DEPARTMENT OF DEFENSE

Statement of Regulatory Priorities

Background

The Department of Defense (DoD) is the largest Federal department consisting of three Military departments (Army, Navy, and Air Force), nine Unified Combatant Commands, 17 Defense Agencies, and ten DoD Field Activities. It has 1,412,674 military personnel and 886,975 civilians assigned as of June 30, 2013, 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 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.

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)**
0701-AA76	Air Force Freedom of Information Act Program
0701-AA77	Air Force Privacy Act Program
0703-AA87	United States Navy Regulations and Official Records
0703-AA90	Guidelines for Archaeological Investigation Permits and Other Research on Sunken Military Craft and Terrestrial Military Craft Under the Jurisdiction of the Department of the Navy
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
0750-AG47	Safeguarding Unclassified Controlled Technical Information (DFARS Case 2011-D039)
0750-AG62	Patents, Data, and Copyrights (DFARS Case 2010-D001)
0750-AH11	Only One Offer - Further Implementation (DFARS Case 2013-D001)
0750-AH54	Performance-Based Payments (DFARS Case 2011-D045)
0750-AH86	Forward Pricing Rate Proposal Adequacy Checklist (DFARS Case 2012-D035)
0750-AI03	Approval of Rental Waiver Requests (DFARS Case 2013-D006)
0790-AI24	DoD Freedom of Information Act (FOIA) Program Regulation
0790-AI30	Defense Contract Management Agency (DCMA) Privacy Program
0790-AI42	Personnel Security Program
0790-AI51	DoD Freedom of Information Act (FOIA) Program; Amendment
0790-AI63	Alternative Dispute Resolution
0790-AI71	National Industrial Security Program (NISP): Procedures for Government Activities Relating to Foreign Ownership, Control or Influence (FOCI)
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-AI80	National Industrial Security Program: Industrial Security Procedures for Government Activities
0790-AI84	National Defense Science and Engineering Graduate (NDSEG) Fellowships
0790-AI87	Defense Logistics Agency Freedom of Information Act Program
0790-AI88	Shelter for the Homeless
0790-AI92	Inspector General; Privacy Act; Implementation
0790-AJ03	DoD Privacy Program
0790-AJ04	Unlawful Discrimination (On the Basis of Race, Color, National Origin, or Age in Programs or Activities Receiving Federal Financial Assistance From the DoD)
0790-AJ05	End Use Certificates (EUCs)
0790-AJ06	Voluntary Education Programs
0790-AJ07	Historical Research in the Files of the Office of the Secretary of Defense (OSD)
0790-AJ10	Enhancement of Protections on Consumer Credit for Members of the Armed Forces and Their Dependents
COMPLETED RULES
0710-AA66	Civil Monetary Penalty Inflation Adjustment Rule
0710-AA60	Nationwide Permit Program Regulations*
0750-AH19	Accelerated Payments to Small Business (DFARS Case 2011-D008)
0750-AH70	Defense Trade Cooperation Treaty With Australia and the United Kingdom (DFARS Case 2012-D034)
0750-AH87	System for Award Management Name Changes, Phase 1 Implementation (DFARS Case 2012-D053)
0790-AI54	Defense Support of Civilian Law Enforcement Agencies
0790-AI86	Defense Logistics Agency Privacy Program
	DoD also removed 32 CFR part 513, "Indebtedness of Military Personnel," because the part is obsolete and the governing policy is now codified at 32 CFR part 112.

Administration Priorities:

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

The Department plans to-

Finalize the rule to implement section 806 of the National Defense Authorization Act (NDAA) for Fiscal Year (FY) 2011), as amended by section 806 of the NDAA for FY 2013. Section 806 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 in order to minimize the potential risk for purchased supplies and services to maliciously introduce unwanted functions and degrade the integrity and operation of sensitive information technology systems.

Revise the DFARS to improve awareness, compliance, and enforcement of DoD policies on combating trafficking in persons. The rule will further improve stability, productivity, and certainty in the contingency operations that DoD supports and ensure that DoD contractors do not benefit from the use of coerced labor.

