[No title available]

[Federal Register Volume 74, Number 233 (Monday, December 7, 2009)]

[Unknown Section]

[Pages 64189-64193]

From the Federal Register Online via the Government Publishing Office [www.gpo.gov]

[FR Doc No: X09-61207]

[[Page 64189]]

DEPARTMENT OF DEFENSE (DOD)

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),

ten Unified Combatant Commands, fourteen Defense Agencies, and ten DoD

Field Activities. It has 1,417,747 military personnel and 731,592

civilians assigned as of June 30, 2009, 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 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 Executive Order 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 straightforward,

yet a formidable undertaking.

DoD is not a regulatory agency, but occasionally it issues regulations

that have an effect on the public. These regulations, while small in

number compared to the regulating agencies, can be significant as

defined in Executive Order 12866. In addition, some of DoD's

regulations may affect the regulatory agencies. DoD, as an integral

part of its program, not only receives coordinating actions from the

regulating 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 12866.

Administration Priorities:

1. Rulemakings that Support the Administration's Regulation Agenda to

Streamline Regulations and Reporting Requirements

The Department plans to:

Revise the Defense Federal Acquisition Regulation Supplement

(DFARS) to delete obsolete restrictions on contracting with

foreign entities for the performance of research and

development in connection with any weapon system or other

military equipment for DoD.

Review of the DFARS requirements for reporting the loss,

theft, damage, or destruction of Government property.

Review of the DFARS requirements for reporting Government

Furnished Equipment and Government Furnished Material in

the DoD Item Unique Identification (IUID) registry.

Review of the DFARS requirements for Unique Item Identifier

marking of Government-furnished Equipment.

Simplify and clarify the DFARS coverage of patents, data, and

copyrights, dramatically reducing the amount of regulatory

text and the number of required clauses.

Simplify and clarify the DFARS coverage of multiyear

acquisitions.

Finalize the DFARS rule that makes the required changes to

conform the DFARS to the Federal Acquisition Regulation

(FAR) implementation of the OFPP waivers of certain

statutory requirements when acquiring of COTS items.

Improve the contract closeout process.

2. Regulations of Particular Interest to Small Business

Of interest to Small Businesses are regulations to:

Revise the FAR and DFARS to implement the use of Electronic

Subcontracting Reporting System for both summary and

individual subcontracting reporting.

Consider revisions to the FAR to address the findings of the

Rothe case that Federal contracting programs for minority-

owned and other small businesses that implement 10 U.S.C.

2323 are ``facially unconstitutional.''

Revise the FAR to implement changes in the HUBZone Program, in

accordance with Small Business Administration regulations.

Revise the FAR to clarify the criteria for sole source awards

to service-disabled veteran-owned small businesses

concerns.

3. Regulations with International Effects or Interest

Of international effect or interest are regulations to:

Finalize the FAR rule implementing the American Recovery and

Reinvestment Act of 2009 buy American requirements for

construction material.

Finalize the DFARS rule that prohibits procurement of steel

for construction projects or activities for which American

steel producers, fabricators, and manufacturers have been

denied the opportunity to compete for such steel

procurement.

Implement in the DFARS the determinations regarding

participation of South Caucasus/Central and South Asian

states in acquisitions in support of operations in

Afghanistan.

Finalize the DFARS rule that provides authority to limit

competition in the acquisition of products or services,

other than small arms, acquired in support of operations in

Iraq or Afghanistan.

Clarify in the DFARS the criteria for deciding whether a

company is located in Iraq or Afghanistan.

Consider whether to revise the DFARS regulations relating to

acquisition of spare or replacement parts from the original

foreign manufacturer.

Revise the DFARS to implement the pending Defense Procurement

Trade Cooperation Treaties with the United Kingdom and

Australia, upon ratification.

Finalize the DFARS rule that implements the determination that

authorizes acquisition of articles containing para-aramid

fibers and yarns manufactured in a qualifying country, in

accordance with section 807 of the National Defense

Authorization Act for FY 1999.

