PART 700-Defense Priorities and Allocations System

SUBCHAPTER A—NATIONAL SECURITY INDUSTRIAL BASE
REGULATIONS
700.55 Assistance programs with Canada and
other nations.

PART 700—DEFENSE PRIORITIES
AND ALLOCATIONS SYSTEM

Subpart I—Official Actions
Subpart A—Purpose
Sec.
700.1

Purpose of this regulation.

700.60
700.61
700.62
700.63

General provisions.
Rating Authorizations.
Directives.
Letters of Understanding.

700.70
700.71
700.72
700.73
700.74
700.75

General provisions.
Audits and investigations.
Compulsory process.
Notification of failure to comply.
Violations, penalties, and remedies.
Compliance conflicts.

Subpart B—Overview

Subpart J—Compliance

700.2 Introduction.
700.3 Priority ratings and rated orders.
700.4 Priorities and allocations in a national emergency.
700.5 Special priorities assistance.
700.6 Official actions.
700.7 Compliance.

Subpart K—Adjustments, Exceptions, and
Appeals

Subpart C—Definitions
700.8

Definitions.

700.80
700.81

Subpart D—Industrial Priorities

Subpart L—Miscellaneous Provisions

700.10 Delegation of authority.
700.11 Priority ratings.
700.12 Elements of a rated order.
700.13 Acceptance and rejection of rated orders.
700.14 Preferential scheduling.
700.15 Extension of priority ratings.
700.16 Changes or cancellations of priority
ratings and rated orders.
700.17 Use of rated orders.
700.18 Limitations on placing rated orders.

700.90 Protection against claims.
700.91 Records and reports.
700.92 Applicability of this regulation and
official actions.
700.93 Communications.
SCHEDULE I TO PART 700—APPROVED PROGRAMS AND DELEGATE AGENCIES
APPENDIX I TO PART 700—FORM BIS–999–REQUEST FOR SPECIAL PRIORITIES ASSISTANCE

Subpart E—Industrial Priorities for Energy
Programs

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

700.20 Use of priority ratings.
700.21 Application for priority rating authority.

Subpart F—National emergency
Preparedness and Critical Items
700.30 Priorities and allocations in a national emergency.
700.31 Metalworking machines.

SOURCE: 49 FR 30414, July 30, 1984, unless
otherwise noted. Redesignated at 54 FR 601,
Jan. 9, 1989.

Subpart G [Reserved]
Subpart H—Special Priorities Assistance

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Adjustments or exceptions.
Appeals.

700.50 General provisions.
700.51 Requests for priority rating authority.
700.52 Examples of assistance.
700.53 Criteria for assistance.
700.54 Instances where assistance may not
be provided.

Subpart A—Purpose
§ 700.1 Purpose of this regulation.
(a) Title I of the Defense Production
Act of 1950, as amended (50 U.S.C. App.
2061, et seq.) (Defense Production Act),

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§ 700.2

15 CFR Ch. VII (1–1–09 Edition)

authorizes the President: to require the
priority performance of contracts and
orders necessary or appropriate to promote the national defense over other
contracts or orders; to allocate materials, services, and facilities as necessary or appropriate to promote the
national defense; and to require the allocation of, or the priority performance
under contracts or orders relating to,
supplies of materials, equipment, and
services in order to assure domestic energy supplies for national defense
needs.
(b) Section 18 of the Selective Service
Act of 1948 (50 U.S.C. app. 468) (Selective Service Act) authorizes the President to place an order with a supplier
for any articles or materials required
for the exclusive use of the U.S. armed
forces whenever the President determines that in the interest of national
security, prompt delivery of the articles and materials is required. The supplier must give precedence to the order
so as to deliver the articles or materials in a required time period. 10
U.S.C. 2538, and 50 U.S.C. 82, provide
similar authority specifically for Department of Defense procurement, but
only in time of war or when war is imminent.
(c) Section 602(b) of the Robert T.
Stafford Disaster Relief and Emergency Assistance Act (42 U.S.C.
5195a(b)) provides that the terms ‘‘national defense’’ and ‘‘defense’’ as used
in the Defense Production Act includes
‘‘emergency preparedness activities’’
conducted pursuant to Title VI of the
Stafford Act. The definition of ‘‘national defense’’ in section 702(14) of the
Defense Production Act provides that
this term includes ‘‘emergency preparedness activities’’ conducted pursuant to Title VI of the Stafford Act and
‘‘critical infrastructure protection and
restoration.’’
(d) The Defense Priorities and Allocations System (DPAS) regulation implements the priorities and allocations
authority of the Defense Production
Act and as this authority pertains to
Title VI of the Stafford Act, and the
priorities authority of the Selective
Service Act and related statutes, all
with respect to industrial resources.
The DPAS ensures the timely availability of industrial resources for ap-

proved programs and provides an operating system to support rapid industrial response to a national emergency.
(e) To aid in understanding and using
the DPAS, an overview of its major
provisions is incorporated into this
regulation as subpart B—Overview. The
full text of the DPAS is found in subparts D through L.
[49 FR 30414, July 30, 1984. Redesignated at 54
FR 601, Jan. 9, 1989, as amended at 63 FR
31921, June 11, 1998; 71 FR 39527, July 13, 2006]

Subpart B—Overview
§ 700.2

Introduction.

(a) Certain national defense and energy programs (including emergency
preparedness activities) are approved
for priorities and allocations support.
For example, military aircraft production, ammunition, and certain programs which maximize domestic energy supplies are ‘‘approved programs.’’
A complete list of currently approved
programs is provided at Schedule I to
this part.
(b) The Department of Commerce administers the DPAS to ensure the
timely delivery of industrial items to
meet approved program requirements.
(c) Commerce has delegated authorities to place priority ratings on contracts or orders necessary or appropriate to promote the national defense
to the government agencies that issue
such contracts or orders. Schedule I includes a list of agencies delegated this
authority.
[49 FR 30414, July 30, 1984. Redesignated at 54
FR 601, Jan. 9, 1989, as amended at 63 FR
31921, June 11, 1998; 71 FR 39527, July 13, 2006]

§ 700.3 Priority ratings and rated orders.
(a) Rated orders are identified by a
priority rating consisting of the rating—either DX or DO—and a program
identification symbol. Rated orders
take preference over all unrated orders
as necessary to meet required delivery
dates. Among rated orders, DX rated
orders take preference over DO rated
orders. Program identification symbols

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Bureau of Industry and Security, Commerce

§ 700.7

indicate which approved program is involved with the rated order. For example, A1 identifies defense aircraft programs and A7 signifies defense electronic programs. The program identification symbols, in themselves, do not
connote any priority.
(b) Persons receiving rated orders
must give them preferential treatment
as required by this regulation. This
means a person must accept and fill a
rated order for items that the person
normally supplies. The existence of
previously accepted unrated or lower
rated orders is not sufficient reason for
rejecting a rated order. Persons are required to reschedule unrated orders if
they conflict with performance against
a rated order. Similarly, persons must
reschedule DO rated orders if they conflict with performance against a DX
rated order.
(c) All rated orders must be scheduled to the extent possible to ensure
delivery by the required delivery date.
(d) Persons who receive rated orders
must in turn place rated orders with
their suppliers for the items they need
to fill the orders. This provision ensures that suppliers will give priority
treatment to rated orders from contractor to subcontractor to suppliers
throughout the procurement chain.
(e) Persons may place a priority rating on orders only when they are in receipt of a rated order, have been explicitly authorized to do so by the Department of Commerce or a Delegate Agency, or are otherwise permitted to do so
by this regulation.

emergency official actions and the allocation of critical and scarce materials and facilities.

