U.S. Industrial Base Surveys Pursuant to the Defense Production Act of 1950, 11350-11355 [2015-04299]
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11350
Federal Register / Vol. 80, No. 41 / Tuesday, March 3, 2015 / Proposed Rules
Secretary of the Board under delegated
authority, February 26, 2015.
Robert deV. Frierson,
Secretary of the Board.
[FR Doc. 2015–04438 Filed 3–2–15; 8:45 am]
BILLING CODE P
DEPARTMENT OF COMMERCE
Bureau of Industry and Security
15 CFR Part 702
[Docket No. 140501396–4396–01]
RIN 0694–AG17
U.S. Industrial Base Surveys Pursuant
to the Defense Production Act of 1950
Bureau of Industry and
Security, Commerce.
ACTION: Proposed rule
AGENCY:
This proposed rule would set
forth the policies and procedures of the
Bureau of Industry and Security (BIS)
for conducting surveys to obtain
information in order to perform industry
studies assessing the U.S. industrial
base to support the national defense
pursuant to the Defense Production Act
of 1950, as amended. Specifically, this
proposed rule would provide a
description of: BIS’s authority to issue
surveys; the purpose for the surveys and
the manner in which such surveys are
developed; the confidential treatment of
submitted information; and the
penalties for non-compliance with
surveys. This rule is intended to
facilitate compliance with surveys,
thereby resulting in stronger and more
complete assessments of the U.S.
industrial base.
DATES: Comments must be received no
later than May 4, 2015.
FOR FURTHER INFORMATION CONTACT:
Jason Bolton, Trade and Industry
Analyst, Office of Technology
Evaluation, phone: 202–482–5936
email: jason.bolton@bis.doc.gov or Brad
Botwin, Director, Industrial Base
Studies, Office of Technology
Evaluation, phone: 202–482–4060 email:
brad.botwin@bis.doc.gov.
SUPPLEMENTARY INFORMATION:
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SUMMARY:
Background
Pursuant to authorities under § 705 of
the Defense Production Act of 1950 as
amended (DPA) (50 U.S.C. app. 2155)
and § 104 of Executive Order 13603 of
March 16, 2012 (National Defense
Resources Preparedness, 77 FR 16651, 3
CFR, 2012 Comp., p. 225), the Bureau of
Industry and Security (BIS) conducts
studies that assess the capabilities of the
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U.S. industrial base to support the
national defense. To produce these
studies, BIS may issue surveys to collect
detailed information related to the
health and competitiveness of the U.S.
industrial base from government sources
and private individuals or
organizations.
This proposed rule sets forth
procedures intended to facilitate the
accurate and timely completion of
surveys issued by BIS to collect data for
these studies. This rule sets forth in a
single part of the Code of Federal
Regulations the information about BIS’s
authority to conduct the studies, the
authority to issue surveys to gather data
in support of the studies, the purpose of
the surveys and the manner in which
such surveys are developed, the
confidential treatment of submitted
information, and the penalties for noncompliance with surveys.
Additionally, this rule explains BIS’s
procedures for verifying that the scope
and purpose of the surveys are well
defined, and assures that the surveys do
not solicit data that duplicates adequate
and authoritative data that is available
to BIS from any federal or other
responsible agency. A survey may
require the submission of information
similar or identical to information
possessed by another federal agency but
that is not available to BIS.
Based on requests it receives from
U.S. Government agencies, BIS
produces studies to develop findings
and policy recommendations for the
purpose of improving the
competitiveness of specific domestic
industries and technologies critical to
meeting national defense and essential
civilian requirements. These studies
may require surveys to collect relevant
data and assessments of that data and
other information available to BIS.
BIS, in cooperation with the
requesting agency, selects the persons to
be surveyed based on the likelihood that
they will have information relevant to a
study. That likelihood is related to the
person’s association with the industry
sector, material, product, service or
technology that is the subject of the
study. That association may be based on
factors such as the person’s role in
directly or indirectly providing,
producing, distributing, utilizing,
procuring, researching, developing,
consulting or advising on, the industry
sector, material, product, service or
technology that is the subject of the
study.
Whether a person’s association with
the industry sector, material, product,
service or technology being assessed is
proximate or remote does not determine
whether that person’s association is
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sufficient for inclusion in the survey.
For example, information about a
supplier of raw materials or components
that is several transactions removed
from the production of the product that
is the subject of a study may be relevant
to assessing the capabilities of the U.S.
industrial base to supply the product to
support the national defense. In such a
situation, the supplier would be
included in the survey. The nature of
the person from whom the information
is sought also does not determine
whether that person’s association with
the industry sector, material, product,
service or technology at issue is
sufficient for inclusion in the survey.
Surveys may require information from
businesses organized for profit, nonprofit organizations, academic
institutions and government agencies.
To be useful, a study must be
comprehensive, accurate and focused on
the relevant industry sector, material,
product, service or technology.
Therefore, surveys may require
information about employment,
research and development, sources of
supply, manufacturing processes,
customers, business strategy, finances
and other factors affecting the industry’s
health and competitiveness. To properly
focus the survey on the industry sector,
material, product, service or technology
being assessed, BIS may request
information about a corporation as a
whole or information about one or more
specified units or individual activities
of that corporation. The DPA provides
both a civil remedy and criminal
penalties that may be used when
recipients of surveys do not supply the
information sought.
BIS deems the information supplied
in response to survey requests to be
confidential and is prohibited by law
from publishing or disclosing such
information unless the Under Secretary
for Industry and Security determines
that withholding the information is
contrary to the interest of the national
defense. The authority to make this
determination, which § 705(d) of the
DPA gives to the President, has been
delegated to relevant agencies,
including the Secretary of Commerce,
by § 802 of Executive Order 13603. The
Secretary of Commerce re-delegated this
authority to the Under Secretary for
Industry and Security. The DPA
provides criminal penalties for any
person who willfully violates its
prohibition on publication or
disclosure.
Section by Section Description of the
Proposed Rule
This proposed rule would create a
new part in Title 15, Chapter VII,
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Subchapter A of the Code of Federal
Regulations to be designated as 15 CFR
part 702. This new part would be
devoted exclusively to BIS’s collection
of information under § 705 of the DPA
(50 U.S.C. app. 2155). Placing the new
part in Subchapter A would promote an
orderly and logical regulatory structure
because all other regulations
implementing BIS authorities related to
the DPA are contained in that
subchapter.
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Section 702.1
Section 702.1 would set forth a
general description of BIS’ authority to
collect information needed to complete
the surveys. The survey responses assist
BIS in determining the capabilities of
the industrial base to support the
national defense and to develop policy
recommendations to improve both the
international competitiveness of specific
domestic industries and their ability to
meet national defense needs.
Section 702.2
Section 702.2 would implement the
requirement to publish regulations
found in § 705 of the DPA (50 U.S.C.
app. 2155(a)) by requiring BIS personnel
of appropriate competence and
authority to ensure that before a survey
is sent to any person for completion; (1)
the scope and purpose of a survey have
been established, (2) the scope and
purpose are consistent with BIS’s
authorities under the DPA, and (3) the
data requested by the survey does not
duplicate adequate and authoritative
data available to BIS from a federal or
other authoritative source. A survey
may require information that is similar
or identical to information possessed by
other federal agencies but not available
to BIS. The section does not limit the
factors that may be considered in
deciding whether to conduct a survey
nor does it modify or replace the
requirements of the Paperwork
Reduction Act. In addition, all surveys
are reviewed by BIS and by the Office
of Management and Budget (OMB)
pursuant to the Paperwork Reduction
Act before they are distributed. The
OMB review process provides
additional assurance that surveys are
designed to collect only information
deemed necessary to meet the scope and
purpose of a study.
Section 702.3
Section 702.3 would address the
confidentiality requirements imposed
by § 705(d) of the DPA (50 U.S.C. app.
