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 1,304,807
military
personnel and 866,923 civilians assigned as of June 30, 2015,
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 Commerce, Energy, Health and Human
Services, Housing and Urban Development, Labor, State, 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.
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 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 Executive Order 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 Departments of State and Commerce,
engages with other countries in the Wassenaar Arrangement, Nuclear Suppliers
Group, Australia Group, and Missile Technology Control Regime through which the
international community develops a common list of items that should be subject
to export controls. DoD has been a key participant in the Administration's
Export Control Reform effort that resulted in a complete overhaul of the U.S.
Munitions List and fundamental changes to the Commerce Control List. New
controls have facilitated transfers of goods and technologies to allies and
partners while helping prevent transfers to countries of national security and
proliferation concern. DoD will continue to assess new and emerging
technologies to ensure items that provide critical military and intelligence
capabilities are properly controlled on international export control regime
lists.
Retrospective
Review of Existing Regulations
Pursuant
to section 6 of Executive Order 13563 "Improving Regulation and Regulatory
Review
(January 18, 2011),
the following Regulatory Identification Numbers (RINs) have been identified as
associated with retrospective review and analysis in the Department's final
retrospective review of regulations plan. Several are of particular interest to
small businesses. The entries on this list are 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 DoD. These rulemakings can also be
found on Regulations.gov. We will continue to identify retrospective review
regulations as they are published and report on the progress of the overall
plan biannually. DoD's final agency plan and all updates to the plan can be
found at: http://www.regulations.gov/#!docketDetail;D=DOD-2011-OS-0036
RIN
|
Rule
Title (*expected to significantly reduce burdens on small businesses)
|
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-AA92
|
Professional
Conduct of Attorneys Practicing Under the Cognizance and Supervision of the
Judge Advocate General
|
0710-AA66
|
Civil
Monetary Penalty Inflation Adjustment Rule
|
0710-AA60
|
Nationwide
Permit Program Regulations*
|
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 (DFARS Case 2011-D013)
|
0750-AH19
|
Accelerated
Payments to Small Business (DFARS Case 2011-D008)
|
0750-AH54
|
Performance-Based
Payments (DFARS Case 2011-D045)
|
0750-AH70
|
Defense
Trade Cooperation Treaty With Australia and the United Kingdom (DFARS Case
2012-D034)
|
0750-AH86
|
Forward
Pricing Rate Proposal Adequacy Checklist (DFARS Case 2012-D035)
|
0750-AH87
|
System
for Award Management Name Changes, Phase 1 Implementation (DFARS Case
2012-D053)
|
0750-AH90
0750-AH94
0750-AH95
0750-AI02
0750-AI10
0750-AI19
0750-AI27
|
Clauses
With Alternates-Transportation (DFARS Case 2012-D057)
Clauses
with Alternates-Foreign Acquisition (DFARS Case 2013-D005)
Clauses
with Alternates-Quality Assurance (DFARS Case 2013-D004)
Clauses
with Alternates-Contract Financing (DFARS Case 2013-D014)
Clauses
with Alternates-Research and Development Contracting (DFARS Case 2013-D026)
Clauses
with Alternates-Taxes (DFARS Case 2013-D025)
Clauses
with Alternates-Special Contracting Methods, Major System Acquisition, and
Service Contracting (DFARS Case 2014-D004)
|
0750-AI03
|
Approval
of Rental Waiver Requests (DFARS Case 2013-D006)
|
0750-AI07
|
Storage,
Treatment, and Disposal of Toxic or Hazardous Materials-Statutory Update (DFARS
Case 2013-D013)
|
0750-AI18
|
Photovoltaic
Devices (DFARS Case 2014-D006)
|
0750-AI34
|
State
Sponsors of Terrorism (DFARS Case 2014-D014)
|
0750-AI43
|
Inflation
Adjustment of Acquisition-Related Thresholds
|
0790-AI42
|
Personnel
Security Program
|
0790-AI54
|
Defense
Support of Civilian Law Enforcement Agencies