Finalize the rule to implement section 818 of the NDAA for FY 2012 relating to the detection and avoidance of counterfeit parts. The rule would address contractor responsibilities for detecting and avoiding the use or inclusion of counterfeit electronic parts or suspect counterfeit electronic parts, the use of trusted suppliers, and requirements for contractors to report counterfeit electronic parts and suspect counterfeit electronic parts. The rule seeks to preclude the introduction of counterfeit material that could compromise DoD weapon and information systems.

2. Rulemakings of particular interest to small businesses.

The Department plans to-

Revise the DFARS to implement new prescriptions and clause formats for part 219, Small Business Programs, clauses with alternates. This proposed rule, with its unique prescriptions for the basic version and each alternate for solicitation provisions and clauses, will facilitate the use of automated contract writing systems. The inclusion of the full text of the alternate clause in the regulation should make the terms of the alternate clearer to the offerors and contractors by clarifying paragraph substitutions. As a result, inapplicable paragraphs from the basic clause that are superseded by the alternate will not be included in solicitations or contracts, reducing the potential for confusion.

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. Removal of the obsolete implementing coverage for 10 U.S.C. 2323 will bring DFARS up to date and provide accurate and indisputable regulations affecting the small business and vendor communities.

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

The Department plans to-

Finalize the rule for DFARS to implement section 803 of the NDAA for FY 2011 to allow a covered litigation support contractor access to technical, proprietary, or confidential data for the sole purpose of providing litigation support.

Revise the DFARS to standardize solicitation provisions and contract clauses relating to information technology Cloud Services.

Revise the DFARS to reduce the frequency of submission of subcontracting reports.

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 Cases 2012-D057, 2013-D005, 2013-D014, 2013-D025; and 2013-D026; - Propose 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. The inclusion of the full text of the alternate clauses in the regulation for use in solicitations and contracts should make the terms of the alternate clauses clearer to offerors and contractors by clarifying paragraph substitutions. As a result, inapplicable paragraphs from the basic clause that are superseded by the alternate will not be included in solicitations or contracts, reducing the potential for confusion.

DFARS Case 2013-D037-removes redundant DFARS coverage on contractors performing private security functions under a contract that requires performance during contingency operations, in an area of combat operations, or in an area of other significant military operations. These requirements have been incorporated into the FAR, so the DFARS coverage is no longer required.

DFARS 2013-D033-deletes unnecessary text from the DFARS to increase clarity of the proposal adequacy checklist. Item 19 on the checklist is being deleted as it overlaps and duplicates other information addressed by other items on the checklist.

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 improve information security controls by addressing the requirements for safeguarding unclassified controlled technical information. This rule implements security measures to safeguard unclassified DoD information within contractor information systems from unauthorized access and disclosure and to prescribe reporting to DoD certain cyber intrusion events that affect DoD information resident on or transiting through contractor unclassified information systems.

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) The final rule is expected to be published the first quarter of FY 2014.

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: Mission Compatibility Evaluation Process. 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 first quarter of FY 2014.

4. Military Community and Family Policy, Department of Defense

The Department of Defense proposes new policies, responsibilities, and procedures for the operation of voluntary education programs within DoD. Additionally, the Department plans to publish a rule regarding child development programs:

Proposed Rule: Voluntary Education Programs. In this proposed rule, the Department of Defense (DoD) discusses new policy, responsibilities, and procedures for the operation of voluntary education programs within DoD. The new policies discussed in the rule include the following. All educational institutions providing education programs through the DoD Tuition Assistance (TA) Program will provide meaningful information to students about the financial cost and attendance at an institution so military students can make informed decisions on where to attend school; not use unfair, deceptive, and abusive recruiting practices; and provide academic and student support services to Service members and their families. New criteria are created to strengthen existing procedures for access to military installations by educational institutions. An annual review and notification process is required if there are changes made to the uniform semester-hour (or equivalent) TA caps and annual TA ceilings. Military Departments will be required to provide their Service members with a joint services transcript (JST). The DoD Postsecondary Education Complaint System is implemented for Service members, spouses, and adult family members to register student complaints. The Military Departments are authorized to establish Service-specific TA eligibility criteria and management controls. DoD anticipates publishing a final rule in the second quarter of FY 2014.