2155(d)) and, in accordance with that
section, would provide two procedures
by which the restrictions on disclosure
in § 705(d) would be invoked. First,
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consistent with its current practice, BIS
would deem all information submitted
in response to a survey to be
confidential. Second, a person
submitting a response to a survey may
request confidential treatment of the
information submitted. Although the
second procedure is likely to be
redundant of the first, the statute
prohibits disclosure if either the
government deems the information to be
confidential or if the person furnishing
the information requests confidential
treatment. BIS concludes that both
procedures should be included in the
regulations to be consistent with the
statute. Additionally, § 702.3 would
note that confidential information shall
not be published or disclosed unless the
Under Secretary for Industry and
Security determines that withholding
the information is contrary to the
interest of the national defense. The
statutory authority of the President to
make this determination has been
delegated to the Under Secretary for
Industry and Security. This section also
repeats the penalties that the statute
authorizes for persons convicted of
willfully violating the prohibition on
disclosure.
Section 702.4
Section 702.4 would require timely,
complete and adequate responses to
surveys. Specifically, the section would
require that survey responses be
returned to BIS within the time frame
stated on the initial distribution letter or
other request for information. The
section would treat a response as
‘‘inadequate’’ if it provides information
that is not responsive to the questions
asked or if it provides aggregated
information when specific information
was requested.
Section 702.4 would set forth the
criteria by which BIS may grant either
an exemption from complying with the
survey requirement or an extension of
time to comply. The grounds for
granting an exemption or an extension
are limited and generally result when
BIS concludes that the survey recipient
lacks information deemed relevant to
the survey or when compliance with the
requirement would be unduly
burdensome.
Section 702.4 would make clear that
the deadline for complying with a
survey is not suspended by submitting
a request for an exemption or extension
of time to comply.
Finally, § 702.4 would provide that
BIS may return responses that are
incomplete or inadequate and specify a
due date for a complete and adequate
response.
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Section 702.5
Section 702.5 would set forth the
consequences of failure to comply with
a survey or other request for
information. These consequences are
established by § 705(a) and (c) of the
DPA (50 U.S.C. app. 2155(a) and (c)). If
a person does not comply with a survey,
BIS may serve a subpoena upon that
person to compel compliance. If the
person still does not comply, the
government may apply to the U.S.
district court in any district in which
the person is found, resides or transacts
business for an order requiring such
person to comply. The district court has
authority to punish any failure to
comply with the order as contempt of
court. Persons who are convicted of
willfully failing to comply with a survey
or other request for information may be
fined not more than $10,000 or
imprisoned for not more than one year,
or both.
Section 702.6
Section 702.6 would define certain
terms used in part 702.
The word ‘‘confidential’’ would be
defined in terms of § 705(d) of the DPA,
thereby distinguishing its use in this
rule from its use in connection with the
classification of information for national
security purposes as set forth in
Executive Order 13526 of December 29,
2009, Classified National Security
Information (75 FR 707; 3 CFR, 2010
Comp., p. 298).
The definition of the term ‘‘person’’
would be based on the definition of
‘‘person’’ in § 702 of the DPA (50 U.S.C.
app. 2152) with some additions. The
DPA definition reads: ‘‘The term
‘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.’’ Use of the word
‘‘includes’’ in the statutory definition
implies that the list following that word
is not exhaustive. BIS concludes that the
use of ‘‘includes’’ indicates that
Congress recognized that the agency
implementing the DPA would need
discretion to identify the types of
entities that would likely possess
information relevant to the subject of
each industrial base assessment to
ensure a comprehensive collection of
information.
This proposed rule would add ‘‘The
Government of the United States, of the
District of Columbia, of any
commonwealth, territory or possession
of the United States, or any department,
agency or commission thereof.’’ BIS has
concluded that inclusion of the
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additional entities is within its authority
under the DPA because the DPA
definition prefaces the list of entities
with the word ‘‘includes,’’ and because
inclusion of the additional entities is
necessary to achieve the purpose of the
statute.
Based on prior studies, BIS has
observed that the U.S. Government
makes a significant contribution to the
industrial base, whether in research,
technology development, testing,
manufacturing, repair and overhaul, or
trade development. As a result, the U.S.
Government is a significant source of
information regarding the industrial
base. Similarly, it is plausible that the
District of Columbia, commonwealths of
the United States and other territories
and agencies can be survey respondents,
and therefore have been included to
ensure the completeness of a survey
sample and corresponding assessment.
The regulatory definition also would
make clear that the term ‘‘corporation,
partnership, association, or any other
organized group of persons’’ is not
limited to commercial, for-profit
enterprises or publicly traded
corporations.
The definitions of the terms ‘‘initial
distribution letter’’ and ‘‘survey’’ each
describe a document used in the data
collection process. The definitions
describe those documents based on the
way they are used in current BIS
practice.
Supplement No. 1 to Part 702
Supplement No. 1 to part 702 would
provide information that BIS believes
would be helpful to persons who
receive a survey. This information
includes both a description of the
survey and a glossary of terms.
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Rulemaking Requirements
1. Executive Orders 13563 and 12866
direct agencies to assess all costs and
benefits of available regulatory
alternatives and, if regulation is
necessary, to select regulatory
approaches that maximize net benefits
(including potential economic,
environmental, public health and safety,
and other advantages; effects,
distributive impacts and equity).
Executive Order 13563 emphasizes the
importance of quantifying both costs
and benefits, of reducing costs, of
harmonizing rules, and of promoting
flexibility. This rule has been
designated a ‘‘significant regulatory
action,’’ although not economically
significant, as that term is defined in of
Executive Order 12866. Accordingly,
the rule has been reviewed by the Office
of Management and Budget (OMB).
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2. Notwithstanding any other
provision of law, no person is required
to respond to, nor shall any person be
subject to a penalty for failure to comply
with a collection of information subject
to the Paperwork Reduction Act of 1995
(44 U.S.C. 3501 et. seq.) unless that
collection of information displays a
currently valid OMB control number.
This rule does not contain a collection
of information that is subject to the
Paperwork Reduction Act. This rule sets
forth procedures related to BIS’s
administration of surveys pursuant to
§ 705 of the DPA (50 U.S.C. app. 2155).
Individual surveys that are subject to
the Paperwork Reduction Act will
display a currently valid OMB control
number.
3. This rule does not contain policies
with Federalism implications as that
term is defined in Executive Order
13132.
4. The Regulatory Flexibility Act
(RFA), as amended by the Small
Business Regulatory Enforcement
Fairness Act of 1996 (SBREFA), 5 U.S.C.
601 et seq., generally requires an agency
to prepare a regulatory flexibility
analysis of any rule subject to the notice
and comment rulemaking requirements
under the Administrative Procedure Act
(5 U.S.C. 553) or any other statute.
However, under § 605(b) of the RFA, if
the head of an agency certifies that a
rule will not have a significant impact
on a substantial number of small
entities, the RFA does not require the
agency to prepare a regulatory flexibility
analysis. Pursuant to § 605(b), the Chief
Counsel for Regulation, Department of
Commerce, submitted a memorandum
to the Chief Counsel for Advocacy,
Small Business Administration,
certifying that this proposed rule, if
promulgated, will not have a significant
impact on a substantial number of small
entities. The rationale for that
certification is as follows.
Impact
This proposed rule would set forth, in
a single part of the Code of Federal
Regulations, the Department of
Commerce’s authority under § 705 of the
DPA ‘‘to obtain information in order to
perform industry studies assessing the
capabilities of the United States
industrial base to support the national
defense.’’ Since the mid-1980s, BIS and
its predecessor organizations within the
Department of Commerce have
conducted such studies and required
survey responses based on the statute.
Section 705 of the DPA authorizes the
collection of the information. The
statute also authorizes the issuance of
subpoenas for the information and
authorizes the United States district
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courts to issue orders compelling
compliance with such subpoenas. It also
provides criminal penalties for failure to
comply with the government’s requests
for information. This proposed rule
would not require any person to supply
information that the person would not
be required to provide pursuant to the
statute.
This proposed rule would require that
surveys issued by BIS pursuant to § 705
be responded to by the deadline set
forth in the survey. The rule would
publicly state BIS’s existing internal
policies and standards for the granting
of both an extension of time to comply
with the requirement and exemptions
from compliance. To the extent that
publication of these policies and
standards in the Code of Federal
Regulations could be construed as a
change in the burden on small entities
or any other entities, the publication
would have to be deemed as a reduction
in burden because it facilitates access to
the standards by all parties.
