[The Regulatory Plan and Unified Agenda of Federal Regulations]
[Department of Defense Regulatory Plan]
[From the U.S. Government Printing Office, www.gpo.gov]


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), 
nine Unified Combatant Commands, 16 Defense Agencies, and nine DoD 
Field Activities. It has over 1,500,000 military personnel and 850,000 
civilians assigned as of June 30, 1995, and over 500 military 
installations and properties in the continental United States, U.S. 
Territories, and foreign countries. The overall size, composition, and 
dispersion of the Department of Defense, coupled with a new and 
innovative regulatory program, presents a challenge to the management 
of the Defense regulatory program under Executive Order 12866 of 
September 30, 1993.
Because of its nature, composition, and size, the DoD is impacted by 
the regulations issued by regulatory agencies such as the Departments 
of Energy, Health and Human Services, Housing and Urban Development, 
Labor, and 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 regulating agencies 
and the affected Defense Components. Coordinating the proposed 
regulations in advance throughout an organization as large as the DoD 
is a straightforward, yet formidable undertaking.
The DoD is not a regulatory agency, but in the course of its 
operations, it does issue regulations on occasion. These regulations, 
while small in number compared to those of the regulating agencies, can 
be significant as defined in Executive Order 12866. In addition, some 
of DoD's regulations may impact the regulatory agencies. An example of 
this is the Base Closure Community Revitalization requiring 
coordination with the Departments of Housing and Urban Development and 
Health and Human Services. DoD, as a part of its new program, is not 
only receiving coordinating actions from the regulating agencies but is 
coordinating with the agencies that are impacted by its regulations.
The regulatory program for the DoD fully incorporates the provisions of 
the President's priorities and objectives under Executive Order 12866. 
Promulgating and implementing the new regulatory program throughout DoD 
presents a unique challenge to the management of our regulatory 
efforts.
Coordination
Interagency
DoD has been receiving regulatory plans from those agencies that impact 
the operation of the Department through the issuance of regulations. A 
system for coordinating the review process is in place, regulations 
have been reviewed, and comments have been forwarded to the Office of 
Management and Budget. The system is working in the Department, and the 
feedback from the Defense Components is most encouraging. For the first 
time, they are able to see and comment on regulations from the other 
agencies before they are required to comply with them. One example of 
this is the coordination of DoD's regulations on community 
revitalization with the Department of Housing and Urban Development, 
the Department of Health and Human Services, the General Services 
Administration, and the public. The coordination process in DoD is 
working as outlined in Executive Order 12866.
Internal
Through regulatory program points of contact in the Department, we have 
established a system that provides information from the Vice President 
and the Administrator of the Office of Information and Regulatory 
Affairs (OIRA) to the personnel responsible for the development and 
implementation of DoD regulations. Conversely, the system can provide 
feedback from DoD regulatory personnel to the Administrator, OIRA. The 
changes in the internal communications on the regulatory program have 
been well received within the Department.
Overall Priorities
The Department of Defense needs to function at a reasonable cost, while 
eliminating ineffective and unnecessarily burdensome regulations. The 
process should respond in a timely manner, be efficient, cost-
effective, and both fair and perceived as fair. This is being done at a 
time when there is significant downsizing in the Department and it will 
need to react 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, adheres to the general principles set forth in 
Executive Order 12866 as amplified below.
Problem Identification
Congress typically passes legislation to authorize or require an agency 
to issue regulations and often is quite specific about the problem 
identified for correction. Therefore, DoD does not generally initiate 
regulations as a part of its mission.
Conflicting Regulations
DoD does not plan to issue any significant regulations this year, and 
the probability of developing conflicting regulations is low. On the 
other hand, DoD is impacted to a great degree by the regulating 
agencies. From that perspective, DoD is in a position to advise the 
regulatory agencies of conflicts that appear to exist, using the 
coordination processes that have been developed as a part of the new 
way of doing business in the DoD and Federal agency regulatory 
programs. It is a priority in the Department to communicate with other 
agencies and the affected public to identify and proactively pursue 
regulatory problems that occur as a result of conflicting regulations 
both within and without the Department.
