DEPARTMENT OF DEFENSE

Statement of Regulatory Priorities

Background

The Department of Defense (DoD) is the largest Federal department consisting of 3 Military departments (Army, Navy, and Air Force), 9 Unified Combatant Commands, 13 Defense Agencies, and 10 DoD Field Activities. It has 1,409,877 military personnel and 766,425 civilians assigned as of March 31, 2012, and over 200 large and medium installations in the continental United States, U. S. territories, and foreign countries. The overall size, composition, and dispersion of DoD, coupled with an innovative regulatory program, presents a challenge to the management of the Defense regulatory efforts under Executive Order (E.O.) 12866 "Regulatory Planning and Review" of September 30, 1993.

Because of its diversified nature, DoD is affected by the regulations issued by regulatory agencies such as the Departments of Energy, Health and Human Services, Housing and Urban Development, Labor, Transportation, and the Environmental Protection Agency. In order to develop the best possible regulations that embody the principles and objectives embedded in E.O. 12866, there must be coordination of proposed regulations among the regulatory agencies and the affected DoD components. Coordinating the proposed regulations in advance throughout an organization as large as DoD is a straightforward, yet formidable undertaking.

DoD occasionally issues regulations that have an effect on the public and can be significant as defined in E.O. 12866. In addition, some of DoD's regulations may affect other agencies. DoD, as an integral part of its program, not only receives coordinating actions from other agencies, but coordinates with the agencies that are affected by its regulations as well.

Overall Priorities

The Department needs to function at a reasonable cost, while ensuring that it does not impose ineffective and unnecessarily burdensome regulations on the public. The rulemaking process should be responsive, efficient, cost-effective, and both fair and perceived as fair. This is being done in DoD while reacting to the contradictory pressures of providing more services with fewer resources. The Department of Defense, as a matter of overall priority for its regulatory program, fully incorporates the provisions of the President's priorities and objectives under Executive Order (E.O.) 12866.

International Regulatory Cooperation

As the President noted in Executive Order 13609, "international regulatory cooperation, consistent with domestic law and prerogatives and U.S. trade policy, can be an important means of promoting" public health, welfare, safety, and our environment as well as economic growth, innovation, competitiveness, and job creation. Accordingly, in EO 13609, the President requires each executive agency to include in its Regulatory Plan a summary of its international regulatory cooperation activities that are reasonably anticipated to lead to significant regulations.

The Department of Defense, along with the Department of State and Department of Commerce, engages with other countries in the Wassenaar Arrangement, through which the international community develops a common list of items that should be subject to export controls.

Retrospective Review of Existing Regulations

Pursuant to section 6 of Executive Order 13563 "Improving Regulation and Regulatory Review (January 18, 2011), the following Regulatory Identifier Numbers (RINs) have been identified as associated with retrospective review and analysis in the Department's final retrospective review of regulations plan. All are of particular interest to small businesses. Some of these entries on this list may be completed actions, which do not appear in The Regulatory Plan. However, more information can be found about these completed rulemakings in past publications of the Unified Agenda on Reginfo.gov in the Completed Actions section for that agency. These rulemakings can also be found on Regulations.gov. The final agency plans can be found at: http://www.regulations.gov/exchange/topic/eo-13563

RIN

Rule Title (*expected to significantly reduce burdens on small businesses)

0790-AI73

Withholding of Unclassified Technical Data From Public Disclosure

0790-AI75

Presentation of DoD-Related Scientific and Technical Papers at Meetings

0790-AI77

Provision of Early Intervention and Special Education Services to Eligible DoD Dependents

0790-AI84

National Defense Science and Engineering Graduate (NDSEG) Fellowships

0790-AI54

Defense Support of Civilian Law Enforcement Agencies

0790-AI88

Shelter for the Homeless

0710-AA66

Civil Monetary Penalty Inflation Adjustment Rule

0710-AA60

Nationwide Permit Program Regulations*

0703-AA91

Unofficial Use of the Seal, Emblem, Names, or Initials of the Marine Corps

0703-AA92

Professional Conduct of Attorneys Practicing Under the Cognizance and Supervision of the Judge Advocate General

0703-AA88

Professional Conduct of Attorneys Practicing Under the Cognizance and Supervision of the Judge Advocate General

Pursuant to Executive Order 13563, DoD also plans to finalize the DFARS rule to delete text in DFARS part 219 that implemented 10 U.S.C. 2323 because 10 U.S.C. 2323 has expired.