This proposed rule also would set
forth the statutory standards for treating
information submitted in response to a
survey as confidential. It would reiterate
the statutory penalties for failure to
comply with a survey and for
unauthorized release of information that
§ 705 requires to be treated as
confidential.
This proposed rule would adopt the
statutory definition of ‘‘person’’ but also
add ‘‘[t]he Government of the United
States, of the District of Columbia, of
any commonwealth, territory or
possession of the United States, or any
department, agency or commission
thereof’’ to the definition. The term
‘‘person’’ is used in the statute and in
this proposed rule to represent those to
whom the requirements of the statute
and this proposed rule apply. BIS has
historically interpreted the statute to
apply to units of the U.S. Government
(including the District of Columbia
Government and the governments of the
territories and possessions) and does not
view this as a substantive change. For
purposes of this certification, the
addition is immaterial because the
government bodies that would be added
to the statutory definition by this
proposed rule are not small entities
under the definition provided in the
Small Business Regulatory Enforcement
Fairness Act of 1996.
Number of Small Entities
Surveys are one-time exercises used
to assess the state and/or capabilities of
a particular industry sector or
technology. Entities are selected for
participation based on their role in, or
relationship to, the industry sector or
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technology being assessed. Information
obtained during the course of any one
assessment may be relevant to
determining whether the current entity
supplying that information is a small
entity. However, the composition of
survey respondents varies dramatically
between industry studies due to the
complexity of each industry sector or
technology being assessed.
Consequently, BIS is unable to draw
from existing data to estimate the
number of small businesses
participating in future collections.
Accordingly, BIS is unable to determine
the number of small entities that would
be affected by this proposed rule.
Conclusion
Although BIS cannot predict the exact
number of small entities that will be
participating in any one survey, this
rule would not impose a significant
burden on any such small entities
because it would not require any
impacted entity to perform any action
that it is not already required to perform
pursuant to § 705 of the DPA.
List of Subjects in Part 702
Business and industry, Confidential
business information, Employment,
Penalties, National defense, Research,
Science and technology.
Accordingly, the National Security
Industrial Base Regulations (15 CFR
Chapter VII, Subchapter A) is proposed
to be amended as follows.
■ 1. Add Part 702 to read as follows:
Subchapter A—National Security
Industrial Base Regulations
Part 702—INDUSTRIAL BASE
SURVEYS—DATA COLLECTIONS
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Sec.
702.1 Introduction.
702.2 Scope and purpose of surveys—
avoiding duplicative requests for
information.
702.3 Confidential information.
702.4 Requirement to comply with surveys
or other requests for information.
702.5 Consequences of failure to comply.
702.6 Definitions.
Supplement No. 1 to Part 702—General
Survey Information.
Authority: 50 U.S.C. app. 2061 et seq., E.O.
13603, 77 FR 16651, 3 CFR, 2012 Comp., p.
225.
§ 702.1
Introduction.
In accordance with 50 U.S.C. app.
2155, the Bureau of Industry and
Security (BIS) may obtain such
information from, require such reports
and the keeping of such records by,
make an inspection of the books,
records, and other writings, premises or
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property of, take the sworn testimony of
and administer oaths and affirmations
to, any person as may be necessary or
appropriate, in its discretion, to the
enforcement or the administration of its
authorities and responsibilities under
the Defense Production Act of 1950 as
amended (DPA) and any regulations or
orders issued thereunder. BIS’s
authorities under the DPA (50 U.S.C.
app. 2061 et seq.) include authority to
collect data via surveys to perform
industry studies assessing the
capabilities of the United States
industrial base to support the national
defense and develop policy
recommendations to improve both the
international competitiveness of specific
domestic industries and their ability to
meet national defense program needs.
§ 702.2 Scope and purpose of surveys—
avoiding duplicative requests for
information.
(a) BIS will not send any survey to
any person for completion unless the
scope and purpose of the survey have
been established, that scope and
purpose are consistent with BIS’s
authorities under the DPA, and the data
requested by the survey does not
duplicate adequate and authoritative
data already available to BIS from a
Federal or other authoritative source.
(b) BIS personnel of appropriate
competence and authority will ensure
that the requirements of paragraph (a)
are met.
(c) This section shall not be construed
as limiting the criteria that BIS may
consider in determining whether to
proceed with a survey. This paragraph
shall not be construed as replacing or in
any way modifying the requirements of
the Paperwork Reduction Act (44 U.S.C.
3501 et seq.).
§ 702.3
Confidential information.
This section implements § 705(d) of
the DPA.
(a) BIS deems all information
submitted in response to a survey issued
pursuant to this part to be confidential.
(b) Any person submitting
information in response to a survey
issued pursuant to this part may request
confidential treatment of that
information.
(c) The President’s authority under
the DPA to protect confidential
information has been delegated to the
Under Secretary for Industry and
Security. The information described in
paragraphs (a) and (b) shall not be
published or disclosed unless the Under
Secretary for Industry and Security
determines that the withholding thereof
is contrary to the interest of the national
defense.
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(d) Any person convicted of willfully
violating the prohibition in paragraph
(c) may be fined not more than $10,000
or imprisoned for not more than one
year, or both.
§ 702.4 Requirement to comply with
surveys or other requests for information.
(a) Requirement to comply. Every
person who receives a survey or other
request for information issued pursuant
to this part must submit a complete and
adequate response to BIS within the
time frame stated on the initial
distribution letter or other request for
information. Survey response
information that does not adhere to the
survey question criteria or that contains
only aggregate information in place of
specified information will be treated as
inadequate and therefore noncompliant.
BIS may exempt persons from this
requirement for the reasons in
paragraph (b) of this section, or grant
extensions of time to comply as set forth
in paragraph (c) of this section.
Submitting a request to BIS for an
exemption or an extension of time for
completion does not suspend the initial
deadline required by BIS (or any
extended deadline subsequently granted
by BIS). Thus, persons who request an
exemption or extension of time are
advised to proceed as if the response is
required by the deadline until advised
otherwise by BIS.
(b) Grounds for exemption. (1) An
exemption from the requirements of this
section may be granted if the person
receiving the survey or other request for
information:
(i) Has no physical presence in the
United States of any kind;
(ii) Does not provide, produce,
distribute, utilize, procure, research,
develop, consult or advise on, or have
any other direct or indirect association
with the materials, products, services or
technology that are within the scope of
the survey;
(iii) Has ceased business operations
more than 12 months prior to receipt of
the survey;
(iv) Has been in business for less than
one year; or
(v) BIS determines that extenuating
circumstances exist that make
responding impractical.
(2) BIS may also grant an exemption
if, based on the totality of the
circumstances, it concludes that
compliance would be impractical and/
or that requiring compliance would be
unduly time intensive.
(3) Existence of a pre-existing private
non-disclosure agreement or
information sharing agreement between
a person and another party (e.g.,
customers, suppliers, etc.), does not
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exempt a person from the obligation to
comply with and complete a survey.
The authority to conduct the survey and
comply with the survey is derived from
the DPA, and that statutory obligation to
comply supersedes any private
agreement.
(c) Extensions of time to complete. A
person who receives a survey or other
request for information may request an
extension of time to submit the
complete response to BIS. BIS may grant
such an extension of time, if, in its
judgment, circumstances are such that
additional time reasonably is needed,
the extension would not jeopardize
timely completion of BIS’s overall
analysis, and the person is making
reasonable progress towards completing
the survey or response to the other
request for information. Generally,
extensions will be for no more than two
weeks. A person who receives a survey
or other request for information may
request successive extensions if the
person believes that it continues to have
a legitimate need for additional time to
complete the survey. BIS will not grant
extensions that would jeopardize the
performance and timely completion of
its industrial base assessments.
(d) Procedure for requesting
exemptions or extensions of time.
Requests for exemptions or extensions
of time must be made to BIS at the
telephone number, email address or BIS
physical address provided in the initial
distribution letter for a survey or in the
other request for information. A request
for an exemption must provide factual
information and documentation that are
adequate for BIS to determine that one
or more of the criteria stated in
paragraph (b) or (c) are met.
(e) Responses that are incomplete or
inadequate. BIS may return responses
that are incomplete or inadequate to the
person for prompt completion. BIS will
specify the required period of time
permitted for completion and
submission of the revised survey.
asabaliauskas on DSK5VPTVN1PROD with PROPOSALS
§ 702.5 Consequences of failure to
comply.