Alternatives
DoD will identify feasible alternatives that will obtain the desired 
regulatory objectives. Where possible, the Department encourages the 
use of incentives to include financial, quality of life, and others to 
achieve the desired regulatory results.
Risk Assessment
A priority in DoD is the assessment and minimization of risk. In the 
regulation on community revitalization, the risk was ameliorated by 
incorporating the alternatives involving the risk into the regulation. 
The Department will either recover the cost of the property through 
outright sale, or in the case of conveyance, recover the cost later in 
a financial arrangement with the redevelopment authority.
Cost-Effectiveness
One of the highest priority objectives of DoD is to obtain the desired 
regulatory objective by the most cost-effective method available. This 
may or may not be through the regulatory process. If a regulation is 
required, DoD will consider incentives for innovation to achieve 
desired results, consistency in the application of the regulation, 
predictability of the activity outcome (achieving the expected 
results), and the costs for regulation development, enforcement, and 
compliance. These will include costs to the public, government, and 
regulated entities, using the best available data or parametric 
analysis methods, in the cost-benefit analysis and the decisionmaking 
process.
In the current regulatory actions involving community revitalization, 
the cost of the regulation to the Government is basically the cost of 
developing and managing the procedures to dispose of excess real and 
personal property in the event of a base closure. In return, the 
Government will receive reimbursement in the event of a direct sale or 
profit sharing in certain conveyance situations. Cost-effectiveness is 
being achieved.
Cost-Benefit
Conducting cost-benefit analyses on regulation alternatives is a 
priority in the Department of Defense so as to ensure that the 
potential benefits to society outweigh the costs. Evaluations of these 
alternatives are done quantitatively or qualitatively or both, 
depending on the nature of the problem being solved and the type of 
information and data available on the subject. DoD is committed to 
considering the most important alternative approaches to the problem 
being solved and providing the reasoning for selecting the proposed 
regulatory change over the other alternatives.
Information-Based Decisions
Lack of information in the rulemaking process has been a serious 
problem, and it is a priority regulatory issue with the Department of 
Defense. The new thrust of Executive Order 12866, with open 
communications among other Federal agencies; State, local, and tribal 
governments; public interest groups; and the public at large, is a 
great step towards solving this problem.
In addition, the pressures of time also require agencies to make 
decisions without as much information as would be ideal. To solve this 
problem, in part, a priority of the Defense Department is to use the 
latest information technology to provide access to the latest 
technical, scientific, and demographic information that is available on 
the ``information highway'' in a timely manner, through world-wide 
communications. Furthermore, the Department intends to use more 
automation in the Notice and Comment Rulemaking process, which should 
also reduce time pressures in the rulemaking process.
Performance-Based Regulations
Where appropriate, DoD plans to develop performance-based standards 
that will allow the regulated parties to achieve the regulatory 
objective in the most cost-effective manner.
Outreach Initiatives
DoD is taking steps to seek the views of appropriate State, local, and 
tribal officials and the public in implementing measures to enhance 
public awareness and participation both in developing and implementing 
regulatory programs. Last year, in its most recent significant 
regulation concerning revitalization of the communities, the Department 
received hundreds of comments from the public and held a public hearing 
involving focus groups. This reaching out to organizations and 
individuals who are affected by or involved in the particular 
regulatory action was a significant regulatory priority of the 
Department and resulted in a much better regulation.
Coordination
DoD has embraced the coordination process between and among other 
Federal agencies in the development of new and revised regulations. For 
the first time ever, DoD has received regulatory plans from key 
regulatory agencies and has established a systematic approach to 
providing the plans to the appropriate policy officials within the 
Department. Feedback from the DoD Components indicates that the 
communication among the Federal agencies is a major step toward 
improving regulations and the regulatory process and improving overall 
Government operations as well.
