In FY 2019, based primarily on the ongoing work of the Task Force, DoD expects to publish more deregulatory actions than regulatory actions. Exact figures are not yet available as the regulations reported in this edition of the Unified Agenda are still under evaluation for classification under Executive Order 13771. Additionally, the Task Force will continue working to execute directives under Executive Orders 13783 and 13807 to streamline its regulatory process and permitting reviews.

In addition to reform efforts, DoD is also mindful of the importance of international regulatory cooperation, consistent with domestic law and trade policy, as described in Executive Order 13609, "Promoting International Regulatory Cooperation" (May 1, 2012). For example, DoD, 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. In this context, 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.

DoD Priority Regulatory Actions

As stated above, OUSD (A&S), OUSD (P&R), and the Department of the Army will be planning actions that are considered the most important significant DoD regulatory actions for FY 2019. During the next year, these DoD Components plan to publish 15 rulemaking actions that are designated as significant actions. Further information on these actions is provided below.

OUSD (A&S)/Defense Pricing and Contracting (DPC)

DPC is responsible for all contracting and procurement policy matters in the Department and uses the Defense Acquisition Regulations System (DARS) to develop and maintain acquisition rules and to facilitate the acquisition workforce as they acquire goods and services. For this component, DoD is highlighting the following rules:

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

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

Brand Name or Equal (DFARS Case 2017-D040). RIN: 0750-AJ50.

This rule proposes to amend the DFARS to implement section 888 of the NDAA for FY 2017. Section 888 requires DoD to justify when a solicitation includes "brand name or equal" specifications, which could limit competition by unnecessarily restricting offerors to a limited set of specifications. Currently, if the Government intends to procure specific "brand name" products, the contracting officer must prepare a justification and obtain the appropriate approval based on the estimated dollar value of the contracts. However, a justification is not required to use "brand name or equal" descriptions in a solicitation. To implement section 888, this rule proposes to amend the DFARS to require contracting officers to obtain an approval of a justification for use of "brand name or equal" descriptions, which would then be posted with the covered solicitation. It is expected that this rule will both promote transparency with industry by disclosing the basis for the Government's decision to limit competition and, in turn, present an opportunity to increase competition.

Rulemakings that streamline regulations and reduce unjustified burdens.

Contractor Purchasing System Review Threshold (DFARS Case 2017-D038). RIN: 0750-AJ48.

This rule proposes to amend the DFARS to raise the threshold for determining when a contractor purchasing system review (CPSR) is required. The Government will conduct a CPRS in order to evaluate the efficiency and effectiveness with which a prime contractor spends Government funds and complies with Government policy when subcontracting. Currently, if a prime contractor's sales to the Government are expected to exceed $25 million during the next 12 months, then the administrative contracting officer (ACO) will determine whether there is a need for a CPSR. This rule proposes to amend the DFARS to raise the dollar threshold at which an ACO makes the determination to conduct a CPSR to $50 million for DoD contracts. It is expected that this rule may reduce the number of CPSRs conducted by DoD and, in turn, alleviate the burden on contractors associated with participating in the CPSR.

Rules modifying, streamlining, expanding, or repealing regulations making DOD's regulatory program more effective or less burdensome in achieving regulatory objectives.

Submission of Summary Subcontract Reports (DFARS Case 2017-D005). RIN: 0750-AJ42.

This rule proposes to amend the DFARS to clarify the entity to which contractors submit Summary Subcontract Reports in the Electronic Subcontracting Reporting System (eSRS) and to clarify the entity that acknowledges receipt of, or rejects, the reports in eSRS. This rule streamlines the submission and review of Summary Subcontract Reports (SSRs) for DoD contractors and brings the DFARS into compliance with changes in the Federal Acquisition Regulation. Instead of submitting multiple SSRs to various departments and agencies within DoD, contractors with individual subcontracting plans will submit a single, consolidated SSR in eSRS at the DoD level. The consolidated SSR will be acknowledged or rejected in eSRS at the DoD level.

OUSD (P&R)/Assistance Secretary of Defense for Health Affairs

The mission of DoD's health program is to enhance the Department of Defense and our Nation's security by providing health support for the full range of military operations and sustaining the health of all those entrusted to our care by creating a world-class health care system that supports the military mission by fostering, protecting, sustaining and restoring health.

TRICARE is the health care program for uniformed service members including active duty and retired members of the U.S. Army, U.S. Air Force, U.S. Navy, U.S. Marine Corps, U.S. Coast Guard, the Commissioned Corps of the U.S. Public Health Service and the Commissioned Corps of the National Oceanic and Atmospheric Association and their families around the world. It serves 9.5 million individuals worldwide. It 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.

For this component, DoD is highlighting the following rule:

Establishment of TRICARE Select and Other TRICARE Reforms. RIN: 0720-AB70.