[49 FR 30414, July 30, 1984. Redesignated at 54
FR 601, Jan. 9, 1989, as amended at 63 FR
31921, June 11, 1998]

§ 700.7

[63 FR 31921, June 11, 1998]

§ 700.5

Special priorities assistance.

(a) The DPAS is designed to be largely self-executing. However, from timeto-time production or delivery problems will arise. In this event, special
priorities assistance is available from
Commerce and from the Delegate
Agencies.
(b) Special priorities assistance is
available for any reason consistent
with this regulation. 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 not automatically ratable.
§ 700.6

Official actions.

When necessary, Commerce takes
specific official actions to implement
or enforce the provisions of this regulation and to provide special priorities
assistance. Such actions may include
the issuance of: Rating Authorizations,
Directives, Letters of Understanding,
Set-asides, and compliance documents
(Administrative Subpoenas, Demands
for Information, and Inspection Authorizations).
Compliance.

(a) Compliance with the provisions of
this regulation and official actions is
required by the Defense Production Act
and the Selective Service Act and related statutes. Violators are subject to
criminal penalties.
(b) Any person who places or receives
a rated order should be thoroughly familiar with, and must comply with, the
provisions of this regulation.

§ 700.4 Priorities and allocations in a
national emergency.
(a) In the event of a national emergency, special rules may be established
as needed to supplement this part, thus
ensuring rapid industrial response and
the timely availability of critical industrial items and facilities to meet
the urgent national defense requirements, including domestic emergency
preparedness requirements, of approved
programs.
(b) The special rules established in
response to the emergency may include
provisions for the taking of certain

[49 FR 30414, July 30, 1984. Redesignated at 54
FR 601, Jan. 9, 1989, as amended at 63 FR
31921, June 11, 1998]

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§ 700.8

15 CFR Ch. VII (1–1–09 Edition)
wear and tear, damage, or failure of
parts.
(c) Operating supplies are any items
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.
(d) 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.
Official action. An action taken by
Commerce under the authority of the
Defense Production Act, the Selective
Service Act and related statutes, and
this regulation. Such actions include
the issuance of Set-asides, Rating Authorizations, Directives, Letters of Understanding, Demands for Information,
Inspection Authorizations, and Administrative Subpoenas.
Person—any individual, corporation,
partnership, association, or any other
organized group of persons, or legal
successor or representative thereof; or
any authorized State or local government or agency thereof; and for purposes of administration of this part, includes the United States Government
and any authorized foreign government
or agency thereof, delegated authority
as provided in this part.
Production equipment. Any item of
capital equipment used in producing
materials or furnishing services that
has a unit acquisition cost of $2,500 or
more, an anticipated service life in excess of one year, and the potential for
maintaining its integrity as a capital
item.
Rated order. A prime contract, a subcontract, or a purchase order in support of an approved program issued in
accordance with the provisions of this
regulation.

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Subpart C—Definitions
§ 700.8 Definitions.
In addition to the definitions provided in Section 702 of the Defense Production Act (excepting the definition
of ‘‘industrial resources’’) and Section
602(a) of the Stafford Act, the following
definitions pertain to all sections of
this part:
Approved program. A program determined as necessary or appropriate for
priorities and allocations support to
promote the national defense by the
Secretary of Defense, the Secretary of
Energy, or the Secretary of Homeland
Security, under the authority of the
Defense Production Act, the Stafford
Act, and Executive Order 12919, or the
Selective Service Act and related statutes and Executive Order 12742.
Construction. 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.
Delegate Agency. A government agency authorized by delegation from the
Department of Commerce to place priority ratings on contracts or orders
needed to support approved programs.
Defense Production Act. the Defense
Production Act of 1950, as amended (50
U.S.C. App. 2061, et seq.).
Industrial resources—all materials,
services, and facilities, including construction materials, the authority for
which has not been delegated to other
agencies under Executive Order 12919.
This term also includes the term
‘‘item’’ as defined and used in this part.
Item. 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 (MRO):
(a) Maintenance is the upkeep necessary to continue any plant, facility,
or equipment in working condition.
(b) Repair is the restoration of any
plant, facility, or equipment to working condition when it has been rendered unsafe or unfit for service by

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Bureau of Industry and Security, Commerce
Selective Service Act and related statutes—Section 18 of the Selective Service Act of 1948 (50 U.S.C. app. 468), 10
U.S.C. 2538, and 50 U.S.C. 82.
Set-aside. The amount of an item for
which a supplier must reserve order
book space in anticipation of the receipt of rated orders.
Stafford Act—Title VI (Emergency
Preparedness) of the Robert T. Stafford
Disaster Relief and Emergency Assistance Act, as amended (42 U.S.C. 5195 et
seq.).

resolution of conflicts among rated orders of equal priority, see § 700.14(c).)
(3) In addition, a Directive issued by
Commerce takes preference over any
DX rated order, DO rated order, or
unrated order, as stipulated in the Directive. (For a full discussion of Directives, see § 700.62.)
(b) Program identification symbols. Program identification symbols indicate
which approved program is being supported by a rated order. The list of approved programs and their identification symbols are listed in Schedule I.
For example, A1 identifies defense aircraft programs and A7 signifies defense
electronic programs. Program identification symbols, in themselves, do not
connote any priority.
(c) Priority ratings. A priority rating
consists of the rating symbol—DO and
DX—and the program identification
symbol, such as A1, C2, or N1. Thus, a
contract for the production of an aircraft will contain a DO-A1 or DX-A1
priority rating. A contract for a radar
set will contain a DO-A7 or DX-A7 priority rating.

[49 FR 30414, July 30, 1984; 49 FR 50172, Dec.
27, 1984. Redesignated at 54 FR 601, Jan. 9,
1989, as amended at 63 FR 31921, June 11, 1998;
71 FR 39528, July 13, 2006]

Subpart D—Industrial Priorities
§ 700.10

Delegation of authority.