Revise the FAR and DFARS list of least designated countries

under the Trade Agreements Act to add Taiwan,

[[Page 64190]]

Peru, Costa Rica, and Oman (FAR only).

Revise the FAR list of articles that are domestically non-

available.

Finalize the FAR rule that prohibits Federal contractors from

restricted business operations in Sudan and imports from

Burma.

Finalize the FAR rule that prohibits Government contracts with

any foreign incorporated entity that is treated as an

inverted domestic corporation under section 835(b) of the

Homeland Security Act of 2002 or any subsidiary of such

entity.

4. Suggestions From the Public for Reform--Status of DoD Items

Rulemaking Actions in Response to Public Nominations

The Army Corps of Engineers has not undertaken any rulemaking actions

in response to the public nominations submitted to the Office of

Management and Budget in 2001, 2002, or 2004. Those nominations were

discussed in:

Making Sense of Regulation: 2001 Report to Congress on the

Costs and Benefits of Regulations and Unfunded Mandates on

State, Local, and Tribal Entities.

Stimulating Smarter Regulation: 2002 Report to Congress on the

Costs and Benefits of Regulations and Unfunded Mandates on

State, Local, and Tribal Entities.

Progress in Regulatory Reform: 2004 Report to Congress on the

Costs and Benefits of Federal Regulations and Unfunded

Mandates on State, Local, and Tribal Entities.

Specific DoD Priorities:

For this Regulatory Plan, there are six specific DoD priorities, all of

which reflect the established regulatory principles. In those areas

where rulemaking or participation in the regulatory process is

required, DoD has studied and developed policy and regulations that

incorporate the provisions of the President's priorities and objectives

under the Executive Order.

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, homeowners, education, health

affairs, and the National Security Personnel System.

1. Defense Procurement and Acquisition Policy

The Department of Defense continuously reviews the DFARS and continues

to lead Government efforts to:

Finalize the FAR rules that implement the regulations relating

to the American Recovery and Reinvestment Act of 2009 --

Reporting Requirements, Publicizing Contract Actions,

Whistleblower Protection, and GAO/IG Access to Contractor

Employees.

Revise the DFARS to implement the Weapons System Acquisition

Reform Act of 2009 -- including acquisition strategies to

ensure competition throughout life-cycle of major defense

acquisition programs and address organizational conflicts

of interest in major defense acquisition programs.

Revise DFARS to ensure continuation of contractor services in

support of mission essential functions during an emergency,

such as an influenza pandemic.

Revise the FAR to implement the Executive Orders relating to

project labor agreements, allowability of labor relations

costs, non-displacement of qualified workers, and

notification of employee rights under Federal labor laws.

Revise the FAR to address service contractor employee personal

conflicts of interest and organizational conflicts of

interest and limit contractor access to information.

Revise the FAR to establish a Federal database for Federal

agency contract and grant officers and suspension and

debarment officials, to track information relating to

awardees of Federal contracts and grants.

Revise the FAR to require contractors to verify, through the

use of the E-Verify System, that certain of their employees

are eligible to work in the United States.

Enhance competition by:

-- Limiting the length of contracts awarded non-competitively under

``unusual and compelling urgency'' circumstances to the

minimum contract period necessary to meet requirements, not

to exceed one year, unless approved by the head of the

contracting activity.

-- Requiring publication of notices on FedBizOpps of all sole source

task or delivery orders in excess of the simplified

acquisition thresholds that are placed against multiple

award contracts or multiple award blanket purchase

agreements.

-- Requiring post-award debriefings be provided, as requested, to

disappointed offerors on task and delivery orders in excess

of $5 million (including options).

-- Requiring public disclosure of justification and approval documents

for noncompetitive contracts.

Provide enhanced competition for task and delivery order

contracts and additional market research before awarding a

task or delivery order in excess of the simplified

acquisition threshold.