|
0790-AI77
|
Provision
of Early Intervention and Special Education Services to Eligible DoD
Dependents
|
0790-AI86
|
Defense
Logistics Agency Privacy Program
|
0790-AI87
|
Defense
Logistics Agency Freedom of Information Act Program
|
0790-AI88
|
Shelter
for the Homeless
|
0790-AJ03
|
DoD
Privacy Program
|
0790-AJ06
|
Voluntary
Education Programs
|
0790-AJ10
|
Enhancement
of Protections on Consumer Credit for Members of the Armed Forces and Their
Dependents
|
|
Pursuant
to Executive Order 13563, 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 following Defense Federal Acquisition
Regulation Supplement (DFARS) rules:
Requirements
Relating to Supply Chain Risk (DFARS case 2012-D050). This final rule implements
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 contracting officers to evaluate an offerors supply chain risk when
purchasing information technology related to national security systems. This
rule enables agencies to exclude sources identified as having a supply chain
risk from consideration for award of a covered contract, in order to minimize
the potential risk for supplies and services purchased by DoD to maliciously degrade
the integrity and operation of sensitive information technology systems. The
cost impact will vary by solicitation or contract, depending on the level of
potential harm to DoD systems that may be avoided by excluding a source with an
unacceptable supply chain risk. However, DoD anticipates significant savings
to taxpayers by reducing the risk of unsafe products entering the supply chain,
which pose a serious threat to sensitive government information technology
systems and put in jeopardy the safety of our military forces.
Network
Penetration Reporting and Contracting for Cloud Services (DFARS case 2013-D018).
This final rule implements section 941 of the NDAA for FY 2013 and section 1632
of the NDAA for FY 2015. Section 941 requires cleared defense contractors to
report penetrations of networks and information systems and allows DoD
personnel access to equipment and information to assess the impact of reported
penetrations. Section 1632 requires that a contractor designated as
operationally critical must report each time a cyber-incident occurs on that
contractor's network or information systems. Ultimately, DoD anticipates
significant savings to taxpayers as a result of this rule, by improving
information security for DoD information that resides in or transits through
contractor systems and a cloud environment. Recent high-profile
breaches of Federal information show the need to ensure that information
security protections are clearly, effectively, and consistently addressed in
contracts. This rule will help protect covered defense information or other
Government data from compromise and protect against the loss of operationally
critical support capabilities, which could directly impact national security.
Detection
and Avoidance of Counterfeit Electronic Parts-Further Implementation (DFARS
case 2014-D005). This final rule further implements section 818 of the NDAA for
FY 2012, as modified by section 817 of the NDAA for FY 2015. Section 818, as
modified by section 817, addresses required sources of electronic parts for
defense contractors and subcontractors. This rule requires DoD and its contractors
and subcontractors, except in limited circumstances, to acquire electronic
parts from trusted suppliers. The rule also requires DoD contractors and subcontractors
that are not the original component manufacturer, to notify the Government if
it is not possible to obtain an electronic part from a trusted supplier and to
be responsible for the inspection, test, and authentication of such parts in
accordance with existing industry standards. Such validation of new parts and
new suppliers are steps that a prudent contractor would take notwithstanding
this rule. The benefits associated with avoiding the acquisition of
counterfeit electronic parts, which could directly impact national security,
far outweigh the minimal cost impact associated with the notification
requirement imposed by this rule.
2.
Rulemakings of particular interest to small businesses.