(a) The priorities and allocations authorities of the President under Title I
of the Defense Production Act with respect to industrial resources have been
delegated to the Secretary of Commerce under Executive Order 12919 of
June 3, 1994 (59 FR 29525). The priorities
authorities of the President under the
Selective Service Act and related statutes with respect to industrial resources have also been delegated to the
Secretary of Commerce under Executive Order 12742 of January 8, 1991 (56
FR 1079).
(b) Within the Department of Commerce, these responsibilities have been
assigned to the Office of Strategic Industries and Economic Security. The
Department of Commerce has authorized the Delegate Agencies to assign
priority ratings to orders for items
needed for approved programs.

[49 FR 30414, July 30, 1984. Redesignated at 54
FR 601, Jan. 9, 1989, as amended at 63 FR
31922, June 11, 1998; 71 FR 39528, July 13, 2006]

§ 700.12

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Elements of a rated order.

Each rated order must include:
(a) The appropriate priority rating
(e.g. DO-A1, DX-A4, DO-H1);
(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 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

[49 FR 30414, July 30, 1984. Redesignated at 54
FR 601, Jan. 9, 1989, as amended at 63 FR
31922, June 11, 1998; 71 FR 39528, July 13, 2006]

§ 700.11

§ 700.12

Priority ratings.

(a) Levels of priority. (1) There are two
levels of priority established by this
regulation, identified by the rating
symbols ‘‘DO’’ and ‘‘DX’’.
(2) All DO rated orders have equal
priority with each other and take preference over unrated orders. All DX
rated orders have equal priority with
each other and take preference over DO
rated orders and unrated orders. (For

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§ 700.13

15 CFR Ch. VII (1–1–09 Edition)

placed order, of an individual authorized to sign rated orders for the 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) A statement that reads in substance:

based on the earliest delivery date otherwise possible.
(4) If a person is unable to fill all 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 Commerce, 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 performed;
(3) If the order is for an item 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, the supplier is obligated to accept rated orders up to
that quantity or portion of production,
whichever is greater, sold 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 Commerce issued under the authority of the Defense Production Act
or the Selective Service Act and related statutes [See § 700.75].
(d) Customer notification requirements.
(1) A person must accept or reject a
rated order and transmit the acceptance or rejection in writing (hard
copy), or in electronic format, 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 also provide the reasons

This is a rated order certified for national
defense use, and you are required to follow
all the provisions of the Defense Priorities
and Allocations System regulation (15 CFR
part 700).
[49 FR 30414, July 30, 1984. Redesignated at 54
FR 601, Jan. 9, 1989, as amended at 63 FR
31922, June 11, 1998]

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§ 700.13 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 Commerce:
(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

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give preference to the conflicting orders in the sequence in which they are
to be delivered or performed (not to the
receipt dates). If the conflicting rated
orders are scheduled to be delivered or
performed on the same day, the person
shall give preference to those orders
which 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
assistance as provided in §§ 700.50
through 700.54. 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
§§ 700.50 through 700.54. For any rated
order against which delivery or performance will be delayed, the person
must notify the customer as provided
in § 700.13(d)(2).
(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 § 700.17(b).

for the rejection, pursuant to paragraphs (b) and (c) of this section, in
writing (hard copy) or electronic format.
(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.
(The information collection requirements in
paragraphs (d)(1) and (d)(2) are approved by
the Office of Management and Budget under
OMB control number 0694–0053)
[49 FR 30414, July 30, 1984. Redesignated at 54
FR 601, Jan. 9, 1989, as amended at 63 FR
31922, June 11, 1998; 70 FR 10864, Mar. 7, 2005]

§ 700.14 Preferential scheduling.
(a) A person must schedule operations, including the acquisition of all
needed production items, 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 against unrated orders. Similarly, DX rated orders must
be given preference over DO rated orders and unrated orders.

[49 FR 30414, July 30, 1984. Redesignated at 54
FR 601, Jan. 9, 1989, as amended at 63 FR
31922, June 11, 1998]

§ 700.15

Extension of priority ratings.

(a) A person must use rated orders
with suppliers to obtain items 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 regulation or as
directed by the Department of Commerce.

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.

yshivers on PROD1PC62 with CFR

§ 700.15

For example, if a person is in receipt of a
DO-A3 rated order for a navigation system
and needs to purchase semiconductors for its
manufacture, that person must use a DO-A3
rated order to obtain the needed semiconductors.

(b) The priority rating must be included on each successive order placed
to obtain items needed to fill a customer’s rated order. This continues
from contractor to subcontractor to
supplier throughout the entire procurement chain.

(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

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§ 700.16

15 CFR Ch. VII (1–1–09 Edition)
(4) MRO needed to produce the finished items to fill rated orders. However, for MRO, the priority rating used
must contain the program identification symbol H7 along with the rating
symbol contained on the customer’s
rated order. For example, a person in
receipt of a DO-A3 rated order, who
needs MRO, would place a DO-H7 rated
order with the person’s supplier.
(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 symbol and the program identification symbol indicated
on the customer’s rated order must be
used on the order. A DX rating symbol
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 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 § 700.12, are included on the order with the statement
required in § 700.12(d) modified to read
in substance:

§ 700.16 Changes or cancellations of
priority ratings and rated orders.
(a) The priority rating on a rated
order may be changed or cancelled by:
(1) An official action of the Department of Commerce; or
(2) Written notification from the person who placed the rated order (including a Delegate Agency).
(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
§ 700.13.
(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
to fill a rated order, any rated orders
placed with suppliers for the items, or
the priority rating on those orders,
must be cancelled.
(f) When a priority rating is added to
an unrated order, or is changed or cancelled, all suppliers must be promptly
notified in writing.

yshivers on PROD1PC62 with CFR

§ 700.17

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

This purchase order contains rated order
quantities certified for national defense use,
and you are required to follow all the provisions of the Defense Priorities and Allocations System regulation (15 CFR part 700)
only as it pertains to the rated quantities.