Minimize Burden
In the regulatory process, there are more complaints concerning burden 
than anything else. In DoD, much of the burden is in the acquisition 
process. Over the years, acquisition regulations have grown and become 
burdensome principally because of legislative action. But, in 
coordination with Congress, the Office of Federal Procurement Policy, 
and the public, DoD is initiating significant reforms in acquisition so 
as to effect major reductions in the regulatory burden on personnel in 
government and the public sectors. To effect these changes, DoD has 
established the position of Deputy Under Secretary of Defense for 
Acquisition Reform.
In addition, DoD is presently reviewing its information collections 
with a view towards cutting the reporting burden on the public in half. 
This is a direct result of the reduction efforts initiated by the 
President and strongly supported in DoD.
Simple Design
Ensuring that regulations are simple and easy to understand is a high 
regulatory priority in the Department of Defense. All too often the 
regulations are complicated, difficult to understand, and subject to 
misinterpretation, all of which can result in the costly process of 
litigation. The objective in the development of regulations is to write 
them in clear, concise language that is simple and easy to understand.
In summary, the rulemaking process in DoD should produce a rule that 
addresses an identifiable problem, implements the law, implements the 
President's policies, including Executive Order 12866, is in the public 
interest, is consistent with other rules and policies, is based on the 
best information available, is rationally justified, is cost-effective, 
can actually be implemented, is acceptable and enforceable, is easily 
understood, and stays in effect only as long as is necessary. Moreover, 
the proposed rule or the elimination of a rule should simply make 
sense.
Specific Priorities
For this Regulatory Plan, there are four specific DoD priorities, all 
of which reflect the regulatory principles established in Executive 
Order 12866. There are no significant regulatory actions planned, but 
in those areas where rulemaking or participation in the regulatory 
process is required, DoD has studied and developed policy and 
regulation that incorporates not only the provisions of the President's 
priorities and objectives under Executive Order 12866, but also those 
of the National Performance Review, dated September 1993.
The DoD has focused its regulatory resources on the most serious 
environmental, health, and safety risks. Perhaps most significant is 
that each of the four 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 base closures, wetlands, acquisition, and health 
care delivery.
Base Realignment and Closure (BRAC) Activities
Revitalizing Base Closure Communities and Community Assistance
On July 2, 1993, President Clinton announced his five-part plan for the 
economic revitalization of communities affected by base closures. The 
plan, ``A Program to Revitalize Base Closure Communities,'' is a high 
administration priority that improves the policy of Federal property 
disposal at closing bases. Provisions of the plan include:
 Jobs-centered property disposal that puts local economic 
            redevelopment first;
 Fast-track environmental cleanup that removes needless delays 
            while protecting human health and the environment;
 Transition coordinators at major bases slated for closure;
 Easy access to transition and redevelopment help for workers 
            and communities; and
 Larger and faster economic development planning grants to base 
            closure communities.
Following the President's announcement, DoD worked with representatives 
of the National Economic Council and the Congress to develop 
legislation that would enable DoD to implement the plan. In November 
1993, Congress supported the President's plan by enacting the Base 
Closure Community Assistance Act (subtitle A of title XXIX of the 
National Defense Authorization Act for Fiscal Year 1994, Public Law 
103-160), referred to here as ``title XXIX.'' This legislation 
substantially amended the base closure laws and provided the Department 
of Defense with the tools it needed to carry out the President's plan.
On April 6, 1994, the Department of Defense issued an interim final 
rule (59 FR 16123). The rule promulgated guidance required by section 
2903 of title XXIX and provided interpretive guidance concerning other 
changes to the base realignment and closure process. Subjects in the 
regulation included real property screening to aid disposal planning, 
property conveyances at or below fair market value (referred to as 
``economic development conveyances''), interim leasing, personal 
property disposal, and minimum maintenance levels necessary to support 
civilian reuse. The rule was available for public comment until August 
1994, during which time the Department held four outreach seminars (in 
Washington, DC, Chicago, Dallas, and San Francisco) and a public 
hearing (in Washington, DC) to explain the interim final rule and 
foster public comments.
