and circumstances; or
(2) The consequences of following a provision of this part or an
official
[[Page 41419]]
action is contrary to the intent of the Defense Production Act and
other applicable statutes, or this part.
(b) Each request for adjustment or exception must be in writing and
contain a complete statement of all the facts and circumstances related
to the provision of this part or official action from which adjustment
is sought and a full and precise statement of the reasons why relief
should be provided.
(c) The submission of a request for adjustment or exception shall
not relieve any person from the obligation of complying with the
provision of this part or official action in question while the request
is being considered unless such interim relief is granted in writing by
the Senior Policy Advisor for the Office of Electricity Delivery and
Energy Reliability, as listed in Sec. 217.93.
(d) A decision of the Senior Policy Advisor for the Office of
Electricity Delivery and Energy Reliability, as listed in Sec. 217.93,
under this section may be appealed to the Office of Infrastructure
Security and Energy Restoration (For information on the appeal
procedure, see Sec. 217.81.)
Sec. 217.81 Appeals.
(a) Any person who has had a request for adjustment or exception
denied by the Senior Policy Advisor for the Office of Electricity
Delivery and Energy Reliability, as listed in Sec. 217.93, under Sec.
217.80, may appeal to the Office of Infrastructure Security and Energy
Restoration who shall review and reconsider the denial.
(b) (1) Except as provided in paragraph (b)(2) of this section, an
appeal must be received by the Office of Infrastructure Security and
Energy Restoration no later than 45 days after receipt of a written
notice of denial from the Senior Policy Advisor for the Office of
Electricity Delivery and Energy Reliability, as listed in Sec. 217.93.
After this 45-day period, an appeal may be accepted at the discretion
of the Office of Infrastructure Security and Energy Restoration for
good cause shown.
(2) For requests for adjustment or exception involving rated orders
placed for the purpose of emergency preparedness (see Sec. 217.14(d)),
an appeal must be received by the Office of Infrastructure Security and
Energy Restoration, no later than 15 days after receipt of a written
notice of denial from the Senior Policy Advisor for the Office of
Electricity Delivery and Energy Reliability, as listed in Sec. 217.93.
Contract performance under the order shall not be stayed pending
resolution of the appeal.
(c) Each appeal must be in writing and contain a complete statement
of all the facts and circumstances related to the action appealed from
and a full and precise statement of the reasons the decision should be
modified or reversed.
(d) In addition to the written materials submitted in support of an
appeal, an appellant may request, in writing, an opportunity for an
informal hearing. This request may be granted or denied at the
discretion of the Office of Infrastructure Security and Energy
Restoration.
(e) When a hearing is granted, the Office of Infrastructure
Security and Energy Restoration may designate an employee to conduct
the hearing and to prepare a report. The hearing officer shall
determine all procedural questions and impose such time or other
limitations deemed reasonable. In the event that the hearing officer
decides that a printed transcript is necessary, all expenses shall be
borne by the appellant.
(f) When determining an appeal, the Office of Infrastructure
Security and Energy Restoration may consider all information submitted
during the appeal as well as any recommendations, reports, or other
relevant information and documents available to the Department of
Energy or consult with any other persons or groups.
(g) The submission of an appeal under this section shall not
relieve any person from the obligation of complying with the provision
of this part or official action in question while the appeal is being
considered unless such relief is granted in writing by the Office of
Infrastructure Security and Energy Restoration.
(h) The decision of the Office of Infrastructure Security and
Energy Restoration shall be made within five (5) days after receipt of
the appeal, or within one (1) day for appeals pertaining to emergency
preparedness and shall be the final administrative action. It shall be
issued to the appellant in writing with a statement of the reasons for
the decision.
Subpart I--Miscellaneous Provisions
Sec. 217.90 Protection against claims.
A person shall not be held liable for damages or penalties for any
act or failure to act resulting directly or indirectly from compliance
with any provision of this part, or an official action, notwithstanding
that such provision or action shall subsequently be declared invalid by
judicial or other competent authority.
Sec. 217.91 Records and reports.
(a) Persons are required to make and preserve for at least three
years, accurate and complete records of any transaction covered by this
part or an official action.
(b) Records must be maintained in sufficient detail to permit the
determination, upon examination, of whether each transaction complies
with the provisions of this part or any official action. However, this
part does not specify any particular method or system to be used.
(c) Records required to be maintained by this part must be made
available for examination on demand by duly authorized representatives
of the Department of Energy as provided in Sec. 217.71.
(d) In addition, persons must develop, maintain, and submit any
other records and reports to the Department of Energy that may be
required for the administration of the Defense Production Act and other
applicable statutes, and this part.
(e) Section 705(d) of the Defense Production Act, as implemented by
E.O. 12919, provides that information obtained under this section which
the Secretary deems confidential, or with reference to which a request
for confidential treatment is made by the person furnishing such
information, shall not be published or disclosed unless the Secretary
determines that the withholding of this information is contrary to the
interest of the national defense. Information required to be submitted
to the Department of Energy in connection with the enforcement or
administration of the Defense Production Act, this part, or an official
action, is deemed to be confidential under section 705(d) of the
Defense Production Act and shall be handled in accordance with
applicable Federal law.
Sec. 217.92 Applicability of this part and official actions.
(a) This part and all official actions, unless specifically stated
otherwise, apply to transactions in any state, territory, or possession
of the United States and the District of Columbia.
(b) This part and all official actions apply not only to deliveries
to other persons but also include deliveries to affiliates and
subsidiaries of a person and deliveries from one branch, division, or
section of a single entity to another branch, division, or section
under common ownership or control.
(c) This part and its schedules shall not be construed to affect
any administrative actions taken by the Department of Energy, or any
outstanding contracts or orders placed pursuant to any of the
regulations,
[[Page 41420]]
orders, schedules or delegations of authority previously issued by the
Department of Energy pursuant to authority granted to the President in
the Defense Production Act. Such actions, contracts, or orders shall
continue in full force and effect under this part unless modified or
terminated by proper authority.
Sec. 217.93 Communications.
All communications concerning this part, including requests for
copies of the part and explanatory information, requests for guidance
or clarification, and requests for adjustment or exception shall be
addressed to the Senior Policy Advisor for the Office of Electricity
Delivery and Energy Reliability, Office of Infrastructure Security and
Energy Restoration, U.S. Department of Energy, 1000 Independence Ave.,
SW., Washington, DC 20585; (202) 536-0379 ([email protected]).
Appendix I to Part 217--Sample Form DOE-XXX
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[FR Doc. 2010-17289 Filed 7-15-10; 8:45 am]
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