2. Logistics and Materiel Readiness, Department of Defense

The Department of Defense published or plans to publish rules on

contractors supporting the military in contingency operations:

Interim Final Rule: Private Security Contractors (PSCs)

Operating in Contingency Operations. In order to meet the

mandate of Section 862 of the 2008 National Defense

Authorization Act, this rule establishes policy, assigns

responsibilities and provides procedures for the regulation

of the selection, accountability, training, equipping, and

conduct of personnel performing private security functions

under a covered contract during contingency operations. It

also assigns responsibilities and establishes procedures

for incident reporting, use of and accountability for

equipment, rules for the use of force, and a process for

administrative action or the removal, as appropriate, of

PSCs and PSC personnel. DoD published an interim final rule

on July 17, 2009 (74 FR 34690-34694) with an effective date

of July 17, 2009. The comment period ended August 31, 2009.

Proposed Rule: Program Management of Operational Contract

Support for Contingency Operations. This rule will

incorporate the latest changes and lessons learned into

policy and procedures for program management for the

preparation and execution of contracted support and the

integration of DoD contractor personnel into military

contingency operations outside the United States. DoD

anticipates publishing the proposed rule in the first or

second quarter of FY 2010.

3. Installations and Environment, Department of Defense

[[Page 64191]]

The Department of Defense has published a rule to assist eligible

military and civilian Federal employee homeowners:

Interim Final Rule: This rule continues to authorize the

Homeowners Assistance Program (HAP) under section 3374 of

title 42, United States Code, to assist eligible military

and civilian Federal employee homeowners when the real

estate market is adversely affected by closure or

reduction-in-scope of operations. In accordance with DoD

Directive 5101.1, DoD Executive Agent,`` designates the

Secretary of the Army as the DoD Executive Agent for

administering, managing, and executing the HAP.

Additionally, this rule will allow the Department of

Defense to temporarily expand the existing HAP in

compliance with section 1001 of the American Recovery and

Reinvestment Act of 2009. This temporary expansion covers

certain persons affected by BRAC 2005, certain persons on

permanent change of station orders, and certain wounded

persons and surviving spouses. This rule updates policy,

delegates authority, and assigns responsibilities for

managing Expanded HAP. This is an economically significant

rule. The interim final rule was published September 30,

2009 (74 FR 50109), with an effective date of September 30,

2009. The comment period ended October 30, 2009. DoD

anticipates publishing a final rule in the third quarter of

FY 2010.

4. Personnel and Readiness, Department of Defense

The Department of Defense published or plans to publish a rule

implementing the Post-9/11 Veterans Educational Assistance Act of 2008,

title V, P.L. 110-252 (the ``Post-9/11 GI Bill''):

Interim Final Rule: This rule establishes policy, assigns

responsibilities, and prescribes procedures for carrying

out the Post-9/11 GI Bill. It establishes policy for the

use of supplemental educational assistance ``kickers,'' for

members with critical skills or specialties, or for members

serving additional service; for authorizing the

transferability of education benefits; and for the DoD

Education Benefits Fund Board of Actuaries. DoD published

an interim final rule on June 25, 2009 (74 FR 30212-30220)

with an effective date of June 25, 2009. The comment period

ended July 27, 2009.

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 CHAMPUS/TRICARE: Inclusion of TRICARE Retail

Pharmacy Program in Federal Procurement of Pharmaceuticals.

This rule implements changes directed by the enactment of

National Defense Authorization Act for Fiscal Year 2008

(NDAA-08), Pub. L. 110-181, to the extent necessary to

ensure pharmaceuticals, paid for by the DoD that are

provided by pharmacies under the TRICARE Retail Pharmacy

Program (TRRx) to eligible beneficiaries, are subject to

the pricing standards under section 8126 of title 38 United

States Code. This is an economically significant rule. The

proposed rule was published July 25, 2008 (73 FR 43394).

The comment period ended September 23, 2008. The final rule

published March 17, 2009 (74 FR 11279-11293) with an

effective date of May 26, 2009.