(2) A supplier must accept or reject
the rated portion of the purchase order

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Bureau of Industry and Security, Commerce
as provided in § 700.13 and give preferential treatment only to the rated
quantities as required by this part.
This part may not be used to give preferential treatment to 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 regulation or in a fashion
that causes undue or exceptional hardship may submit a request for adjustment or exception under § 700.80.
(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 Federal
Acquisition Regulation (FAR) Simplified Acquisition Threshold (see FAR
2.101), whichever amount is larger, provided that delivery can be obtained in
a timely fashion without the use of the
priority rating.

been obtained from a Delegate Agency
or Commerce:
(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 § 700.51.]
(v) 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) Jurisdiction limitations. (1) The priorities and allocations authority for
certain items have been delegated
under Executive Orders 12919 and 12742,
other executive order, or Interagency
Memoranda of Understanding to other
agencies. Unless otherwise agreed to by
the concerned agencies, the provisions
of this part are not applicable to these
items which include:
(i) Food resources, food resource facilities, and the domestic distribution
of farm equipment and commercial fertilizer (Department of Agriculture)
(The Department of Agriculture and
the Department of Commerce have
agreed that the Department of Defense
may place rated contracts and orders
for food resources in support of troops,
including but not limited to, meals
ready to eat (MREs), ‘‘tray-packs’’ (Trations), A-rations, and B-rations);
(ii) All forms of energy, including
radioisotopes, stable isotopes, source
material, and special nuclear material
produced in Government-owned plants
or facilities operated by or for the Department of Energy (Department of
Energy);
(iii) Health resources (Department of
Health and Human Services);
(iv) All forms of civil transportation
(Department of Transportation);
(v) Water resources (Department of
Defense/U.S. Army Corps of Engineers);
and
(vi) Communications services (National Communications System under
Executive Order 12472 of April 3, 1984).

[49 FR 30414, July 30, 1984. Redesignated at 54
FR 601, Jan. 9, 1989, as amended at 63 FR
31923, June 11, 1998]

yshivers on PROD1PC62 with CFR

§ 700.18

§ 700.18 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 regulation.
(2) Rated orders may not be used to
obtain:
(i) Delivery on a date earlier than
needed;
(ii) A greater quantity of the item
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 in advance of the receipt
of a rated order, except as specifically
authorized by Commerce (see § 700.51(c)
for information on obtaining authorization for a priority rating in advance
of a rated order); or
(iv) Any of the following items unless
specific priority rating authority has

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§ 700.20

15 CFR Ch. VII (1–1–09 Edition)
(b) On receipt of the application, the
Department of Energy will:
(1) Determine if the project maximizes domestic energy supplies; and
(2) Find whether the materials,
equipment, or services involved in the
application are critical and essential to
the project.
(c) If the Department of Energy notifies Commerce that the project maximizes domestic energy supplies and
that the materials, equipment, or services are critical and essential, Commerce must find whether the items in
question are scarce and whether there
is a need to use the priorities and allocations authorities.
(1) Scarcity implies an unusual difficulty in obtaining the materials,
equipment, or services in a timeframe
consistent with the timely completion
of the energy project. Among the factors to be used in making the scarcity
finding will be the following:
(i) Value and volume of material or
equipment shipments;
(ii) Consumption of material and
equipment;
(iii) Volume and market trends of
imports and exports;
(iv) Domestic and foreign sources of
supply;
(v) Normal levels of inventories;
(vi) Rates of capacity utilization;
(vii) Volume of new orders; and
(viii) Lead times for new orders.
(2) In finding whether there is a need
to use the priorities and allocations authorities, Commerce will consider alternative supply solutions and other
measures.
(d) If Commerce does not find that
the items of materials, equipment, or
services are scarce, it will not proceed
to analyze the need to use the priorities and allocations authorities.
(e) Commerce will inform the Department of Energy of the results of its
analysis. If Commerce has made the
two required findings, it will authorize
the Department of Energy to grant the
use of a priority rating to the applicant.
(f) Schedule I includes a list of approved programs to support the maximization of domestic energy supplies.
A Department of Energy regulation

(2) The jurisdiction of the Department of Commerce and the Departments of Energy and Agriculture over
certain specific items included in the
categories listed above has been clarified by Interagency Memoranda of Understanding.
(3) The following items under the jurisdiction of Commerce are currently
excluded from the rating provisions of
this regulation; however, these items
are subject to Commerce Directives.
These excluded items are:
Copper raw materials
Crushed stone
Gravel
Sand
Scrap
Slag
Steam heat, central
Waste paper
[49 FR 30414, July 30, 1984. Redesignated at 54
FR 601, Jan. 9, 1989, as amended at 63 FR
31923, June 11, 1998; 71 FR 39528, July 13, 2006]

Subpart E—Industrial Priorities for
Energy Programs

yshivers on PROD1PC62 with CFR

§ 700.20 Use of priority ratings.
(a) Section 101(c) of the Defense Production Act authorizes the use of priority ratings for projects which maximize domestic energy supplies.
(b) Projects which maximize domestic energy supplies include those which
maintain or further domestic energy
exploration, production, refining, and
transportation; maintain or further the
conservation of energy; or are involved
in the construction or maintenance of
energy facilities.
§ 700.21 Application for priority rating
authority.
(a) For projects believed to maximize
domestic energy supplies, a person may
request priority rating authority for
scarce, critical, and essential supplies
of materials, equipment, and services
(related to the production of materials
or equipment, or the installation, repair, or maintenance of equipment) by
submitting a request to the Department of Energy. Further information
may be obtained from the U.S. Department of Energy, Office of Electricity
Delivery and Energy Reliability, 1000
Independence Avenue, SW., Washington, DC 20585.

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Bureau of Industry and Security, Commerce
setting forth the procedures and criteria used by the Department of Energy in making its determination and
findings is published in 10 CFR part 216.

table and orderly distribution of requirements for such items among all
suppliers of the items. These rules may
provide for the allocation of individual
items or they may be broad enough to
direct general industrial activity as required in support of emergency requirements.
(ii) Allocation rules (i.e., controlled
materials programs) were established
in response to previous periods of national security emergency such as
World War II and the Korean Conflict.
The basic elements of the controlled
materials programs were the set-aside
(the amount of an item for which a producer or supplier must reserve order
book space in anticipation of the receipt of rated orders), the production
directive (requires a producer to supply
a specific quantity, size, shape, and
type of an item within a specific time
period), and the allotment (the maximum quantity of an item authorized
for use in a specific program or application). These elements can be used to
assure the availability of any scarce
and critical item for approved programs. Currently, a set-aside applies
only to metalworking machines (see
§ 700.31).
(3) In the event that certain critical
items become scarce, and approved program requirements for these items cannot be met without creating a significant dislocation in the civilian market
place so as to create appreciable hardship, Commerce may establish special
rules under section 101(b) of the Defense Production Act to control the
general distribution of such items in
the civilian market.
(b) [Reserved]

[49 FR 30414, July 30, 1984. Redesignated at 54
FR 601, Jan. 9, 1989, as amended at 63 FR
31923, June 11, 1998; 73 FR 34, Jan. 2, 2008]

Subpart F—National Emergency
Preparedness and Critical Items
SOURCE: 63 FR 31923, June 11, 1998, unless
otherwise noted.