(a) Civil. If any person fails to comply
with the requirements of § 702.4, BIS
may issue a subpoena requiring that
person to submit the information called
for in the survey. In the case of
contumacy or refusal to obey such a
subpoena, the U.S. Government may
apply for an order by the United States
district court in a district where that
person resides or transacts business that
would compel the person to submit the
completed survey.
(b) Criminal. In accordance with 50
U.S.C. app. 2155, any person who
willfully fails to comply with § 702.4,
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may, upon conviction, be fined not
more than $10,000 or imprisoned not
more than one year, or both.
§ 702.6
Definitions.
The definitions in this section apply
throughout this part.
Confidential. A description of
information that is subject to the
disclosure prohibitions of the DPA (50
U.S.C. app. 2155(d)).
Initial distribution letter. A letter that
BIS sends to a person that has been
identified by the U.S. Government as a
supplier or customer of materials,
products or services used for activities
of the industry that is the focus of a
survey. The letter describes the survey’s
primary objectives, how survey results
will assist the U.S. Government, and the
confidential treatment of the
information submitted. The letter also
provides BIS contact information.
Person. The term ‘‘person’’ includes:
(a) An individual, corporation,
partnership, association, or any other
organized group of persons, or legal
successor or representative thereof;
(b) Any State or local government or
agency thereof;
(c) The Government of the United
States, of the District of Columbia, of
any commonwealth, territory or
possession of the United States, or any
department, agency or commission
thereof.
Note to the definition of ‘‘person’’.
Paragraph (a) of this definition is not
limited to commercial or for-profit
organizations. For example, the term
‘‘any other organized group of persons’’
may encompass labor unions, academic
institutions, charitable organizations or
any group of persons who are organized
in some manner. The term corporation
is not limited to publicly traded
corporations or corporations that exist
for the purpose of making a profit.
Survey. A questionnaire or other
request for information that collects
detailed information and data to support
both the assessment of a particular
industrial sector or technology and the
development of a corresponding study.
Supplement No. 1 to Part 702—General
Survey Information
This supplement provides general
information about surveys and the content of
the typical survey. The content of this
supplement is purely in example of a typical
survey, and in no way limits the content that
may appear in a specific Bureau of Industry
and Security (BIS)-issued survey. Procedures
and content vary from survey to survey, and
as such, there is no set template to follow.
Nonetheless, BIS is offering this information
as a basic guide to some elements of a survey.
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Frm 00021
Fmt 4702
Sfmt 4702
Survey Structure
Most surveys include the following
sections: Cover Page; Table of Contents;
General Instructions; Glossary of Terms;
Organizational Information, and sectorspecific sections.
—The cover page typically includes the title
of the survey, its scope, an explanation of
the legal requirement to comply, the
burden estimate for compliance with the
survey, the Office of Management and
Budget (OMB) control number, and the
survey date of expiration.
—The General Instructions section normally
includes process steps necessary for a
person’s survey submittal. These include
but are not limited to instructions for
survey completion, survey support staff
point-of-contact information, the name and
address of the presiding BIS official, and
instructions for both survey certification
and submittal.
—The Glossary of Terms section explains
terms contained in the survey. Terms
contained in the survey may be unique to
the subject matter of the industry
assessment, and therefore may change in
meaning from survey to survey. Therefore,
it is important to follow the specific
instructions and defined terms contained
in the specific survey you receive,
regardless of any previous survey you
might have completed.
—The Organization Information section
requests information related to the person
in receipt of the survey, including address
information, the source level of response
(e.g., facility, business unit, division,
corporate consolidated, etc.), point of
contact details, and other pertinent contact
information.
The survey is generally organized in a
question and answer format and is presented
on an electronic survey system. Each survey
is specially tailored to collect the specific
information requested. Therefore, specific
detailed information is what should be
submitted in response to a survey requesting
such information.
—For example, if we ask for a listing of your
customers that order widget A, your
response should not be a listing of your
entire customer base. Only the information
pertaining to customers’ ordering widget A
is responsive to that kind of question.
Also note that your reply to a survey request
is compulsory, unless you meet the criteria
for exemption set forth in the body of the
regulation. Therefore, any non-disclosure
agreements or similar agreements you may
have with your customers or clients are not
applicable to a survey’s request for
information. Compliance with the survey is
required by the DPA. Accordingly,
compliance with that statutory requirement
is paramount to any private agreement you
have with your customers or other parties.
In addition to the aforementioned sections,
each survey contains sections tailored to the
specific scope of the study, including but not
limited to Facility Locations, Products and
Services, Inventories, Suppliers and
Customers, Challenges and Organizational
Outlook, Employment, Operations, Financial
Statements, Sales, Research and
Development, and Capital Expenditures.
E:\FR\FM\03MRP1.SGM
03MRP1
Federal Register / Vol. 80, No. 41 / Tuesday, March 3, 2015 / Proposed Rules
Examples of Survey Terms
Certification: A section of the survey in
which a person (an authorizing official)
certifies that the information supplied in
response to the survey is complete and
correct, to the best of the person’s knowledge.
Facility: A building or the minimum
complex of buildings or parts of buildings in
which a person operates to serve a particular
function, producing revenue and incurring
costs for the person. A facility may produce
an item of tangible or intangible property or
may perform a service. It may encompass a
floor or group of floors within a building, a
single building, or a group of buildings or
structures. Often, a facility is a group of
related locations at which employees work,
together constituting a profit-and-loss center
for the person, and it may be identified by
a unique Dun and Bradstreet number.
Sole source: An organization that is the
only source for the supply of parts,
components, materials, or services. No
alternative U.S. or non-U.S. based supplier
exists other than the current supplier.
Survey template: The data collection
instrument supplied by BIS to persons by
which survey information is recorded and
submitted to BIS. The survey is generally
organized in a question and answer format
and is presented on an electronic survey
system.
Supplier: An entity from which your
organization obtains inputs. A supplier may
be another firm with which you have a
contractual relationship, or it may be another
facility owned by the same parent
organization. The inputs may be materials,
products or services.
Dated: February 24, 2015.
Kevin J. Wolf,
Assistant Secretary for Export
Administration.
[FR Doc. 2015–04299 Filed 3–2–15; 8:45 am]
BILLING CODE 3510–01–P
viticultural area and the larger,
multicounty Central Coast viticultural
area. TTB designates viticultural areas
to allow vintners to better describe the
origin of their wines and to allow
consumers to better identify wines they
may purchase. TTB invites comments
on this proposed addition to its
regulations.
Comments must be received by
May 4, 2015.
ADDRESSES: Please send your comments
on this document to one of the
following addresses:
• Internet: https://www.regulations.gov
(via the online comment form for this
document as posted within Docket No.
TTB–2015–0004 at ‘‘Regulations.gov,’’
the Federal e-rulemaking portal);
• U.S. Mail: Director, Regulations and
Rulings Division, Alcohol and Tobacco
Tax and Trade Bureau, 1310 G Street
NW., Box 12, Washington, DC 20005; or
• Hand delivery/courier in lieu of
mail: Alcohol and Tobacco Tax and
Trade Bureau, 1310 G Street NW., Suite
200–E, Washington, DC 20005.
See the Public Participation section of
this document for specific instructions
and requirements for submitting
comments, and for information on how
to request a public hearing or view or
request copies of the petition and
supporting materials.
FOR FURTHER INFORMATION CONTACT:
Karen A. Thornton, Regulations and
Rulings Division, Alcohol and Tobacco
Tax and Trade Bureau, 1310 G Street
NW., Box 12, Washington, DC 20005;
phone 202–453–1039, ext. 175.
SUPPLEMENTARY INFORMATION:
DATES:
Background on Viticultural Areas
TTB Authority
DEPARTMENT OF THE TREASURY
Alcohol and Tobacco Tax and Trade
Bureau
27 CFR Part 9
[Docket No. TTB–2015–0004; Notice No.
148]
RIN 1513–AC11
Proposed Establishment of the Los
Olivos District Viticultural Area
Alcohol and Tobacco Tax and
Trade Bureau, Treasury.