Final rule on TRICARE: Outpatient Prospective Payment System

(OPPS). The rule implements a prospective payment system

for hospital outpatient services similar to that furnished

to Medicare beneficiaries, as set forth in section 1833(t)

of the Social Security Act. The rule also recognizes

applicable statutory requirements and changes arising from

Medicare's continuing experience with its system, including

certain related provisions of the Medicare Prescription

Drug, Improvement, and Modernization Act of 2003. While

TRICARE intends to remain as true as possible to Medicare's

basic OPPS methodology (i.e., adoption and updating of the

Medicare data elements used in calculating the prospective

payment amounts), there will be some significant deviations

required to accommodate the uniqueness of the TRICARE

program. These deviations have been designed to accommodate

existing TRICARE benefit structure and claims processing

procedures implemented under the TRICARE Next Generation

Contracts (T-NEX) while at the same time eliminating any

undue financial burden to TRICARE Prime, Extra and Standard

beneficiary populations. The proposed rule was published

April 1, 2008 (73 FR 17271). The comment period ended June

2, 2008. The final rule published December 10, 2008 (73 FR

74945-74966) with an effective date of February 9, 2009.

DoD published a notice on February 6, 2009 (74 FR 6228)

delaying the effective date of the final rule to May 1,

2009 and re-opening the final rule for comment. The comment

period ended March 9, 2009. DoD then published a notice May

8, 2009 (74 FR 21547) responding to the comments received.

The effective date of the final rule remained May 1, 2009.

Final rule on TRICARE: Relationship Between the TRICARE

Program and Employer-Sponsored Group Health Coverage. This

rule implements section 1097c of title 10, United States

Code. This law prohibits employers from offering incentives

to TRICARE-eligible employees to not enroll, or to

terminate enrollment, in an employer-offered Group Health

Plan (GHP) that is or would be primary to TRICARE.

Cafeteria plans that comport with section 125 of the

Internal Revenue Code will be permissible so long as the

plan treats all employees the same and does not illegally

take TRICARE eligibility into account. The proposed rule

was published March 28, 2008 (73 FR 16612). The comment

period ended May 27, 2008. DoD anticipates publishing a

final rule in the first quarter of FY 2010.

Final rule on TRICARE: Authorization of Forensic Examinations.

This rule implements section 701 of the John Warner

National Defense Authorization Act for FY 2007, Public Law

109-364. Section 701 amends Title 10 of the United States

Code (U.S.C.), Chapter 55, Section 1079(a) by authorizing

coverage for forensic examinations following a sexual

assault or domestic violence for eligible beneficiaries.

This authorizes forensic examinations provided in civilian

health care facilities (e.g., civilian rape crisis

facilities) following sexual assault or domestic

[[Page 64192]]

violence, which is consistent with the services that are

authorized in Military Medical Treatment Facilities for all

beneficiaries who are victims of sexual assault or domestic

violence. The proposed rule was published July 7, 2008 (73

FR 38348-38350). The comment period ended September 5,

2008. The final rule published July 17, 2009 (74 FR 34649-

34696) with an effective date of August 17, 2009.

6. National Security Personnel System, Department of Defense

On November 1, 2005 (70 FR 66115-66164), the Department of Defense and

the Office of Personnel Management (OPM) issued final regulations to

establish the National Security Personnel System (NSPS), a human

resources management system, within DoD, as authorized by the National

Defense Authorization Act (Pub. L. 108-136, November 24, 2003). These

regulations govern basic pay, staffing, classification, performance

management, labor relations, adverse actions, and employee appeals.

These regulations are designed to ensure that the DoD's human resources

management and labor relations systems align with its critical mission

requirements and protect the civil service rights of its employees.

Subsequent legislation in the National Defense Authorization Act (Pub.

L. 110-181, January 28, 2008) required revision of the NSPS regulation.

DoD and OPM published a proposed rule on May 22, 2008 (73 FR 29882-

29927). The period for public comment ended on June 23, 2008. The final

rule published September 26, 2008 (73 FR 56344-56420) with an effective

date of October 7, 2008. A correction to the final rule effective date

published on October 7, 2008 (73 FR 58435). The effective date was

corrected to November 25, 2009.

DoD and OPM published a proposed rule on December 3, 2008 (73 FR 73606-

73716) to add a Staffing and Employment subpart to the final rule that

was published on September 26, 2008. The period for public comment

ended on January 2, 2009. The final rule published January 16, 2009 (74

FR 2757-2770) with an effective date of March 17, 2009.