yshivers on PROD1PC62 with CFR

§ 700.31

§ 700.30 Priorities and allocations in a
national emergency.
(a) In the event of a national emergency, special rules may be established
as needed to supplement this part, thus
ensuring rapid industrial response and
the timely availability of critical industrial items and facilities to meet
the urgent national defense requirements, including domestic emergency
preparedness requirements, of approved
programs.
(1) Emergency official actions. (i) As
needed, this part may be supplemented
to include additional definitions to
cover civilian emergency preparedness
industrial items, support for essential
civilian programs, and provisions for
the taking of certain emergency official actions under sections §§ 700.60
through 700.63.
(ii) Emergency official actions may
include:
(A) Controlling inventories of critical
and scarce defense and/or emergency
preparedness items;
(B) Restricting the purchase, use, or
distribution of critical and scarce defense and/or emergency preparedness
items, or the use of production or distribution facilities, for non-essential
purposes; and
(C) Converting the production or distribution of non-essential items to the
production or distribution of critical
and scarce defense and/or emergency
preparedness items.
(2) Allocation of critical and scarce
items and facilities. (i) As needed, this
part may be supplemented to establish
special rules for the allocation of
scarce and critical items and facilities
to ensure the timely availability of
these items and facilities for approved
programs, and to provide for an equi-

[63 FR 31923, June 11, 1998, as amended at 71
FR 39528, July 13, 2006]

§ 700.31

Metalworking machines.

(a) ‘‘Metalworking machines’’ include power driven, manual or automatic, metal cutting and metal forming machines and complete machines
not supported in the hands of an operator when in use. Basic machines with
a list price of $2,500 or less are not covered by this section.
(b) Metalworking machines covered
by this section include:
Bending and forming machines

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§ 700.50

15 CFR Ch. VII (1–1–09 Edition)

Boring machines
Broaching machines
Drilling and tapping machines
Electrical discharge, ultrasonic and chemical erosion machines
Forging machinery and hammers
Gear cutting and finishing machines
Grinding machines
Hydraulic and pneumatic presses, power
driven
Machining centers and way-type machines
Manual presses
Mechanical presses, power driven
Milling machines
Miscellaneous machine tools
Miscellaneous secondary metal forming and
cutting machines
Planers and shapers
Polishing, lapping, boring, and finishing machines
Punching and shearing machines
Riveting machines
Saws and filing machines
Turning machines, lathes, including automatic
Wire and metal ribbon forming machines

Agency is unable to resolve the problem or to authorize the use of a priority rating and believes additional assistance is warranted, the Delegate
Agency may forward the request to the
Department of Commerce for action.
Special priorities assistance is a service provided to alleviate problems that
do arise.
(b) Special priorities assistance can
be provided for any reason in support
of this regulation, such as assisting in
obtaining timely deliveries of items
needed to satisfy rated orders or authorizing the use of priority ratings on
orders to obtain items not automatically ratable under this regulation.
(c) A request for special priorities assistance or priority rating authority
must be submitted on Form BIS–999
(OMB control number 0694–0057) to the
local contract administration representative. Form BIS–999 may be obtained from the Delegate Agency representative or from the Department of
Commerce. A sample Form BIS–999 is
attached at appendix I.

(c) A metalworking machine producer is not required to accept DO
rated orders calling for delivery in any
month of a total quantity of any size of
machine in excess of 60 percent of
scheduled production of that size of
machine for that month, or any DO
rated orders received less than three
months prior to the beginning of the
month for which delivery is requested.
However, DX rated orders must be accepted without regard to a set-aside or
the lead time, if delivery can be made
by the required date.

[49 FR 30414, July 30, 1984; 49 FR 50171, Dec.
27, 1984. Redesignated at 54 FR 601, Jan. 9,
1989, as amended at 63 FR 31924, June 11, 1998]

§ 700.51 Requests for priority rating
authority.
(a) If a rated order is likely to be delayed because a person is unable to obtain items not normally rated under
this regulation, the person may request
the authority to use a priority rating
in ordering the needed items. Examples
of items for which priority ratings can
be authorized include:
(1) Production or construction equipment;
(2) Computers when not used as production items; and
(3) Expansion, rebuilding or replacing
plant facilities.
(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 appropriate Delegate Agency. The Delegate Agency
may establish particular forms to be
used for these requests (e.g., Department of Defense Form DD 691.)
(2) When the use of a priority rating
is authorized for the procurement of
production or construction equipment,

[49 FR 30414, July 30, 1984. Redesignated at 54
FR 601, Jan. 9, 1989. Further redesignated at
63 FR 31924, June 11, 1998]

Subpart G [Reserved]

yshivers on PROD1PC62 with CFR

Subpart H—Special Priorities
Assistance
§ 700.50 General provisions.
(a) The DPAS is designed to be largely self-executing. However, it is anticipated that from time-to-time problems
will occur. In this event, a person
should immediately contact the appropriate contract administration officer
for guidance or assistance. If additional
formal aid is needed, special priorities
assistance should be sought from the
Delegate Agency through the contract
administration officer. If the Delegate

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Bureau of Industry and Security, Commerce
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, Commerce,
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 appropriate Delegate Agency. The person
shall also assume any business risk associated with the placing of rated orders if these orders have to be cancelled in the event the rated prime contract is not issued.
(2) The person must state the following in the request:

(4) Commerce 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.
§ 700.52

Examples of assistance.

(a) While special priorities assistance
may be provided for any reason in support of this regulation, 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 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.

It is understood that the authorization of a
priority rating in advance of our receiving a
rated prime contract from a Delegate Agency and our use of that priority rating with
our suppliers in no way commits the Delegate Agency, the Department of Commerce
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.

yshivers on PROD1PC62 with CFR

§ 700.54

§ 700.53

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 Delegate
Agency or Commerce 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.

(3) In reviewing requests for rating
authority in advance of a rated prime
contract, Commerce 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 political sensitivity of the
project; and
(vi) The time period for which the
rating is being requested.

§ 700.54 Instances where
will not be provided.

assistance

Special priorities assistance is provided at the discretion of the Delegate
Agencies and Commerce when it is determined that such assistance is warranted to meet the objectives of this
regulation. Examples where assistance
may not be provided include situations
when a person is attempting to:
(a) Secure a price advantage;

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§ 700.55

15 CFR Ch. VII (1–1–09 Edition)

(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.