ACTION: Notice of proposed rulemaking.
asabaliauskas on DSK5VPTVN1PROD with PROPOSALS
AGENCY:
The Alcohol and Tobacco Tax
and Trade Bureau (TTB) proposes to
establish the approximately 22,820-acre
‘‘Los Olivos District’’ viticultural area in
Santa Barbara County, California. The
proposed viticultural area lies entirely
within the Santa Ynez Valley
SUMMARY:
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17:16 Mar 02, 2015
Jkt 235001
Section 105(e) of the Federal Alcohol
Administration Act (FAA Act), 27
U.S.C. 205(e), authorizes the Secretary
of the Treasury to prescribe regulations
for the labeling of wine, distilled spirits,
and malt beverages. The FAA Act
provides that these regulations should,
among other things, prohibit consumer
deception and the use of misleading
statements on labels and ensure that
labels provide the consumer with
adequate information as to the identity
and quality of the product. The Alcohol
and Tobacco Tax and Trade Bureau
(TTB) administers the FAA Act
pursuant to section 1111(d) of the
Homeland Security Act of 2002,
codified at 6 U.S.C. 531(d). The
Secretary has delegated various
authorities through Treasury
Department Order 120–01 (Revised),
dated December 10, 2013, to the TTB
Administrator to perform the functions
PO 00000
Frm 00022
Fmt 4702
Sfmt 4702
11355
and duties in the administration and
enforcement of this law.
Part 4 of the TTB regulations (27 CFR
part 4) authorizes TTB to define
viticultural areas and sets out
requirements for the use of their names
as appellations of origin on wine labels
and in wine advertisements. Part 9 of
the TTB regulations (27 CFR part 9) sets
forth standards for the preparation and
submission to TTB of petitions for the
establishment or modification of
American viticultural areas (AVAs) and
lists the approved AVAs.
Definition
Section 4.25(e)(1)(i) of the TTB
regulations (27 CFR 4.25(e)(1)(i)) defines
a viticultural area for American wine as
a delimited grape-growing region having
distinguishing features, as described in
part 9 of the regulations, and a name
and a delineated boundary, as
established in part 9 of the regulations.
These designations allow vintners and
consumers to attribute a given quality,
reputation, or other characteristic of a
wine made from grapes grown in an area
to the wine’s geographic origin. The
establishment of AVAs allows vintners
to describe more accurately the origin of
their wines to consumers and helps
consumers to identify wines they may
purchase. Establishment of an AVA is
neither an approval nor an endorsement
by TTB of the wine produced in that
area.
Requirements
Section 4.25(e)(2) of the TTB
regulations (27 CFR 4.25(e)(2)) outlines
the procedure for proposing an AVA
and provides that any interested party
may petition TTB to establish a grapegrowing region as an AVA. Section 9.12
of the TTB regulations (27 CFR 9.12)
prescribes the standards for petitions
requesting the establishment or
modification of AVAs. Petitions to
establish an AVA must include the
following:
• Evidence that the region within the
proposed AVA boundary is nationally
or locally known by the AVA name
specified in the petition;
• An explanation of the basis for
defining the boundary of the proposed
AVA;
• A narrative description of the
features of the proposed AVA affecting
viticulture, such as climate, geology,
soils, physical features, and elevation,
that make the proposed AVA distinctive
and distinguish it from adjacent areas
outside the proposed viticultural AVA;
• The appropriate United States
Geological Survey (USGS) map(s)
showing the location of the proposed
AVA, with the boundary of the
E:\FR\FM\03MRP1.SGM
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Agencies
[Federal Register Volume 80, Number 41 (Tuesday, March 3, 2015)]
[Proposed Rules]
[Pages 11350-11355]
From the Federal Register Online via the Government Printing Office [www.gpo.gov]
[FR Doc No: 2015-04299]
=======================================================================
-----------------------------------------------------------------------
DEPARTMENT OF COMMERCE
Bureau of Industry and Security
15 CFR Part 702
[Docket No. 140501396-4396-01]
RIN 0694-AG17
U.S. Industrial Base Surveys Pursuant to the Defense Production
Act of 1950
AGENCY: Bureau of Industry and Security, Commerce.
ACTION: Proposed rule
-----------------------------------------------------------------------
SUMMARY: This proposed rule would set forth the policies and procedures
of the Bureau of Industry and Security (BIS) for conducting surveys to
obtain information in order to perform industry studies assessing the
U.S. industrial base to support the national defense pursuant to the
Defense Production Act of 1950, as amended. Specifically, this proposed
rule would provide a description of: BIS's authority to issue surveys;
the purpose for the surveys and the manner in which such surveys are
developed; the confidential treatment of submitted information; and the
penalties for non-compliance with surveys. This rule is intended to
facilitate compliance with surveys, thereby resulting in stronger and
more complete assessments of the U.S. industrial base.
DATES: Comments must be received no later than May 4, 2015.
FOR FURTHER INFORMATION CONTACT: Jason Bolton, Trade and Industry
Analyst, Office of Technology Evaluation, phone: 202-482-5936 email:
jason.bolton@bis.doc.gov or Brad Botwin, Director, Industrial Base
Studies, Office of Technology Evaluation, phone: 202-482-4060 email:
brad.botwin@bis.doc.gov.
SUPPLEMENTARY INFORMATION:
Background
Pursuant to authorities under Sec. 705 of the Defense Production
Act of 1950 as amended (DPA) (50 U.S.C. app. 2155) and Sec. 104 of
Executive Order 13603 of March 16, 2012 (National Defense Resources
Preparedness, 77 FR 16651, 3 CFR, 2012 Comp., p. 225), the Bureau of
Industry and Security (BIS) conducts studies that assess the
capabilities of the U.S. industrial base to support the national
defense. To produce these studies, BIS may issue surveys to collect
detailed information related to the health and competitiveness of the
U.S. industrial base from government sources and private individuals or
organizations.
This proposed rule sets forth procedures intended to facilitate the
accurate and timely completion of surveys issued by BIS to collect data
for these studies. This rule sets forth in a single part of the Code of
Federal Regulations the information about BIS's authority to conduct
the studies, the authority to issue surveys to gather data in support
of the studies, the purpose of the surveys and the manner in which such
surveys are developed, the confidential treatment of submitted
information, and the penalties for non-compliance with surveys.
Additionally, this rule explains BIS's procedures for verifying
that the scope and purpose of the surveys are well defined, and assures
that the surveys do not solicit data that duplicates adequate and
authoritative data that is available to BIS from any federal or other
responsible agency. A survey may require the submission of information
similar or identical to information possessed by another federal agency
but that is not available to BIS.
Based on requests it receives from U.S. Government agencies, BIS
produces studies to develop findings and policy recommendations for the
purpose of improving the competitiveness of specific domestic
industries and technologies critical to meeting national defense and
essential civilian requirements. These studies may require surveys to
collect relevant data and assessments of that data and other
information available to BIS.
BIS, in cooperation with the requesting agency, selects the persons
to be surveyed based on the likelihood that they will have information
relevant to a study. That likelihood is related to the person's
association with the industry sector, material, product, service or
technology that is the subject of the study. That association may be
based on factors such as the person's role in directly or indirectly
providing, producing, distributing, utilizing, procuring, researching,
developing, consulting or advising on, the industry sector, material,
product, service or technology that is the subject of the study.
Whether a person's association with the industry sector, material,
product, service or technology being assessed is proximate or remote
does not determine whether that person's association is sufficient for
inclusion in the survey. For example, information about a supplier of
raw materials or components that is several transactions removed from
the production of the product that is the subject of a study may be
relevant to assessing the capabilities of the U.S. industrial base to
supply the product to support the national defense. In such a
situation, the supplier would be included in the survey. The nature of
the person from whom the information is sought also does not determine
whether that person's association with the industry sector, material,
product, service or technology at issue is sufficient for inclusion in
the survey. Surveys may require information from businesses organized
for profit, non-profit organizations, academic institutions and
government agencies.
To be useful, a study must be comprehensive, accurate and focused
on the relevant industry sector, material, product, service or
technology. Therefore, surveys may require information about
employment, research and development, sources of supply, manufacturing
processes, customers, business strategy, finances and other factors
affecting the industry's health and competitiveness. To properly focus
the survey on the industry sector, material, product, service or
technology being assessed, BIS may request information about a
corporation as a whole or information about one or more specified units
or individual activities of that corporation. The DPA provides both a
civil remedy and criminal penalties that may be used when recipients of
surveys do not supply the information sought.