The
Department plans to propose the following DFARS rule-
Temporary
Extension of Test Program for Comprehensive Small Business Subcontracting Plans
(DFARS case 2015-D013). This proposed rule implements section 821 of the NDAA
for FY 2015 regarding the Test Program for Comprehensive Small Business
Subcontracting Plans. The Test Program was established under section 834 of
the NDAAs for FYs 1990 and 1992 to determine whether the negotiation and
administration of comprehensive small business subcontracting plans would
result in an increase of opportunities provided for small business concerns
under DoD contracts. A comprehensive subcontracting plan (CSP) can be
negotiated on a corporate, division, or sector level, rather than contract by
contract. This rule proposes to amend the DFARS to: (1) extend the Test
Program through December 31, 2017; (2) require contracting officers to consider
an offerors failure to make a good faith effort to comply with its CSP in past
performance evaluations; and (3) inform program participants that a CSP will
not be negotiated with a contractor that did not meet the small business goals
negotiated in its prior CSP. This rule is of particular interest to small
businesses because it holds prime contractors that are participating in the
program accountable for the small business goals established in their CSP,
resulting in increased business opportunities for small business
subcontractors.
3.
Rulemakings that streamline regulations, reduce unjustified burdens, and
minimize burdens on small businesses.
The
Department plans to finalize the following DFARS rule-
Warranty
Tracking of Serialized Items (DFARS case 2014-D026). This final rule requires the
use of the electronic contract attachments to record and track warranty data
and source of repair information for serialized items in the Product Data
Reporting and Evaluation Program (PDREP) system. While contracting officers are
encouraged to use the electronic attachments, currently, it is not mandatory in
the DFARS. As a result, offerors may propose warranty terms in paper form,
which are later manually input into the PDREP system when a contract is awarded.
On the other hand, the electronic contract attachments are designed to easily
upload to the PDREP system, which reduces: (1) the potential burden of manually
entering warranty terms in multiple places, and (2) inaccuracies in the data
reported. By making use of these attachments mandatory, the rule provides DoD
the ability to more effectively track warranty data and source of repair
information for serialized items in a single repository of warranty terms.
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.
The
Department plans to finalize the following DFARS rule-
Clauses
with Alternates-Small Business Programs (DFARS case 2015-D017). This final rule
amends those contract clauses associated with small business programs that are
prescribed for use with an "alternate." A contracting officer selects a basic clause
for inclusion in a contract based on the clause prescription contained in the
DFARS. Some clause prescriptions require the use of "alternate" text within a
basic clause depending on the circumstances of the acquisition. In lieu of
listing the basic clause and any alternate text separately, this rule proposes
to include in the regulation the full text of both the basic clause with the
alternate clause. This new convention will facilitate selection of clauses with
alternates using automated contract writing systems and ensure paragraphs from
the basic clause that should be superseded by alternate text are not inadvertently
included in the solicitation or contract. As a result, the terms of a
solicitation and contract are clearly communicated to offerors and contractors
who consider such terms during proposal development and contract performance.
5.
Rulemakings that have a significant international impact.
The
Department plans to propose the following DFARS rule-
Contractors
Performing Private Security Functions (DFARS case 2015-D021). During
contingency operations, humanitarian or peace operations, or other
military operations or exercises, DoD employs private security contractors
(PSCs) to guard personnel, facilities, designated sites, or property of
Federal agencies, the contractor or subcontractor, or a third party. Requirements
for DoD contractors performing private security functions outside the
United States are currently contained in the Federal Acquisition
Regulation, and supplemented by the DFARS. This rule proposes to streamline
the regulation by consolidating all terms and conditions for DoD PSCs in a
single DFARS clause, which can be updated by DoD in a more efficient and
timely manner. This rule will also provide an alternative to the high-level
quality assurance standard required by the DFARS for PSCs. Contract
quality requirements fall into four general categories, depending on the
extent of quality assurance needed by the Government for the acquisition
involved. In the case of PSC's, the high-level quality standard,
"Management System for Quality of Private Security Company Operations -
Requirements with Guidance, ANSI/ASIS PSC.1-2012" is mandatory. The
alternative proposed by this rule for PSCs (ISO 18788: Management System
Private Security Operations - Requirements with Guidance) is substantially
the same as ANSI/ASIS PSC.1-2012 and is more widely accepted on an
international basis.
Specific
DoD Priorities:
For this regulatory
plan, there are five specific DoD priorities, all of which reflect the
established regulatory principles. DoD has focused its
regulatory resources on the most serious 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, health affairs, transition assistance, and cyber security.