ment Services Canada, for authority to
place rated orders in the United States:
Public Works and Government Services
Canada, Acquisitions Branch, Business
Management Directorate, Phase 3,
Place du Portage, Level 0A1, 11 Laurier
Street, Gatineau, Quebec, K1A 0S5,
Canada; telephone: (819) 956–6825; Fax:
(819) 956–7827.
(4) Any person in Canada producing
defense items for the Canadian government may also obtain priority rating
authority for items to be purchased in
the United States by applying to the
Canadian Public Works and Government Services Canada, Acquisitions
Branch, Business Management Directorate, in accordance with its procedures.
(5) Persons in Canada needing special
priorities assistance in obtaining defense items in the United States may
apply to the Canadian Public Works
and Government Services Canada, Acquisitions Branch, Business Management Directorate, for such assistance.
Public Works and Government Services
Canada will forward appropriate requests to the U.S. Department of Commerce.
(6) Any person in the United States
requiring assistance in obtaining items
in Canada must submit a request
through the Delegate Agency to Commerce on Form BIS–999. Commerce will
forward appropriate requests to the Canadian Public Works and Government
Services Canada.
(c) Foreign nations. (1) Any person in
a foreign nation other than Canada requiring assistance in obtaining defense
items in the United States or priority
rating authority for defense items to
be purchased in the United States,
should submit a request for such assistance or rating authority to the Office
of the Deputy Under Secretary of Defense (Industrial Policy): Office of the
Deputy Under Secretary of Defense (Industrial Policy), 3330 Defense Pentagon, Washington, DC 20301; telephone: (703) 697–0051; Fax: (703) 695–4277.
(i) If the end product is being acquired by a U.S. government agency,
the request should be submitted to the
Office of the Deputy Under Secretary
of Defense (Industrial Policy) through
the U.S. contract administration representative.

yshivers on PROD1PC62 with CFR

[49 FR 30414, July 30, 1984. Redesignated at 54
FR 601, Jan. 9, 1989, as amended at 63 FR
31924, June 11, 1998]

§ 700.55 Assistance
programs
with
Canada and other nations.
(a) To promote military assistance to
foreign nations, this section provides
for authorizing priority ratings to persons in Canada and in other foreign nations to obtain items in the United
States in support of approved programs. Although priority ratings have
no legal authority outside of the
United States, this section also provides information on how persons in
the United States may obtain informal
assistance in Canada, Italy, The Netherlands, Sweden, and the United Kingdom in support of approved programs.
(b) Canada. (1) The joint U.S.-Canadian military arrangements for the defense of North America and the integrated nature of their defense industries as set forth in the U.S.-Canadian
Statement of Principles for Economic Cooperation (October 26, 1950) require
close coordination and the establishment of a means to provide mutual assistance to the defense industries located in both countries.
(2) The Department of Commerce coordinates with the Canadian Public
Works and Government Services Canada on all matters of mutual concern
relating to the administration of this
regulation.
(3) Any person in the United States
ordering defense items in Canada in
support of an approved program should
inform the Canadian supplier that the
items being ordered are to be used to
fill a rated order. The Canadian supplier should be informed that if production materials are needed from the
United States by the supplier or the
supplier’s vendor to fill the order, the
supplier or vendor should contact the
Canadian Public Works and Govern-

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Bureau of Industry and Security, Commerce
(ii) If the end product is being acquired by a foreign nation, the request
must be sponsored prior to its submission to the Office of the Deputy Under
Secretary of Defense (Industrial Policy) by the government of the foreign
nation that will use the end product.
(2) If the Department of Defense endorses the request, it will be forwarded
to Commerce for appropriate action.
(d) Requesting assistance in Italy, The
Netherlands, Sweden, and the United
Kingdom.
(1) The U.S. Department of Defense
has entered into bilateral security of
supply arrangements with Italy, The
Netherlands, Sweden, and the United
Kingdom that allow the U.S. Department of Defense to request the priority
delivery for U.S. Department of Defense contracts, subcontracts, and orders from companies in these countries.
(2) Any person in the United States
requiring assistance in obtaining the
priority delivery of a contract, subcontract, or order in Italy, The Netherlands, Sweden, or the United Kingdom
to support an approved program should
contact the Office of the Deputy Under
Secretary of Defense (Industrial Policy) for assistance. Persons in Italy,
The Netherlands, Sweden, and the
United Kingdom should request assistance in accordance with § 700.55(c)(1).

§ 700.61

§ 700.62

Directives.

(a) A Directive is an official action
which 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) Directives take precedence over
all DX rated orders, DO rated orders,
and unrated orders previously or subsequently received, unless a contrary instruction appears in the Directive.
§ 700.63

Letters of Understanding.

(a) A Letter of Understanding is an
official action which may be issued in
resolving special priorities assistance
cases to reflect an agreement reached
by all parties (Commerce, the Delegate
Agency, the supplier, and the customer).
(b) A Letter of Understanding is not
used to alter scheduling between rated
orders, to authorize the use of priority
ratings, to impose restrictions under
this regulation, or to take other official actions. Rather, Letters of Understanding are used to confirm production or shipping schedules which do not
require modifications to other rated orders.

Subpart I—Official Actions
General provisions.

(a) Commerce may, from time-totime, take specific official actions to
implement or enforce the provisions of
this regulation.
(b) Several of these official actions
(Rating Authorizations, Directives, and
Letters of Understanding) are discussed
in this subpart. Other official actions
which pertain to compliance (Administrative Subpoenas, Demands for Information, and Inspection Authorizations)
are discussed in § 700.71(c).
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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 not
normally ratable under this regulation;
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 § 700.51.

[49 FR 30414, July 30, 1984. Redesignated at 54
FR 601, Jan. 9, 1989, as amended at 63 FR
31924, June 11, 1998; 71 FR 39528, July 13, 2006;
71 FR 54904, Sept. 20, 2006]

§ 700.60

§ 700.70

Subpart J—Compliance
§ 700.70

General provisions.

(a) Compliance actions may be taken
for any reason necessary or appropriate
to the enforcement or the administration of the Defense Production Act, the

[49 FR 30414, July 30, 1984. Redesignated at 54
FR 601, Jan. 9, 1989, as amended at 71 FR
39528, July 13, 2006]

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§ 700.71

15 CFR Ch. VII (1–1–09 Edition)

Selective Service Act and related statutes, this regulation, or an official action. Such actions include audits, investigations, or other inquiries.
(b) Any person who places or receives
a rated order should be thoroughly familiar with, and must comply with, the
provisions of this regulation.
(c) Willful violation of any of the provisions of Title I or section 705 of the
Defense Production Act, this regulation, or an official action of the Department of Commerce, is a criminal
act, punishable as provided in the Defense Production Act and as set forth
in § 700.74 of this regulation.

yshivers on PROD1PC62 with CFR

[49 FR 30414, July 30, 1984. Redesignated at 54
FR 601, Jan. 9, 1989, as amended at 63 FR
31924, June 11, 1998]