• Interim Final Rule: Child Development Programs (CDPs) : In this interim final rule, the Department of Defense updates policy, responsibilities, and procedures for providing care to minor children birth through age 12 of individuals eligible for care in DoD CDPs to include center-based care, family child care (FCC), school-age care (SAC), supplemental child care, and community based care. The subject areas in this rule include authorizing the publication of supporting guidance for the implementation of CDP policies and responsibilities (including child development training modules, program aids, and other management tools) and establishment of the DoD Effectiveness Rating and Improvement System (ERIS). DoD anticipates publishing a final rule in the second quarter of FY 2014.

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:

Proposed Rule: TRICARE; Reimbursement of Long Term Care Hospitals. The proposed 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 proposed rule implements a reimbursement methodology similar to that furnished to Medicare beneficiaries for services provided by long term care hospitals. DoD anticipates publishing a proposed rule in the second quarter of FY 2014.

Interim Final Rule: CHAMPUS/TRICARE: Pilot Program for Refills of Maintenance Medications for TRICARE Life Beneficiaries through the TRICARE Mail Order Program. This interim final rule implements section 716 of the National Defense Authorization Act for Fiscal Year 2013 (Pub. L. 112-239), which establishes a 5-year pilot program that would generally require TRICARE for Life beneficiaries to obtain all refill prescriptions for covered maintenance medications from the TRICARE mail order program or military treatment facility pharmacies. Covered maintenance medications are those that involve recurring prescriptions for chronic conditions, but do not include medications to treat acute conditions. Beneficiaries may opt out of the pilot program after 1 year of participation. This rule includes procedures to assist beneficiaries in transferring covered prescriptions to the mail order pharmacy program. This regulation is being issued as an interim final rule in order to comply with the express statutory intent that the program begin in calendar year 2013. DoD anticipates publishing an interim final rule in the first quarter of FY 2014.

Final Rule: TRICARE: Certified Mental Health Counselors. This rule was published as an interim final rule on December 27, 2011 (76 FR 80741), in order to meet the congressional requirement set forth in the National Defense Authorization Act (NDAA) for Fiscal Year (FY) 2011, section 724, which required the Department of Defense to prescribe regulations by June 20, 2011, to establish the criteria, as had previously been studied in accordance with section 717 of the NDAA 2008, that would allow licensed or certified mental health counselors (MHCs) to be able to independently provide care to TRICARE beneficiaries and receive payment for those services. Under current TRICARE requirements, MHCs are authorized to practice only with physician referral and supervision. This IFR establishes a transition period to allow MHCs to gain the requisite education, examination, and post-master's clinical experience for the new category of qualified mental health professionals, "TRICARE Certified Mental Health Counselors," who will be authorized to practice independently under TRICARE, as well as phase out the category of MHC who require referral and supervision from TRICARE authorized physicians. DoD anticipates finalizing this rule in the second quarter of FY 2014.

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

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

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 wellbeing of all persons covered by the regulation. An interim final rule was published on April 11, 2013 (78 FR 21715). DoD anticipates publishing a final rule in the second quarter of FY 2014.

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. 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 2014.

8. Chief Information Officer, Department of Defense

The Department of Defense plans to amend the voluntary cyber security information sharing program between DoD and eligible cleared defense contractors:

Proposed Rule: Defense Industrial Base (DIB) Voluntary Cyber Security/Information Assurance (CS/IA) Activities. The Department proposes to amend the DoD-DIB CS/IA Voluntary Activities regulation (32 CFR part 236) in response to Section 941 National Defense Authorization Act (NDAA) for Fiscal Year (FY) 2013 which requires the Secretary of Defense to establish procedures that require each cleared defense contractor (CDC) to report when a network or information system that meets the criteria reports cyber intrusions. DoD anticipates publishing a proposed rule in the second or third quarter of FY 2014.

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