Administration Priorities:

1. Rulemakings that are expected to have high net benefits well in excess of costs.

The Department plans to-

  • Revise the DFARS to implement section 806 of the National Defense Authorization Act (NDAA) for Fiscal Year (FY) 2011, which requires the evaluation of offeror's supply chain risks for information technology purchases relating to national security systems. This rule enables agencies to exclude sources that are identified as having a supply chain risk.

  • Revise the DFARS to use Commercial and Government Entity (CAGE) codes and NCAGE (if foreign) for awards greater than the micropurchase threshold to identify the immediate corporate parent. This rule will provide standardization across the Federal government to facilitate data collection and support anti-counterfeiting efforts by uniquely identifying vendors.

  • Revise the DFARS to use Activity Address Codes as the unique identifier for contracting offices and other offices, as well as the use of standard procurement instrument identification numbers. This will provide for standardization across the Federal government to facilitate data tracking and collection.

    2. Rulemakings that promote Open Government and use disclosure as a regulatory tool.

    The Department plans to-

  • Finalize the DFARS rule, which revises reporting requirements for Government-furnished property to include items uniquely and non-uniquely identified, which will permit enterprise-wide visibility thereby enhancing DoD's ability to reutilize items. The data will be available to users in the logistics, financial, and property accountability arenas.

    3. Rulemakings that streamline regulations, reduce unjustified burdens, and minimize burdens on small businesses.

    The Department plans to-

  • Finalize the rule for DFARS coverage of patents, data, and copyrights, which significantly reduces the amount of regulatory text and the number of required clauses.

    4. Rules to be modified, streamlined, expanded, or repealed to make the agency's regulatory program more effective or less burdensome in achieving the regulatory objectives.

  • DFARS Case 2012-D022 - Provides guidance relating to rights in technical data under contracts for production and sustainment of systems or subsystems.

  • DFARS Case 2012-D008 - Proposes a new convention for prescribing clauses with alternates to provide alternate clauses in full text. This will facilitate selection of alternate clauses using automated contract writing systems.

  • DFARS Case 2011-D056 - Provides a new approach to identifying required provisions and clauses for the acquisition of commercial items, by replacing the omnibus contract clause at DFARS 252.212-7001 with an amplified list in part 212 of required provisions and clauses. This supports simplified clause prescriptions and facilitates commercial item clause selections using automated contract writing systems.

  • DFARS Case 2010-D001 - Finalizes the rule for DFARS coverage of patents, data, and copyrights, which significantly reduces the amount of regulatory text and the number of required clauses.

    Specific DoD Priorities:

    For this regulatory plan, there are six specific DoD priorities, all of which reflect the established regulatory principles. DoD has focused its regulatory resources on the most serious environmental, health, and safety risks. Perhaps most significant is that each of the priorities described below promulgates regulations to offset the resource impacts of Federal decisions on the public or to improve the quality of public life, such as those regulations concerning acquisition, security, energy projects, education, and health affairs.

    1. Defense Procurement and Acquisition Policy

    The Department of Defense continuously reviews the DFARS and continues to lead Government efforts to-

  • Revise the DFARS to provide detailed guidance and instruction to DoD contracting officers for the use of DoD's performance based payments analysis tool when contemplating the use of performance based payments on new fixed-price type contracts.

  • Revise the DFARS to implement a DoD Better Buying Power initiative by providing a proposal-adequacy checklist in a provision to ensure offerors take responsibility for providing thorough, accurate, and complete proposals.

  • Revise the DFARS to implement a DoD Better Buying Power initiative by providing a forward-pricing-rate-agreement checklist in a provision to ensure offerors take responsibility for providing thorough, accurate, and complete proposals.

  • Revise the DFARS to address standards and structures for the safeguarding of unclassified DoD information.

  • Revise the DFARS to include contractor reporting and documentation requirements regarding contractor compliance with the DFARS business systems' criteria.