§ 700.71 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, the Selective Service Act and related 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.
(b) When undertaking an audit, investigation, or other inquiry, the Department of Commerce 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 regulation,
Commerce may issue the following documents which 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
Commerce to testify under oath on
matters of which that person has
knowledge relating to the enforcement
or the administration of the Defense
Production Act, the Selective Service
Act and related statutes, this regulation, or official actions. An Adminis-

trative Subpoena may also require the
production of books, papers, records,
documents and physical objects or
property.
(2) Demand for Information. A Demand
for Information requires a person to
furnish to a duly authorized representative of the Department of Commerce
any information necessary or appropriate to the enforcement or the administration of the Defense Production
Act, the Selective Service Act and related statutes, this regulation, or official actions.
(3) Inspection Authorizations. An Inspection Authorization requires a person to permit a duly authorized representative of Commerce to interview
the person’s employees or agents, to inspect books, records, documents, other
writings and information in the person’s possession or control at the place
where that person usually keeps them,
and to inspect a person’s property
when such interviews and inspections
are necessary or appropriate to the enforcement or the administration of the
Defense Production Act, the Selective
Service Act and related statutes, this
regulation, 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 Commerce 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 Commerce 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

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Bureau of Industry and Security, Commerce
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 of suitable age
and discretion 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.
[49 FR 30414, July 30, 1984. Redesignated at 54
FR 601, Jan. 9, 1989, as amended at 63 FR
31924, June 11, 1998]

yshivers on PROD1PC62 with CFR

§ 700.72

Compulsory process.

(a) If a person refuses to permit a
duly authorized representative of Commerce to have access to any premises
or source of information necessary to
the administration or the enforcement
of the Defense Production Act, the Selective Service Act and related statutes, this regulation, or official actions, the Commerce 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.

§ 700.74

(b) Compulsory process may be
sought in advance of an audit, investigation, or other inquiry, if, in the
judgment of the Director of the Office
of Strategic Industries and Economic
Security, U.S. Department of Commerce, in consultation with the Chief
Counsel for Industry and Security, U.S.
Department of Commerce, there is reason to believe that a person will refuse
to permit an audit, investigation, or
other inquiry, or that other circumstances exist which make such
process desirable or necessary.
[49 FR 30414, July 30, 1984. Redesignated at 54
FR 601, Jan. 9, 1989, as amended at 63 FR
31924, June 11, 1998; 67 FR 45633, July 10, 2002;
71 FR 39528, July 13, 2006]

§ 700.73 Notification of failure to comply.
(a) At the conclusion of an audit, investigation, or other inquiry, or at any
other time, Commerce may inform the
person in writing where compliance
with the requirements of the Defense
Production Act, the Selective Service
Act and related statutes, this regulation, or an official action were not met.
(b) In cases where Commerce determines that failure to comply with the
provisions of the Defense Production
Act, the Selective Service Act and related statutes, this regulation, 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 willfull violation of the
Defense Production Act, this regulation, or an official action.
[49 FR 30414, July 30, 1984. Redesignated at 54
FR 601, Jan. 9, 1989, as amended at 63 FR
31924, June 11, 1998]

§ 700.74 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, 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 penalty provided by the Defense Production Act is a $10,000 fine,
or one year in prison, or both. The

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§ 700.75

15 CFR Ch. VII (1–1–09 Edition)

maximum penalty provided by the Selective Service Act and related statutes is 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 regulation, or an official
action.
(c) In order to secure the effective enforcement of the Defense Production
Act, this regulation, and official actions, the following are prohibited (see
section 704 of the Defense Production
Act; see also, for example, sections 2
and 371 of Title 18, United States Code):
(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, this regulation, 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, this regulation, 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, this regulation, or an official action. In such instances, the person must immediately
notify the Department of Commerce
that, in accordance with this provision,
delivery has not been made.
[49 FR 30414, July 30, 1984. Redesignated at 54
FR 601, Jan. 9, 1989, as amended at 63 FR
31924, June 11, 1998]

yshivers on PROD1PC62 with CFR

§ 700.75 Compliance conflicts.
If compliance with any provision of
the Defense Production Act, the Selective Service Act and related statutes,
this regulation, or an official action
would prevent a person from filling a
rated order or from complying with another provision of the Defense Production Act, this regulation, or an official
action, the person must immediately
notify the Department of Commerce
for resolution of the conflict.
[49 FR 30414, July 30, 1984. Redesignated at 54
FR 601, Jan. 9, 1989, as amended at 63 FR
31924, June 11, 1998]

Subpart K—Adjustments,
Exceptions, and Appeals
§ 700.80

Adjustments or exceptions.

(a) A person may submit a request to
the Office of Strategic Industries and
Economic Security, U.S. Department
of Commerce, for an adjustment or exception on the ground that:
(1) A provision of this regulation 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 consequence of following a
provision of this regulation or an official action is contrary to the intent of
the Defense Production Act, the Selective Service Act and related statutes,
or this regulation.
(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 regulation 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
regulation or official action in question while the request is being considered unless such interim relief is granted in writing by the Office of Strategic
Industries and Economic Security.
(d) A decision of the Office of Strategic Industries and Economic Security
under this section may be appealed to
the Assistant Secretary for Export Administration, U.S. Department of Commerce. (For information on the appeal
procedure, see § 700.81.)
[49 FR 30414, July 30, 1984. Redesignated at 54
FR 601, Jan. 9, 1989, as amended at 63 FR
31924, 31925, June 11, 1998]

§ 700.81

Appeals.

(a) Any person who has had a request
for adjustment or exception denied by
the Office of Strategic Industries and
Economic Security under § 700.80, may
appeal to the Assistant Secretary for

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yshivers on PROD1PC62 with CFR

Bureau of Industry and Security, Commerce
Export Administration, U.S. Department of Commerce, who shall review
and reconsider the denial.
(b) An appeal must be received by the
Office of the Assistant Secretary for
Export Administration, Bureau of Industry and Security, U.S. Department
of Commerce, Washington, D. C. 20230,
Ref: DPAS, no later than 45 days after
receipt of a written notice of denial
from the Office of Strategic Industries
and Economic Security. After this 45day period, an appeal may be accepted
at the discretion of the Assistant Secretary for Export Administration for
good cause shown.
(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 Assistant
Secretary for Export Administration.
(e) When a hearing is granted, the Assistant Secretary for Export Administration may designate an employee of
the Department of Commerce 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
Assistant Secretary for Export Administration 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
Commerce, 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 regulation or
official action in question while the appeal is being considered unless such relief is granted in writing by the Assist-

§ 700.91

ant Secretary for Export Administration.
(h) The decision of the Assistant Secretary for Export Administration shall
be made within a reasonable time after
receipt of the appeal 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.
[49 FR 30414, July 30, 1984. Redesignated at 54
FR 601, Jan. 9, 1989, as amended at 63 FR
31925, June 11, 1998; 71 FR 39528, July 13, 2006]

Subpart L—Miscellaneous
Provisions
§ 700.90

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 regulation, or an official
action, notwithstanding that such provision or action shall subsequently be
declared invalid by judicial or other
competent authority.
§ 700.91