In response to public comments, the Assistant Secretary of Defense for 
Economic Security convened a working group made up of representatives 
from the Military Departments and the Office of the Secretary of 
Defense. The working group was asked to address the public's concerns 
and develop needed revisions for the final rule, and to identify and 
foster DoD-wide approaches to base reuse implementation. As a result of 
the working group's recommendations, an amendment to the April 1994 
interim final rule was issued by the Department of Defense on October 
26, 1994, (59 FR 53735). That amendment addressed the requirements for 
Economic Development Conveyances (EDCs), eliminated certain 
requirements, including a ``market test'' to determine marketability of 
property, and provided more detailed instructions on EDC application 
and review criteria.
On July 20, 1995, (60 FR 37337), the Department of Defense issued a 
final rule which covered all of the subject areas in the interim final 
rule.
Throughout the development of the interim final rule, amendment, and 
final rule, DoD worked closely with other interested parties to 
identify problems requiring solutions and to identify performance-based 
outcomes for each base reuse initiative requiring regulation. DoD 
worked closely with other Federal agencies and State and local 
authorities, as well as the Congress. For example, in developing 
procedures for the screening and disposal of withdrawn public domain 
lands, the Department worked closely with representatives from the 
Bureau of Land Management (BLM) to create a process to quickly identify 
those parcels which will be disposed of in accordance with the base 
closure law. This joint process will help determine, in a rapid manner, 
what property may become available for civilian use.
This new regulation calls for increased participation by the public 
throughout the process of disposing of base closure property. For 
example, decisions on the disposal of personal property will be made in 
consultation with the local redevelopment authority (LRA) and every 
effort will be made to provide personal property to the community to 
support its ``locally-developed'' reuse plan. In addition, Federal 
agencies that desire to acquire property at a closing installation are 
urged to consult with the LRA to have their needs considered as part of 
a comprehensive local planning process. Most importantly, a new 
emphasis has been placed on disposing of property in accordance with 
the LRA's reuse plan.
DoD, in developing the regulation, is committed to promoting economic 
recovery and rapid job creation in the communities adversely affected 
by base closures, while still ensuring that Federal resources are 
available for other important public uses. To achieve this, the 
regulation calls for the balancing of needs--those of the Federal 
Government and those of base closure communities. For example, DoD 
specified timetables and requirements that Federal agencies must follow 
to claim base closure property under the priority accorded to them by 
the Federal Property and Administrative Services Act of 1949. If these 
strict requirements are not met, the local community's economic 
development needs will be considered when determining whether or not to 
award property to another Federal agency. More importantly, the 
regulations were designed to improve upon the base closure property 
reuse process by simplifying the procedures and accelerating property 
transfers and leases.
In summary, this regulatory initiative, developed after extensive 
consultation with other Federal agencies and the public, is aimed at 
assisting base closure communities by providing a mechanism to rapidly 
redevelop surplus Federal property.
Community Redevelopment and Homeless Assistance (Interim Rule published 
on August 8, 1995, 60 FR 40277)
In light of the Defense Base Closure and Realignment Commission's 1995 
report, the timely issuance of this interim rule was critical. Since 
this initiative fundamentally changes and improves the way the needs of 
the homeless are addressed at base closure sites, it was imperative 
that regulations be issued immediately so communities could be fully 
informed of the new process prior to final approval of the base closure 
list. DoD is closing and realigning bases in the United States as a 
result of decisions made through base closure processes in 1988, 1991, 
1993, and 1995. These 4 rounds identified 98 major bases for closure. 