On July 16, 2009, a task group under the Defense Business Board (DBB)

made recommendations to significantly alter the National Security

Personnel System (NSPS). The final report of the DBB will be to the

Department of Defense and the Office of Personnel Management (OPM). The

recommendations may be adopted or rejected. If adopted, some of the

recommendations may be implemented under the current regulation.

However, it is likely that the regulation will require substantial

revision

DoD and OPM anticipate publishing a proposed rule in late winter 2010

and a final rule in the fall of 2010, to be effective 60 days after

final action.

_______________________________________________________________________

DOD--Office of the Secretary (OS)

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FINAL RULE STAGE

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36. HOMEOWNERS ASSISTANCE PROGRAM (HAP)

Priority:

Economically Significant. Major under 5 USC 801.

Legal Authority:

42 USC 3374

CFR Citation:

32 CFR 239

Legal Deadline:

None

Abstract:

This rule continues to authorize the Homeowners Assistance Program

(HAP) under section 3374 of title 42, United States Code, to assist

eligible military and civilian Federal employee homeowners when the

real estate market is adversely affected by closure or reduction-in-

scope of operations. In accordance with DoD Directive 5101.1, DoD

Executive Agent,`` designates the Secretary of the Army as the DoD

Executive Agent for administering, managing, and executing the HAP.

Additionally, this rule will allow the Department of Defense to

temporarily expand the existing Homeowners Assistance Program (HAP) in

compliance with The American Recovery and Reinvestment Act of 2009

(ARRA). This temporary expansion covers certain persons affected by

BRAC 2005, certain persons on permanent change of station (PCS) orders,

and certain wounded persons and surviving spouses. This rule updates

policy, delegates authority, and assigns responsibilities for managing

Expanded HAP.

Statement of Need:

This rule continues to authorize the Homeowners Assistance Program

(HAP) under section 3374 of title 42, United States Code, to assist

eligible military and civilian Federal employee homeowners when the

real estate market is adversely affected by closure or reduction-in-

scope of operations. It updates policy, delegates authority, and

assigns responsibilities for managing HAP. In accordance with DoD

Directive 5101.1, ``DoD Executive Agent,'' designates the Secretary of

the Army as the DoD Executive Agent for administering, managing, and

executing the HAP.

Additionally, this rule will allow the Department of Defense to

temporarily expand the existing HAP in compliance with section 1001 of

the American Recovery and Reinvestment Act of 2009 (ARRA). This rule

updates policy, delegates authority, and assigns responsibilities for

managing Expanded HAP.

Summary of Legal Basis:

42 U.S.C. 3374

Alternatives:

Required by 42 U.S.C. 3374. No alternatives considered.

Anticipated Cost and Benefits:

There is no cost to the public. Administrative costs to the Department

of Defense for implementation of the authorities under this rule are

eight percent of the $555 million appropriated to fund the Expanded

HAP. Workload will be accomplished with additional staffing and will be

integrated into normal business.

Risks:

The rule will allow the Department of Defense to expand HAP to assist

military families and DoD civilians who recently sold their homes at a

loss. This temporary expansion covers certain persons affected by BRAC

2005, certain persons on permanent change of station orders, and

certain wounded persons and surviving spouses.

Timetable:

_______________________________________________________________________

Action Date FR Cite

_______________________________________________________________________

Interim Final Rule 09/30/09 74 FR 50109

Interim Final Rule

Effective 09/30/09

Interim Final Rule

Comment Period End 10/30/09

Interim Final Rule

Comment Period

Extended 11/16/09 74 FR 58846

Interim Final Rule

Comment Period End 01/15/10

Final Action 04/00/10

Regulatory Flexibility Analysis Required:

No

[[Page 64193]]

Small Entities Affected:

No

Government Levels Affected:

Federal

Agency Contact:

Deanna Buchner

Department of Defense

Office of the Secretary

3000 Defense Pentagon

Washington, DC 20301-3000

Phone: 703 602-4353

RIN: 0790-AI58

BILLING CODE 5001-06-S