This final rule implements the primary features of section 701 and partially implements several other sections of the National Defense Authorization Act for Fiscal Year 2017 (NDAA-17). The rule makes significant changes to the TRICARE program, especially to the health maintenance organization (HMO)-like health plan known as TRICARE Prime; to the preferred provider organization (PPO) health plan previously known as TRICARE Extra and replaced by TRICARE Select; and to the third health care option known as TRICARE Standard, which was terminated December 31, 2017, and is also replaced by TRICARE Select.

The statute also adopts a new health plan enrollment system under TRICARE and new provisions for access to care, high value services, preventive care, and healthy lifestyles. In implementing section 701 and partially implementing several other sections of NDAA-17, this rule advances all four components of the Military Health System's quadruple aim of improved readiness, better care, better health, and lower cost. The aim of improved readiness is served by reinforcing the vital role of the TRICARE Prime health plan to refer patients, particularly those needing specialty care, to military medical treatment facilities (MTFs) in order to ensure that military health care providers maintain clinical currency and proficiency in their professional fields.

The objective of better care is enhanced by a number of improvements in beneficiary access to health care services, including increased geographical coverage for the TRICARE Select provider network, reduced administrative hurdles for TRICARE Prime enrollees to obtain urgent care services and specialty care referrals, and promotion of high value services and medications. The goal of better health is advanced by expanding TRICARE coverage of preventive care services, treatment of obesity, high-value care, and telehealth. Finally, the aim of lower cost is furthered by refining cost-benefit assessments for TRICARE plan specifications that remain under DoD's discretion and adding flexibilities to incentivize high-value health care services.

USACE

The United States Army Corps of Engineers (USACE), is a major Army command made up of some 37,000 civilian and military personnel, making it one of the world's largest public engineering, design, and construction management agencies. Although generally associated with flood and coastal storm damage reduction, commercial navigation, and aquatic ecosystem restoration in the United States, USACE is involved in a wide range of public works throughout the world.

The USACE's mission is to "Deliver vital public and military engineering services; partnering in peace and war to strengthen our Nation's security, energize the economy and reduce risks from disasters." The most visible missions include:

• Water resources development activities including flood risk management, navigation, aquatic ecosystem restoration, recreation, emergency response, and environmental stewardship
• Design and construction management of military facilities for the Army, Air Force, Army Reserve and Air Force Reserve and other Defense and Federal agencies.

For this component, DoD is highlighting the following rules.

Waters of the United States. RINs: 0710-AA79, 0710-AA80.

In 2015, the Environmental Protection Agency and the Department of the Army ("the agencies") published the "Clean Water Rule: Definition of 'Waters of the United States" (80 FR 37054, June 29, 2015). On October 9, 2015, the U.S. Court of Appeals for the Sixth Circuit stayed the 2015 rule nationwide pending further action of the court. On February 28, 2017, the President signed Executive Order 13778, "Restoring the Rule of Law, Federalism, and Economic Growth by Reviewing the 'Waters of the United States' Rule" which instructed the agencies to review the 2015 rule and rescind or replace it as appropriate and consistent with law. On July 27, 2017, the agencies published a Federal Register notice proposing to repeal (STEP 1 of a comprehensive 2-STEP process) the 2015 Clean Water Rule (2015 Rule) and recodify the pre-existing regulations; the initial 30-day comment period was extended an additional 30 days to September 28, 2017. The agencies signed a supplemental notice of proposed rulemaking on June 29, 2018, clarifying and seeking additional comment on the proposal.

In Step 2 (Revised Definition of 'Waters of the United States'), the agencies plan to propose a new definition that would replace the prior regulations and the approach in the CWR2015 Rule. In determining the possible new approach, the agencies are considering defining "navigable waters" in a manner consistent with the plurality opinion of Justice Antonin Scalia in the Rapanos decision, as instructed by Executive Order 13778, "Restoring the Rule of Law, Federalism, and Economic Growth by Reviewing the 'Waters of the United States' Rule."

On February 6, 2018, the agencies issued a final rule adding an applicability date to the CWR2015 Rule of February 6, 2020, to provide continuity and certainty for regulated entities, the States and Tribes, and the public while the agencies conduct STEP 2 of the rulemaking. Until the new definition is finalized, the agencies will continue to implement the regulatory definition in place prior to the CWR consistent with Supreme Court decisions and practice, and as informed by applicable agency guidance documents.

Regulatory Program of the Army Corps of Engineers Tribal Consultation and National Historic Preservation Act compliance. RIN: 0710-AA75.

The USACE recognizes the sovereign status of Indian tribes (as defined by Executive Order 13175) and our obligation for pre-decisional government-to-government consultation, as established through and confirmed by the U.S. Constitution, treaties, statutes, executive orders, judicial decisions, and Presidential documents and policies, on proposed regulatory actions (e.g., individual permit decisions and general permit verifications). The USACE Regulatory Program's regulations for considering the effects of its actions on historic properties as required under Section 106 of the National Historic Preservation Act (NHPA) are outlined at 33 CFR 325 Appendix C. Since these regulations were promulgated in 1990, there have been amendments to the NHPA and revisions to Advisory Council on Historic Preservation's (ACHP) regulations at 36 CFR part 800 subpart B, addressing, among other things, tribal consultation requirements. In response, the USACE issued interim guidance until rulemaking could be completed in order to ensure full compliance with the NHPA and ACHP's regulations. The USACE seeks to revise its regulations to conform to these requirements.