1. Acquisition,
Technology, and Logistics/Defense Procurement and Acquisition
Policy
(DPAP), Department of Defense
DPAP continuously reviews the DFARS
and continues to lead Government efforts to-
Improve
the presentation, clarity, and streamlining of the regulation by: (1)
implementing the new convention to construct clauses with alternates in a
manner whereby the alternate clauses are included in full-text; (2) removing
guidance that does not have a significant effect beyond the internal operating
procedure of the Department or impose a significant cost or administrative
impact on contractors or offerors, which is more appropriately addressed in the
DFARS Procedures, Guidance, and Information; and (3) removing obsolete reporting
or other requirements imposed on contractors. Such improvements ensure that the
regulation contracting officers, contractors, and offerors have a clear
understanding of the rules for doing business with the Department of Defense.
Obtain
early engagement with industry on procurement topics of high public interest
by: (1) utilizing the DPAP Defense Acquisition Regulation System website to
obtain early public feedback on newly enacted legislation that impacts the
Department's acquisition regulations, prior to initiating rulemaking to draft
the implementing rules; and (2) holding public meetings to solicit industry
feedback on proposed rulemakings.
Employ
methods to facilitate and improve efficiency of the contracting process such
as: (1) requiring the use of electronic forms; and (2) establishing that electronic
contract documents contained in Electronic Data Access system are official
contract documents. Use of electronic means to accomplish the contracting
process: (1) reduces the burden on both industry and the Department associated
with manual and duplicative data entry, and (2) removes limitations on access
to information.
2. Health Affairs, Department of Defense
The Department of Defense is able
to meet its dual mission of wartime readiness and peacetime health care for
those entitled to DoD medical care and benefits by operating an extensive
network of military medical treatment facilities supplemented by services
furnished by civilian health care providers and facilities through the TRICARE
program as administered under DoD contracts. TRICARE is a major health care
program designed to improve the management and integration of DoD's health care
delivery system.
The
Department of Defense's Military Health System (MHS) continues to meet the
challenge of providing the world's finest combat medicine and aeromedical
evacuation, while supporting peacetime health care for those entitled to DoD
medical care and benefits at home and abroad. The MHS brings together the
worldwide health care resources of the Uniformed Services (often referred to as
"direct care," usually within military treatment facilities) and supplements
this capability with services furnished by network and non-network civilian
health care professionals, institutions, pharmacies, and suppliers, through the
TRICARE program as administered under DoD contracts, to provide access to high
quality health care services while maintaining the capability to support
military operations. The TRICARE program serves 9.5 million Active Duty
Service Members, National Guard and Reserve members, retirees, their families,
survivors, and certain former spouses worldwide. TRICARE continues to offer an
increasingly integrated and comprehensive health care plan, refining and
enhancing both benefits and programs in a manner consistent with the law,
industry standard of care, and best practices, to meet the changing needs of
its beneficiaries. The program's goal is to increase access to health care
services, improve health care quality, and control health care costs.
The Defense Health
Agency plans to publish the following rule-
Proposed Rule: TRICARE Mental Health and Substance Abuse. This rule proposes revisions to the TRICARE regulation to reduce administrative barriers to access to mental health benefit coverage and to improve access to substance use disorder (SUD) treatment for TRICARE beneficiaries, consistent with earlier Department of Defense and Institute of Medicine recommendations, current standards of practice in mental health and addition medicine, and governing laws. This proposed rule has four main objectives: (1) to eliminate of quantitative and qualitative treatment limitations on SUD and mental health benefit coverage and align beneficiary cost-sharing for mental health and SUD benefits with those applicable to medical/surgical benefits; (2) to expand covered mental health and SUD treatment under TRICARE, to include coverage of intensive outpatient programs and treatment of opioid dependence; (3) to streamline the requirements for institutional providers to become TRICARE authorized providers; and (4) to develop TRICARE reimbursement methodologies for newly recognized mental health and SUD intensive outpatient programs and opioid treatment programs. DoD anticipates publishing the proposed rule in the second quarter of FY 2016.