BIS deems the information supplied in response to survey requests
to be confidential and is prohibited by law from publishing or
disclosing such information unless the Under Secretary for Industry and
Security determines that withholding the information is contrary to the
interest of the national defense. The authority to make this
determination, which Sec. 705(d) of the DPA gives to the President,
has been delegated to relevant agencies, including the Secretary of
Commerce, by Sec. 802 of Executive Order 13603. The Secretary of
Commerce re-delegated this authority to the Under Secretary for
Industry and Security. The DPA provides criminal penalties for any
person who willfully violates its prohibition on publication or
disclosure.
Section by Section Description of the Proposed Rule
This proposed rule would create a new part in Title 15, Chapter
VII,
[[Page 11351]]
Subchapter A of the Code of Federal Regulations to be designated as 15
CFR part 702. This new part would be devoted exclusively to BIS's
collection of information under Sec. 705 of the DPA (50 U.S.C. app.
2155). Placing the new part in Subchapter A would promote an orderly
and logical regulatory structure because all other regulations
implementing BIS authorities related to the DPA are contained in that
subchapter.
Section 702.1
Section 702.1 would set forth a general description of BIS'
authority to collect information needed to complete the surveys. The
survey responses assist BIS in determining the capabilities of the
industrial base to support the national defense and to develop policy
recommendations to improve both the international competitiveness of
specific domestic industries and their ability to meet national defense
needs.
Section 702.2
Section 702.2 would implement the requirement to publish
regulations found in Sec. 705 of the DPA (50 U.S.C. app. 2155(a)) by
requiring BIS personnel of appropriate competence and authority to
ensure that before a survey is sent to any person for completion; (1)
the scope and purpose of a survey have been established, (2) the scope
and purpose are consistent with BIS's authorities under the DPA, and
(3) the data requested by the survey does not duplicate adequate and
authoritative data available to BIS from a federal or other
authoritative source. A survey may require information that is similar
or identical to information possessed by other federal agencies but not
available to BIS. The section does not limit the factors that may be
considered in deciding whether to conduct a survey nor does it modify
or replace the requirements of the Paperwork Reduction Act. In
addition, all surveys are reviewed by BIS and by the Office of
Management and Budget (OMB) pursuant to the Paperwork Reduction Act
before they are distributed. The OMB review process provides additional
assurance that surveys are designed to collect only information deemed
necessary to meet the scope and purpose of a study.
Section 702.3
Section 702.3 would address the confidentiality requirements
imposed by Sec. 705(d) of the DPA (50 U.S.C. app. 2155(d)) and, in
accordance with that section, would provide two procedures by which the
restrictions on disclosure in Sec. 705(d) would be invoked. First,
consistent with its current practice, BIS would deem all information
submitted in response to a survey to be confidential. Second, a person
submitting a response to a survey may request confidential treatment of
the information submitted. Although the second procedure is likely to
be redundant of the first, the statute prohibits disclosure if either
the government deems the information to be confidential or if the
person furnishing the information requests confidential treatment. BIS
concludes that both procedures should be included in the regulations to
be consistent with the statute. Additionally, Sec. 702.3 would note
that confidential information shall not be published or disclosed
unless the Under Secretary for Industry and Security determines that
withholding the information is contrary to the interest of the national
defense. The statutory authority of the President to make this
determination has been delegated to the Under Secretary for Industry
and Security. This section also repeats the penalties that the statute
authorizes for persons convicted of willfully violating the prohibition
on disclosure.
Section 702.4
Section 702.4 would require timely, complete and adequate responses
to surveys. Specifically, the section would require that survey
responses be returned to BIS within the time frame stated on the
initial distribution letter or other request for information. The
section would treat a response as ``inadequate'' if it provides
information that is not responsive to the questions asked or if it
provides aggregated information when specific information was
requested.
Section 702.4 would set forth the criteria by which BIS may grant
either an exemption from complying with the survey requirement or an
extension of time to comply. The grounds for granting an exemption or
an extension are limited and generally result when BIS concludes that
the survey recipient lacks information deemed relevant to the survey or
when compliance with the requirement would be unduly burdensome.
Section 702.4 would make clear that the deadline for complying with
a survey is not suspended by submitting a request for an exemption or
extension of time to comply.
Finally, Sec. 702.4 would provide that BIS may return responses
that are incomplete or inadequate and specify a due date for a complete
and adequate response.
Section 702.5
Section 702.5 would set forth the consequences of failure to comply
with a survey or other request for information. These consequences are
established by Sec. 705(a) and (c) of the DPA (50 U.S.C. app. 2155(a)
and (c)). If a person does not comply with a survey, BIS may serve a
subpoena upon that person to compel compliance. If the person still
does not comply, the government may apply to the U.S. district court in
any district in which the person is found, resides or transacts
business for an order requiring such person to comply. The district
court has authority to punish any failure to comply with the order as
contempt of court. Persons who are convicted of willfully failing to
comply with a survey or other request for information may be fined not
more than $10,000 or imprisoned for not more than one year, or both.
Section 702.6
Section 702.6 would define certain terms used in part 702.
The word ``confidential'' would be defined in terms of Sec. 705(d)
of the DPA, thereby distinguishing its use in this rule from its use in
connection with the classification of information for national security
purposes as set forth in Executive Order 13526 of December 29, 2009,
Classified National Security Information (75 FR 707; 3 CFR, 2010 Comp.,
p. 298).
The definition of the term ``person'' would be based on the
definition of ``person'' in Sec. 702 of the DPA (50 U.S.C. app. 2152)
with some additions. The DPA definition reads: ``The term `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.'' Use of
the word ``includes'' in the statutory definition implies that the list
following that word is not exhaustive. BIS concludes that the use of
``includes'' indicates that Congress recognized that the agency
implementing the DPA would need discretion to identify the types of
entities that would likely possess information relevant to the subject
of each industrial base assessment to ensure a comprehensive collection
of information.
This proposed rule would add ``The Government of the United States,
of the District of Columbia, of any commonwealth, territory or
possession of the United States, or any department, agency or
commission thereof.'' BIS has concluded that inclusion of the
[[Page 11352]]
additional entities is within its authority under the DPA because the
DPA definition prefaces the list of entities with the word
``includes,'' and because inclusion of the additional entities is
necessary to achieve the purpose of the statute.
Based on prior studies, BIS has observed that the U.S. Government
makes a significant contribution to the industrial base, whether in
research, technology development, testing, manufacturing, repair and
overhaul, or trade development. As a result, the U.S. Government is a
significant source of information regarding the industrial base.
Similarly, it is plausible that the District of Columbia, commonwealths
of the United States and other territories and agencies can be survey
respondents, and therefore have been included to ensure the
completeness of a survey sample and corresponding assessment.
The regulatory definition also would make clear that the term
``corporation, partnership, association, or any other organized group
of persons'' is not limited to commercial, for-profit enterprises or
publicly traded corporations.
The definitions of the terms ``initial distribution letter'' and
``survey'' each describe a document used in the data collection
process. The definitions describe those documents based on the way they
are used in current BIS practice.
Supplement No. 1 to Part 702
Supplement No. 1 to part 702 would provide information that BIS
believes would be helpful to persons who receive a survey. This
information includes both a description of the survey and a glossary of
terms.
Rulemaking Requirements
1. Executive Orders 13563 and 12866 direct agencies to assess all
costs and benefits of available regulatory alternatives and, if
regulation is necessary, to select regulatory approaches that maximize
net benefits (including potential economic, environmental, public
health and safety, and other advantages; effects, distributive impacts
and equity). Executive Order 13563 emphasizes the importance of
quantifying both costs and benefits, of reducing costs, of harmonizing
rules, and of promoting flexibility. This rule has been designated a
``significant regulatory action,'' although not economically
significant, as that term is defined in of Executive Order 12866.
Accordingly, the rule has been reviewed by the Office of Management and
Budget (OMB).