Policy for Domestic, Municipal, and Industrial Water Supply Uses of Reservoir Projects Operated by the Department of the Army, U.S. Army Corps of Engineers. RIN: 0710-AA72.

The USACE is updating and clarifying its policies governing the use of its reservoir projects for domestic, municipal and industrial water supply pursuant to Section 6 of the Flood Control Act of 1944 and the Water Supply Act of 1958 (WSA). The USACE intends through this rulemaking to explain and improve its interpretations and practices under these statutes. The rule is intended to enhance the USACE's ability to cooperate with State and local interests in the development of water supplies in connection with the operation of its reservoirs for federal purposes as authorized by Congress, to facilitate water supply uses of USACE reservoirs by others as contemplated under applicable law, and to avoid interfering with lawful uses of water by any entity when the USACE exercises its discretionary authority under either section 6 or the WSA. The rule would apply only to reservoir projects operated by the USACE, not to projects operated by other federal or non-federal entities, and it would not impose requirements on any other entity, alter existing contractual arrangements at USACE reservoirs, or require operational changes at any Corps reservoir.

Natural Disaster Procedures: Preparedness, Response, and Recovery Activities of the Corps of Engineers. RIN: 0710-AA78.

The USACE is proposing to update its regulations for USACE's natural disaster procedures pursuant to Section 5 of the Flood Control Act of 1941, as amended (33 U.S.C. 701n), commonly referred to as Public Law 84-99. The revisions are necessary to incorporate elements of the Water Resources and Reform Development Act of 2014 (WRRDA 2014), and update procedures concerning USACE authority to address disaster preparedness, response, and recovery activities. The revisions relating to WRRDA 2014 include the authority to implement modifications to Flood Control Works (FCW) and Coastal Storm Risk Management Projects (formerly referred to as Hurricane and Shore Protection Projects); and the authority to implement nonstructural alternatives to rehabilitation, if requested by the non-federal sponsor. Other significant changes under consideration include revisions to the eligibility criteria for rehabilitation assistance for FCW, an increase to the minimum repair cost for FCW projects, revised policies to address endangered species and vegetation management during rehabilitation, and a change in the cost share for emergency measures constructed using permanent construction standards.

Compensatory Mitigation for Losses of Aquatic Resources - Review and Approval of Mitigation Banks and In-Lieu Fee Programs. RIN: 0710-AA83.

This rule proposes to amend the regulations governing the review and approval process for mitigation banks and in-lieu fee programs, which are used to provide compensatory mitigation that offsets losses of jurisdictional waters and wetlands authorized by Department of the Army permits. Those regulations also include time frames for certain steps in the mitigation bank and in-lieu fee program review and approval process. The review and approval process for mitigation banks and in-lieu fee programs includes an opportunity for public and agency review and comment, as well as a second review by an interagency review team. The interagency review team consists of federal, tribal, state, and local agencies that review documentation and provide the United States Army Corps of Engineers (USACE) with advice on the establishment and management of mitigation banks and in-lieu fee programs. The USACE is reviewing the review and approval process and the interagency review team process in particular to determine whether and how it can enhance the efficiency of those processes. An increase in efficiency could result in savings to the public if it results in similar or improved outcomes with shorter review times and thereby reduce risk and uncertainty for mitigation bank and in-lieu fee program sponsors and the costs they incur in obtaining mitigation banking or in-lieu fee program instruments. An increase in review efficiency could also decrease the resources other federal, tribal, state, and local agencies expend in reviewing these activities, attending meetings, participating in site visits, and providing their comments to the USACE.

Modification of Nationwide Permits. RIN: 0710-AA84.

The USACE issues nationwide permits to authorize specific categories of activities in jurisdictional waters and wetlands that have no more than minimal individual and cumulative adverse environmental effects. The issuance and reissuance of nationwide permits must be done every five years to continue the Nationwide Permit Program. The nationwide permits were last issued on December 21, 2016, and expire on March 18, 2022. On October 25, 2017, the USACE issued a report to meet the requirements of Executive Order 13783, Promoting Energy Independence and Economic Growth. In that report, the USACE recommended changes to nine nationwide permits that authorize activities related to domestic energy production and use, including oil, natural gas, coal, and nuclear energy sources, as well as renewable energy sources such as flowing water, wind, and solar energy. This rulemaking action would seek to review and, if appropriate, modify those nine nationwide permits in accordance with the opportunities identified in the report in order to reduce burdens on the public. In addition, the Corps is considering modifying an additional 23 nationwide permits to allow federal agencies to select and use nationwide permits without additional USACE review. This rulemaking action would help simplify the nationwide permit authorization process.