3. Personnel and Readiness, Department of Defense
The Department of
Defense plans to publish rules regarding transition assistance for military personnel
and sexual assault prevention-
Interim
Final Rule: Transition Assistance for Military Personnel (TAP). This rule
establishes policy, assigns responsibilities, and prescribes procedures for
administration of the DoD Transition Assistance Program (TAP). The goal of TAP
is to prepare all eligible members of the Military Services for a transition to
civilian life, including preparing them to meet Career Readiness Standards
(CRS). The TAP provides information and training to ensure Service members
leaving Active Duty and eligible Reserve Component Service members being
released from active duty are prepared for their next step in life whether
pursuing additional education, finding a job in the public or private sector,
starting their own business or other form of self-employment, or returning to
school or an existing job. Service members receive training to meet CRS
through the Transition GPS (Goals, Plans, Success) curricula, including a core
curricula and individual tracks focused on Accessing Higher Education, Career
Technical Training, and Entrepreneurship. All Service members who are
separating, retiring, or being released from a period of 180 days or more of
continuous Active Duty must complete all mandatory requirements of the Veterans
Opportunity to Work (VOW) Act, which includes pre-separation counseling to
develop an Individual Transition Plan (ITP) and identify their career planning
needs; attend the Department of Veterans Affairs (VA) Benefits Briefings I and
II to understand what VA benefits the Service member earned, how to apply for
them, and leverage them for a positive economic outcome; and attend the
Department of Labor Employment Workshop (DOLEW), which focuses on the mechanics
of resume writing, networking, job search skills, interview skills, and labor
market research. DoD anticipates publishing the interim final rule in the first
quarter of FY 2016.
Interim
Final Rule; Amendment: Sexual Assault Prevention and Response (SAPR) Program.
The purpose of this rule is to implement DoD policy and assign responsibilities
for the SAPR Program on prevention, response, and oversight of sexual assault.
The goal is for DoD to establish a culture free of sexual assault through an
environment of prevention, education and training, response capability, victim
support, reporting procedures, and appropriate accountability that enhances the
safety and well-being of all persons. DoD anticipates publishing the interim
final rule in the second quarter of FY 2016.
Interim
Final Rule; Amendment: Sexual Assault Prevention and Response (SAPR) Program
Procedures. This rule establishes policy, assigns responsibilities, and
provides guidance and procedures for the SAPR Program. It establishes processes
and procedures for the Sexual Assault Forensic Examination Kit, the
multidisciplinary Case Management Group, and guidance on how to handle sexual
assault, SAPR minimum program standards, SAPR training requirements, and SAPR
requirements for the DoD Annual Report on Sexual Assault in the Military. The
DoD goal is a culture free of sexual assault through an environment of
prevention, education and training, response capability, victim support,
reporting procedures, and appropriate accountability that enhances the safety
and well-being of all persons. DoD anticipates publishing the interim final rule
in the second quarter of FY 2016.
4. Chief Information
Officer, Department of Defense
The Department of Defense plans to
publish the final rule for the Defense Industrial Base (DIB) Cybersecurity (CS)
Activities that implements statutory requirements for mandatory cyber incident
reporting while maintaining the voluntary cyber threat information sharing
program.
Interim
Final Rule: Defense Industrial Base (DIB) Cyber Security (CS) Activities.
DoD revised its DoD-DIB
Cybersecurity (CS) Activities regulation to mandate reporting of cyber
incidents that result in an actual or potentially adverse effect on a covered
contractor information system or covered defense information residing therein,
or on a contractor's ability to provide operationally critical support, and
modify eligibility criteria to permit greater participation in the voluntary
DoD-Defense Industrial Base (DIB) Cybersecurity (CS) information sharing
program. DoD anticipates publishing the final rule in the fourth quarter of FY
2016.