2. Notwithstanding any other provision of law, no person is
required to respond to, nor shall any person be subject to a penalty
for failure to comply with a collection of information subject to the
Paperwork Reduction Act of 1995 (44 U.S.C. 3501 et. seq.) unless that
collection of information displays a currently valid OMB control
number. This rule does not contain a collection of information that is
subject to the Paperwork Reduction Act. This rule sets forth procedures
related to BIS's administration of surveys pursuant to Sec. 705 of the
DPA (50 U.S.C. app. 2155). Individual surveys that are subject to the
Paperwork Reduction Act will display a currently valid OMB control
number.
3. This rule does not contain policies with Federalism implications
as that term is defined in Executive Order 13132.
4. The Regulatory Flexibility Act (RFA), as amended by the Small
Business Regulatory Enforcement Fairness Act of 1996 (SBREFA), 5 U.S.C.
601 et seq., generally requires an agency to prepare a regulatory
flexibility analysis of any rule subject to the notice and comment
rulemaking requirements under the Administrative Procedure Act (5
U.S.C. 553) or any other statute. However, under Sec. 605(b) of the
RFA, if the head of an agency certifies that a rule will not have a
significant impact on a substantial number of small entities, the RFA
does not require the agency to prepare a regulatory flexibility
analysis. Pursuant to Sec. 605(b), the Chief Counsel for Regulation,
Department of Commerce, submitted a memorandum to the Chief Counsel for
Advocacy, Small Business Administration, certifying that this proposed
rule, if promulgated, will not have a significant impact on a
substantial number of small entities. The rationale for that
certification is as follows.
Impact
This proposed rule would set forth, in a single part of the Code of
Federal Regulations, the Department of Commerce's authority under Sec.
705 of the DPA ``to obtain information in order to perform industry
studies assessing the capabilities of the United States industrial base
to support the national defense.'' Since the mid-1980s, BIS and its
predecessor organizations within the Department of Commerce have
conducted such studies and required survey responses based on the
statute. Section 705 of the DPA authorizes the collection of the
information. The statute also authorizes the issuance of subpoenas for
the information and authorizes the United States district courts to
issue orders compelling compliance with such subpoenas. It also
provides criminal penalties for failure to comply with the government's
requests for information. This proposed rule would not require any
person to supply information that the person would not be required to
provide pursuant to the statute.
This proposed rule would require that surveys issued by BIS
pursuant to Sec. 705 be responded to by the deadline set forth in the
survey. The rule would publicly state BIS's existing internal policies
and standards for the granting of both an extension of time to comply
with the requirement and exemptions from compliance. To the extent that
publication of these policies and standards in the Code of Federal
Regulations could be construed as a change in the burden on small
entities or any other entities, the publication would have to be deemed
as a reduction in burden because it facilitates access to the standards
by all parties.
This proposed rule also would set forth the statutory standards for
treating information submitted in response to a survey as confidential.
It would reiterate the statutory penalties for failure to comply with a
survey and for unauthorized release of information that Sec. 705
requires to be treated as confidential.
This proposed rule would adopt the statutory definition of
``person'' but also add ``[t]he Government of the United States, of the
District of Columbia, of any commonwealth, territory or possession of
the United States, or any department, agency or commission thereof'' to
the definition. The term ``person'' is used in the statute and in this
proposed rule to represent those to whom the requirements of the
statute and this proposed rule apply. BIS has historically interpreted
the statute to apply to units of the U.S. Government (including the
District of Columbia Government and the governments of the territories
and possessions) and does not view this as a substantive change. For
purposes of this certification, the addition is immaterial because the
government bodies that would be added to the statutory definition by
this proposed rule are not small entities under the definition provided
in the Small Business Regulatory Enforcement Fairness Act of 1996.
Number of Small Entities
Surveys are one-time exercises used to assess the state and/or
capabilities of a particular industry sector or technology. Entities
are selected for participation based on their role in, or relationship
to, the industry sector or
[[Page 11353]]
technology being assessed. Information obtained during the course of
any one assessment may be relevant to determining whether the current
entity supplying that information is a small entity. However, the
composition of survey respondents varies dramatically between industry
studies due to the complexity of each industry sector or technology
being assessed. Consequently, BIS is unable to draw from existing data
to estimate the number of small businesses participating in future
collections. Accordingly, BIS is unable to determine the number of
small entities that would be affected by this proposed rule.
Conclusion
Although BIS cannot predict the exact number of small entities that
will be participating in any one survey, this rule would not impose a
significant burden on any such small entities because it would not
require any impacted entity to perform any action that it is not
already required to perform pursuant to Sec. 705 of the DPA.
List of Subjects in Part 702
Business and industry, Confidential business information,
Employment, Penalties, National defense, Research, Science and
technology.
Accordingly, the National Security Industrial Base Regulations (15
CFR Chapter VII, Subchapter A) is proposed to be amended as follows.
0
1. Add Part 702 to read as follows:
Subchapter A--National Security Industrial Base Regulations
Part 702--INDUSTRIAL BASE SURVEYS--DATA COLLECTIONS
Sec.
702.1 Introduction.
702.2 Scope and purpose of surveys--avoiding duplicative requests
for information.
702.3 Confidential information.
702.4 Requirement to comply with surveys or other requests for
information.
702.5 Consequences of failure to comply.
702.6 Definitions.
Supplement No. 1 to Part 702--General Survey Information.
Authority: 50 U.S.C. app. 2061 et seq., E.O. 13603, 77 FR 16651,
3 CFR, 2012 Comp., p. 225.
Sec. 702.1 Introduction.
In accordance with 50 U.S.C. app. 2155, the Bureau of Industry and
Security (BIS) may obtain such information from, require such reports
and the keeping of such records by, make an inspection of the books,
records, and other writings, premises or property of, take the sworn
testimony of and administer oaths and affirmations to, any person as
may be necessary or appropriate, in its discretion, to the enforcement
or the administration of its authorities and responsibilities under the
Defense Production Act of 1950 as amended (DPA) and any regulations or
orders issued thereunder. BIS's authorities under the DPA (50 U.S.C.
app. 2061 et seq.) include authority to collect data via surveys to
perform industry studies assessing the capabilities of the United
States industrial base to support the national defense and develop
policy recommendations to improve both the international
competitiveness of specific domestic industries and their ability to
meet national defense program needs.
Sec. 702.2 Scope and purpose of surveys--avoiding duplicative
requests for information.
(a) BIS will not send any survey to any person for completion
unless the scope and purpose of the survey have been established, that
scope and purpose are consistent with BIS's authorities under the DPA,
and the data requested by the survey does not duplicate adequate and
authoritative data already available to BIS from a Federal or other
authoritative source.
(b) BIS personnel of appropriate competence and authority will
ensure that the requirements of paragraph (a) are met.
(c) This section shall not be construed as limiting the criteria
that BIS may consider in determining whether to proceed with a survey.
This paragraph shall not be construed as replacing or in any way
modifying the requirements of the Paperwork Reduction Act (44 U.S.C.
3501 et seq.).
Sec. 702.3 Confidential information.
This section implements Sec. 705(d) of the DPA.
(a) BIS deems all information submitted in response to a survey
issued pursuant to this part to be confidential.
(b) Any person submitting information in response to a survey
issued pursuant to this part may request confidential treatment of that
information.
(c) The President's authority under the DPA to protect confidential
information has been delegated to the Under Secretary for Industry and
Security. The information described in paragraphs (a) and (b) shall not
be published or disclosed unless the Under Secretary for Industry and
Security determines that the withholding thereof is contrary to the
interest of the national defense.
(d) Any person convicted of willfully violating the prohibition in
paragraph (c) may be fined not more than $10,000 or imprisoned for not
more than one year, or both.
Sec. 702.4 Requirement to comply with surveys or other requests for
information.
(a) Requirement to comply. Every person who receives a survey or
other request for information issued pursuant to this part must submit
a complete and adequate response to BIS within the time frame stated on
the initial distribution letter or other request for information.
Survey response information that does not adhere to the survey question
criteria or that contains only aggregate information in place of
specified information will be treated as inadequate and therefore
noncompliant. BIS may exempt persons from this requirement for the
reasons in paragraph (b) of this section, or grant extensions of time
to comply as set forth in paragraph (c) of this section. Submitting a
request to BIS for an exemption or an extension of time for completion
does not suspend the initial deadline required by BIS (or any extended
deadline subsequently granted by BIS). Thus, persons who request an
exemption or extension of time are advised to proceed as if the
response is required by the deadline until advised otherwise by BIS.