    2. Logistics and Material Readiness, Department of Defense

    The Department of Defense plans to finalize a rule on contractors supporting the military in contingency operations:

  • Final Rule: Operational Contract Support. This rule incorporates the latest changes and lessons learned into policy and procedures for operational contract support (OCS), including OCS program management, contract support integration, and the integration of DoD contractor personnel into contingency operations outside the United States. It was required to procedurally close gaps and ensure the correct planning, oversight and management of DoD contractors supporting contingency operations, by updating outdated policy. DoD published an interim final rule on December 29, 2011 (32 CFR part 158, 76 FR 81807-81825) with an effective date of December 29, 2011. The comment period ended February 27, 2012. DoD is preparing a final rule, which includes the responses to the public comments. The final rule is expected to be published the second quarter of FY 2013.

    3. Installations and Environment, Department of Defense

    The Department of Defense plans to finalize a rule regarding the process for evaluating the impact of certain types of structures on military operations and readiness:

  • Final Rule: This rule implements policy, assigns responsibilities, and prescribes procedures for the establishment and operation of a process for evaluation of proposed projects submitted to the Secretary of Transportation under section 44718 of title 49, United States Code. The evaluation process is established for the purpose of identifying any adverse impact of proposed projects on military operations and readiness, minimizing or mitigating such adverse impacts, and determining if any such projects pose an unacceptable risk to the national security of the United States. The rule also includes procedures for the operation of a central DoD siting clearinghouse to facilitate both informal and formal reviews of proposed projects. This rule is required by section 358 of Public Law 111-383. An interim final rule was published on October 20, 2011 (76 FR 65112). DoD anticipates publishing a final rule in the second quarter of FY 2013.

    4. Military Community and Family Policy, Department of Defense

    The Department of Defense plans to finalize a rule to implement policy, assign responsibilities, and prescribe procedures for the operation of voluntary education programs within DoD:

  • Final Rule: In this final rule, the Department of Defense (DoD) plans to implement policy, assigns responsibilities, and prescribes procedures for the operation of voluntary education programs within DoD. Several of the subject areas in this final rule include: procedures for Service members participating in education programs; guidelines for establishing, maintaining, and operating voluntary education programs including, but not limited to, instructor-led courses offered on-installation and off-installation, as well as via distance learning; procedures for obtaining on-base voluntary education programs and services; minimum criteria for selecting institutions to deliver higher education programs and services on military installations; the establishment of a DoD Voluntary Education Partnership Memorandum of Understanding (MOU) between DoD and educational institutions receiving tuition assistance payments; and procedures for other education programs for Service members and their adult family members.

    The new DoD MOU policy was scheduled to commence in early 2012; however, due to concerns received by DoD from several institutions of higher learning (IHLs) involving the language in the DoD Voluntary Education Partnership Memorandum of Understanding (MOU), commencement was put on-hold. DoD extended the deadline to work with the stakeholders (American Council on Education, IHLs, and key veteran and military service organizations) to address these concerns by clarifying the terminology contained in the DoD MOU. One change was informally coordinated with all key stakeholders (Congress, the White House, American Council on Education and select IHL) and now captures the agreed upon MOU policy. The new deadline to implement the policy requiring participating IHLs to sign the MOU is sixty days following the publication of the final rule in the Federal Register. A proposed rule was published on August 6, 2010 (75 FR 47504). DoD anticipates publishing a final rule in the second quarter of FY2013.

    Earlier this year, the White House worked with an interagency group, including the Departments of Education, Veterans Affairs, Justice, and Defense, on the development of an Executive Order establishing the Principles of Excellence for educational institutions servicing Service members, Veterans, spouses, and other family members. The President signed Executive Order 13607 on April 27, 2012. Implementation of the protections stated in E.O. 13607 will require developing and coordinating an amendment to the rule, Voluntary Education Programs. The White House guidance states DoD will implement these new student protections by the start of academic year 2013-2014. DoD anticipates publishing a final rule the third quarter of FY 2013.

    5. Health Affairs, Department of Defense

    The Department of Defense is able to meet its dual mission of wartime readiness and peacetime health care by operating an extensive network of medical treatment facilities. This network includes DoD's own military treatment facilities supplemented by civilian health care providers, facilities, and services under contract to DoD through the TRICARE program. TRICARE is a major health care program designed to improve the management and integration of DoD's health care delivery system. The program's goal is to increase access to health care services, improve health care quality, and control health care costs.