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 regulation (OMB
control number 0694–0053) 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 regulation or any official action. However, this regulation
does not specify any particular method
or system to be used.
(c) Records required to be maintained
by this regulation must be made available for examination on demand by
duly authorized representatives of
Commerce as provided in § 700.71.
(d) In addition, persons must develop,
maintain, and submit any other
records and reports to Commerce that
may be required for the administration
of the Defense Production Act, the Selective Service Act and related statutes, and this regulation.
(e) Section 705(e) of the Defense Production Act provides that information
obtained under this section which the

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§ 700.92

15 CFR Ch. VII (1–1–09 Edition)

President 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
President determines that the withholding of this information is contrary
to the interest of the national defense.
Information required to be submitted
to Commerce in connection with the
enforcement or administration of the
Act, this regulation, or an official action, is deemed to be confidential
under section 705(e) of the Act and
shall not be published or disclosed except as required by law.
[49 FR 30414, July 30, 1984. Redesignated at 54
FR 601, Jan. 9, 1989, as amended at 63 FR
31924, 31925, June 11, 1998]

§ 700.92 Applicability of this regulation
and official actions.
(a) This regulation 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 regulation 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 regulation and its schedules
shall not be construed to affect any ad-

ministrative actions taken by Commerce, or any outstanding contracts or
orders placed pursuant to any of the
regulations, orders, schedules or delegations of authority under the Defense
Materials System and Defense Priorities System previously issued by Commerce. Such actions, contracts, or orders shall continue in full force and effect under this regulation unless modified or terminated by proper authority.
(d) The repeal of the regulations, orders, schedules and delegations of authority of the Defense Materials System (DMS) and Defense Priorities System (DPS) shall not have the effect to
release or extinguish any penalty or liability incurred under the DMS/DPS.
The DMS/DPS shall be treated as still
remaining in force for the purpose of
sustaining any action for the enforcement of such penalty or liability.
§ 700.93

Communications.

All communications concerning this
regulation, including requests for copies of the regulation and explanatory
information, requests for guidance or
clarification, and requests for adjustment or exception shall be addressed to
the Office of Strategic Industries and
Economic Security, Room 3876, U.S.
Department of Commerce, Washington,
DC 20230, Ref: DPAS; telephone: (202)
482–3634 or fax: (202) 482–5650.
[71 FR 39528, July 13, 2006]

SCHEDULE I TO PART 700—APPROVED PROGRAMS AND DELEGATE AGENCIES
The programs listed in this schedule have been approved for priorities and allocations support under this part. They have equal preferential status. The Department of Commerce has
authorized the Delegate Agencies to use this part in support of those programs assigned to
them, as indicated below.
Program identification symbol

yshivers on PROD1PC62 with CFR

Defense programs:
A1 ...............................................
A2 ...............................................
A3 ...............................................
A4 ...............................................
A5 ...............................................
A6 ...............................................
A7 ...............................................
B1 ...............................................
B8 ...............................................
B9 ...............................................
C1 ...............................................
C2 ...............................................

Approved program

Delegate agency

Aircraft ...................................................................
Missiles ..................................................................
Ships .....................................................................
Tank—Automotive .................................................
Weapons ...............................................................
Ammunition ...........................................................
Electronic and communications equipment ..........
Military building supplies .......................................
Production equipment (for defense contractor’s
account).
Production equipment (Government owned) ........
Food resources (combat rations) ..........................
Department of Defense construction ....................

Department of Defense.1
Do.
Do.
Do.
Do.
Do.
Do.
Do.
Do.
Do.
Do.
Do.

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Bureau of Industry and Security, Commerce
Program identification symbol
C3 ...............................................
C9 ...............................................
International defense programs:
Canada:
D1 ........................................
D2 ........................................
D3 ........................................
Other Foreign Nations:
G1 ........................................

G2 ........................................
G3 ........................................
Co-Production:
J1 .........................................
Atomic energy programs:
E1 ...............................................
E2 ...............................................
E3 ...............................................
Domestic energy programs:
F1 ................................................
F2 ................................................
F3 ................................................
Other defense, energy, and related
programs:
H1 ...............................................
H5 ...............................................
H6 ...............................................
H7 ...............................................
H8 ...............................................
K1 ...............................................
Homeland security programs:
N1 ...............................................
N2 ...............................................
N3 ...............................................
N4 ...............................................
N5 ...............................................
N6 ...............................................
N7 ...............................................
N8 ...............................................

Pt. 700, Sched. I

Approved program

Delegate agency

Maintenance, repair, and operating supplies
(MRO) for Department of Defense facilities.
Miscellaneous ........................................................

Do.
Do.

Canadian military programs ..................................
Canadian production and construction .................
Canadian atomic energy program ........................

Department of Commerce.
Do.
Do.

Certain munitions items purchased by foreign
governments through domestic commercial
channels for export.
Certain direct defense needs of foreign governments other than Canada.
Foreign nations (other than Canada) production
and construction.

Department of Commerce.

F–16 Co-Production Program ...............................

Departments of Commerce and Defense.

Construction ..........................................................
Operations—including maintenance, repair, and
operating supplies (MRO).
Privately owned facilities .......................................

Department of Energy.
Do.

Exploration, production, refining, and transportation.
Conservation .........................................................
Construction, repair, and maintenance .................

Department of Energy.

Certain combined orders (see section 700.17(c))
Private domestic production ..................................
Private domestic construction ...............................
Maintenance, repair, and operating supplies
(MRO).
Designated Programs ...........................................
Federal supply items .............................................

Department of Commerce.
Do.
Do.
Do.

Federal emergency preparedness, mitigation, response, and recovery.
State, local, tribal government emergency preparedness, mitigation, response, and recovery.
Intelligence and warning systems .........................
Border and transportation security ........................
Domestic counter-terrorism, including law enforcement.
Chemical, biological, radiological, and nuclear
countermeasures.
Critical infrastructure protection and restoration ...
Miscellaneous ........................................................

Department of Homeland Security.

Do.
Do.

Do.

Do.
Do.

Do.
General Services Administration.

Do.
Do.
Do.
Do.
Do.
Do.
Do.

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

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[63 FR 31925, June 11, 1998, as amended at 71 FR 39529, July 13, 2006; 72 FR 3944, Jan. 29, 2007]

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Pt. 700, App. I

15 CFR Ch. VII (1–1–09 Edition)

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APPENDIX I TO PART 700—FORM BIS–999—REQUEST FOR SPECIAL PRIORITIES
ASSISTANCE

Pt. 700, App. I

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Bureau of Industry and Security, Commerce

15 CFR Ch. VII (1–1–09 Edition)

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Pt. 700, App. I

Bureau of Industry and Security, Commerce

Pt. 700, App. I

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[71 FR 39529, July 13, 2006]