(b) Grounds for exemption. (1) An exemption from the requirements
of this section may be granted if the person receiving the survey or
other request for information:
(i) Has no physical presence in the United States of any kind;
(ii) Does not provide, produce, distribute, utilize, procure,
research, develop, consult or advise on, or have any other direct or
indirect association with the materials, products, services or
technology that are within the scope of the survey;
(iii) Has ceased business operations more than 12 months prior to
receipt of the survey;
(iv) Has been in business for less than one year; or
(v) BIS determines that extenuating circumstances exist that make
responding impractical.
(2) BIS may also grant an exemption if, based on the totality of
the circumstances, it concludes that compliance would be impractical
and/or that requiring compliance would be unduly time intensive.
(3) Existence of a pre-existing private non-disclosure agreement or
information sharing agreement between a person and another party (e.g.,
customers, suppliers, etc.), does not
[[Page 11354]]
exempt a person from the obligation to comply with and complete a
survey. The authority to conduct the survey and comply with the survey
is derived from the DPA, and that statutory obligation to comply
supersedes any private agreement.
(c) Extensions of time to complete. A person who receives a survey
or other request for information may request an extension of time to
submit the complete response to BIS. BIS may grant such an extension of
time, if, in its judgment, circumstances are such that additional time
reasonably is needed, the extension would not jeopardize timely
completion of BIS's overall analysis, and the person is making
reasonable progress towards completing the survey or response to the
other request for information. Generally, extensions will be for no
more than two weeks. A person who receives a survey or other request
for information may request successive extensions if the person
believes that it continues to have a legitimate need for additional
time to complete the survey. BIS will not grant extensions that would
jeopardize the performance and timely completion of its industrial base
assessments.
(d) Procedure for requesting exemptions or extensions of time.
Requests for exemptions or extensions of time must be made to BIS at
the telephone number, email address or BIS physical address provided in
the initial distribution letter for a survey or in the other request
for information. A request for an exemption must provide factual
information and documentation that are adequate for BIS to determine
that one or more of the criteria stated in paragraph (b) or (c) are
met.
(e) Responses that are incomplete or inadequate. BIS may return
responses that are incomplete or inadequate to the person for prompt
completion. BIS will specify the required period of time permitted for
completion and submission of the revised survey.
Sec. 702.5 Consequences of failure to comply.
(a) Civil. If any person fails to comply with the requirements of
Sec. 702.4, BIS may issue a subpoena requiring that person to submit
the information called for in the survey. In the case of contumacy or
refusal to obey such a subpoena, the U.S. Government may apply for an
order by the United States district court in a district where that
person resides or transacts business that would compel the person to
submit the completed survey.
(b) Criminal. In accordance with 50 U.S.C. app. 2155, any person
who willfully fails to comply with Sec. 702.4, may, upon conviction,
be fined not more than $10,000 or imprisoned not more than one year, or
both.
Sec. 702.6 Definitions.
The definitions in this section apply throughout this part.
Confidential. A description of information that is subject to the
disclosure prohibitions of the DPA (50 U.S.C. app. 2155(d)).
Initial distribution letter. A letter that BIS sends to a person
that has been identified by the U.S. Government as a supplier or
customer of materials, products or services used for activities of the
industry that is the focus of a survey. The letter describes the
survey's primary objectives, how survey results will assist the U.S.
Government, and the confidential treatment of the information
submitted. The letter also provides BIS contact information.
Person. The term ``person'' includes: (a) An individual,
corporation, partnership, association, or any other organized group of
persons, or legal successor or representative thereof;
(b) Any State or local government or agency thereof;
(c) The Government of the United States, of the District of
Columbia, of any commonwealth, territory or possession of the United
States, or any department, agency or commission thereof.
Note to the definition of ``person''. Paragraph (a) of this
definition is not limited to commercial or for-profit organizations.
For example, the term ``any other organized group of persons'' may
encompass labor unions, academic institutions, charitable organizations
or any group of persons who are organized in some manner. The term
corporation is not limited to publicly traded corporations or
corporations that exist for the purpose of making a profit.
Survey. A questionnaire or other request for information that
collects detailed information and data to support both the assessment
of a particular industrial sector or technology and the development of
a corresponding study.
Supplement No. 1 to Part 702--General Survey Information
This supplement provides general information about surveys and
the content of the typical survey. The content of this supplement is
purely in example of a typical survey, and in no way limits the
content that may appear in a specific Bureau of Industry and
Security (BIS)-issued survey. Procedures and content vary from
survey to survey, and as such, there is no set template to follow.
Nonetheless, BIS is offering this information as a basic guide to
some elements of a survey.
Survey Structure
Most surveys include the following sections: Cover Page; Table
of Contents; General Instructions; Glossary of Terms; Organizational
Information, and sector-specific sections.
--The cover page typically includes the title of the survey, its
scope, an explanation of the legal requirement to comply, the burden
estimate for compliance with the survey, the Office of Management
and Budget (OMB) control number, and the survey date of expiration.
--The General Instructions section normally includes process steps
necessary for a person's survey submittal. These include but are not
limited to instructions for survey completion, survey support staff
point-of-contact information, the name and address of the presiding
BIS official, and instructions for both survey certification and
submittal.
--The Glossary of Terms section explains terms contained in the
survey. Terms contained in the survey may be unique to the subject
matter of the industry assessment, and therefore may change in
meaning from survey to survey. Therefore, it is important to follow
the specific instructions and defined terms contained in the
specific survey you receive, regardless of any previous survey you
might have completed.
--The Organization Information section requests information related
to the person in receipt of the survey, including address
information, the source level of response (e.g., facility, business
unit, division, corporate consolidated, etc.), point of contact
details, and other pertinent contact information.
The survey is generally organized in a question and answer format
and is presented on an electronic survey system. Each survey is
specially tailored to collect the specific information requested.
Therefore, specific detailed information is what should be submitted
in response to a survey requesting such information.
--For example, if we ask for a listing of your customers that order
widget A, your response should not be a listing of your entire
customer base. Only the information pertaining to customers'
ordering widget A is responsive to that kind of question.
Also note that your reply to a survey request is compulsory, unless
you meet the criteria for exemption set forth in the body of the
regulation. Therefore, any non-disclosure agreements or similar
agreements you may have with your customers or clients are not
applicable to a survey's request for information. Compliance with
the survey is required by the DPA. Accordingly, compliance with that
statutory requirement is paramount to any private agreement you have
with your customers or other parties.
In addition to the aforementioned sections, each survey contains
sections tailored to the specific scope of the study, including but
not limited to Facility Locations, Products and Services,
Inventories, Suppliers and Customers, Challenges and Organizational
Outlook, Employment, Operations, Financial Statements, Sales,
Research and Development, and Capital Expenditures.
[[Page 11355]]
Examples of Survey Terms
Certification: A section of the survey in which a person (an
authorizing official) certifies that the information supplied in
response to the survey is complete and correct, to the best of the
person's knowledge.
Facility: A building or the minimum complex of buildings or
parts of buildings in which a person operates to serve a particular
function, producing revenue and incurring costs for the person. A
facility may produce an item of tangible or intangible property or
may perform a service. It may encompass a floor or group of floors
within a building, a single building, or a group of buildings or
structures. Often, a facility is a group of related locations at
which employees work, together constituting a profit-and-loss center
for the person, and it may be identified by a unique Dun and
Bradstreet number.
Sole source: An organization that is the only source for the
supply of parts, components, materials, or services. No alternative
U.S. or non-U.S. based supplier exists other than the current
supplier.
Survey template: The data collection instrument supplied by BIS
to persons by which survey information is recorded and submitted to
BIS. The survey is generally organized in a question and answer
format and is presented on an electronic survey system.
Supplier: An entity from which your organization obtains inputs.
A supplier may be another firm with which you have a contractual
relationship, or it may be another facility owned by the same parent
organization. The inputs may be materials, products or services.
Dated: February 24, 2015.
Kevin J. Wolf,
Assistant Secretary for Export Administration.
[FR Doc. 2015-04299 Filed 3-2-15; 8:45 am]
BILLING CODE 3510-01-P