    The TRICARE Management Activity has published or plans to publish the following rules:

  • Final rule on TRICARE: Reimbursement of Sole Community Hospitals and Adjustment to Reimbursement of Critical Access Hospitals. The rule implements the statutory provision in 10 United States Code 1079(j)(2) that TRICARE payment methods for institutional care shall be determined to the extent practicable in accordance with the same reimbursement rules as those that apply to payments to providers of services of the same type under Medicare. This rule implements a reimbursement methodology similar to that furnished to Medicare beneficiaries for services provided by sole community hospitals. It is projected that implementation of this rule will result in health care savings of $36.5 million per year with proposed phase-in period and an estimated initial startup cost of $200,000. Any ongoing administrative costs would be minimal and there do not appear to be any applicable risks to the public. The proposed rule was published July 5, 2011 (76 FR 39043). The comment period ended on September 6, 2011. DoD anticipates publishing a final rule in the second quarter of FY 2013.

  • Final rule on TRICARE: TRICARE Young Adult. The purpose of this interim final rule is to establish the TRICARE Young Adult program implementing section 702 of the Ike Skelton NDAA for FY 2011 (Pub. L. 111-383) to provide medical coverage to unmarried children under the age of 26 who no longer meet the age requirements for TRICARE eligibility (age 21, or 23 if enrolled in a full-time course of study at an institution of higher learning approved by the Secretary of Defense) and who are not eligible for medical coverage from an eligible employer-sponsored plan (as defined in section 5000A(f)(2) of the Internal Revenue Code of 1986). If qualified, they can purchase TRICARE Standard/Extra or TRICARE Prime benefits coverage. The particular TRICARE plan available depends on the military sponsor's eligibility and the availability of the TRICARE plan in the dependent's geographic location. It is projected that implementation of this rule will result in an estimated initial start-up cost of $3,000,000. Premiums are designed to cover the anticipated health care costs, as well as ongoing administrative costs. The interim final rule was published April 27, 2011 (76 FR 23479), with an immediate effective date. The comment period ended June 27, 2011. DoD anticipates publishing a final rule in the second quarter of FY 2013.

    6. Sexual Assault Prevention and Response Office, Department of Defense

    The Department of Defense plans to publish an interim final rule regarding Sexual Assault Prevention and Response (SAPR) Program Procedures:

  • Interim Final Rule: Sexual Assault Prevention and Response (SAPR) Program Procedures. This part implements Department of Defense (DoD) policy and assigns responsibilities for the SAPR Program on prevention, response, and oversight to sexual assault. It is DoD policy to establish a culture free of sexual assault by providing an environment of prevention, education and training, response capability, victim support, reporting procedures, and accountability that enhances the safety and well being of all persons covered by the regulation. DoD anticipates publishing the interim final rule in the first or second quarter of FY 2013.

    7. Personnel and Readiness, Department of Defense

    The Department of Defense plans to publish a rule regarding Service Academies:

  • Final Rule: Service Academies. This rule establishes policy, assigns responsibilities, and prescribes procedures for Department of Defense oversight of the Service Academies. Administrative costs are negligible and benefits are clear, concise rules that enable the Secretary of Defense to insure that the Service Academies are efficiently operated and meet the needs of the armed forces. The proposed rule was published October 18, 2007 (72 FR 59053), and included policy that has since changed. The final rule, particularly the explanation of separation policy, will reflect recent changes in the Don't Ask, Don't Tell policy. It will also incorporate changes resulting from interagency coordination. DoD anticipates publishing the final rule in the first or second quarter of FY 2013.

    8. Chief Information Officer, Department of Defense

    The Department of Defense plans to publish a final rule to establish the voluntary cyber security information sharing program between DoD and eligible cleared defense contractors:

  • Final Rule: Defense Industrial Base (DIB) Voluntary Cyber Security/Information Assurance (CS/IA) Activities. The DIB CS/IA program enhances and supplements DIB participant's capabilities to safeguard DoD information that resides on, or transits, DIB unclassified information systems. At the core of this voluntary program is a bilateral cyber security information sharing activity, in which DoD provides cyber threat information and information assurance best practices to DIB companies, and in return, DIB companies report certain types of cyber intrusion incidents to the DoD-DIB Collaborative Information Sharing Environment (DCISE), located at the DoD Cyber Crime Center. The information sharing arrangements between DoD and each participating DIB company are memoralized in a standardized bilateral Framework Agreement. The interim final rule was published on May 11, 2012 (77 FR 27615). The comment period on the interim final rule ended on July 11, 2012. Once adjudication of the comments is complete, DoD anticipates publishing a final rule in the second quarter of FY 2013.