Integral to this action, and to the President's Five-Part Plan to 
revitalize base closure communities, is the need to establish policy 
that ensures expeditious and viable disposition of associated real and 
personal property, and that speeds the economic recovery of communities 
where bases identified for closure are located. This interim rule 
promulgates policy and procedures for implementing the Base Closure 
Community Redevelopment and Homeless Assistance Act of 1994 (the 
Redevelopment Act).
Title V of the Stewart B. McKinney Homeless Assistance Act of 1987 
granted first priority on use of all surplus federally owned real and 
personal property, including former military installations, to the 
homeless. The title V provisions have worked reasonably well for small 
parcels and individual buildings. However, with respect to base closure 
property, which is large and diverse, the McKinney Act title V 
provisions did not work well and caused disruption and conflicts at the 
local level. Consequently, Congress passed the Redevelopment Act, which 
exempts base closure property from the McKinney Act and creates a new 
community-based process. Under this new improved process, homeless 
assistance providers will work directly with Local Redevelopment 
Authorities on the reuse of former military installations. Minimally, 
the cost of this regulatory action will result from the establishment 
and management of procedures which provide for addressing the needs of 
the homeless in communities affected by the closure of a military base. 
Benefits, on the other hand, will be substantial and will accrue to the 
Federal Government and the local communities. The Government will 
accrue savings from the disposal of unneeded infrastructure and the 
local communities will receive redevelopment benefits coupled with 
buildings and services to assist the homeless. In addition, the new 
process shifts control and responsibility for homeless assistance from 
Washington and the Federal Government to local communities. It is a 
win-win situation.
Preserve Quality and Quantity of Wetlands
During fiscal year 1996, the Army Corps of Engineers is not proposing 
any significant regulations as defined by Executive Order 12866. The 
Office of the Assistant Secretary of the Army for Civil Works 
(OASA(CW)) and the Corps will propose and complete several regulations 
initiated as part of the President's August 24, 1993, Wetlands 
Protection Plan and the President's 1995 Regulatory Reinvention 
Initiative. The wetlands protection plan provides for a fair, flexible, 
and effective approach to protecting America's wetlands through both 
regulatory and nonregulatory mechanisms. The regulatory reinvention 
initiative reinforced those provisions and included additional 
regulatory reform and streamlining provisions.
During 1995 and 1996 the Corps will propose and finalize four 
regulations pursuant to its authorities under Section 404 of the Clean 
Water Act and Section 10 of the Rivers and Harbors Act of 1899. The 
first regulation establishes the wetland delineator certification 
program. This regulation was proposed on March 14, 1995, and will be 
finalized by end of 1996. This program provides for training and 
certification of individuals, as provided for by Section 307(e) of the 
Water Resources Development Act of 1990, to submit for approval, 
wetland delineations in accordance with the current Federal wetland 
delineation manual. Individuals can be certified as meeting certain 
standards, resulting in an expedited decision by the Corps on their 
submitted wetland delineation. The goal of the certification program is 
to improve the quality of consultant-prepared wetland delineations that 
are submitted to the Corps so that they can be approved more quickly by 
the Corps.
The second regulation will establish an administrative appeal process 
whereby permit applicants and landowners can appeal permit denial 
decisions and jurisdictional determinations. This regulation was 
proposed on July 19, 1995, and will be finalized in 1996. The 
administrative appeal process will increase fairness to applicants and 
landowners in the permitting process by establishing a recourse to 
Corps permit denial decisions and jurisdictional determinations short 
of going to court. The process will also provide for third-party 
involvement if the Corps reconsiders a previous permit denial. The 
third regulation will increase fairness and efficiency in the wetlands 
permitting process by establishing deadlines for wetlands permitting 
decisions under the Clean Water Act. Normally, decisions will be made 
90 days from the issuance of a public notice except in certain 
situations that are beyond the control of the Corps or that involve 
delays required by other laws. The final regulation will be a 
consolidation of the Corps rulemaking and guidance, including the above 
regulations, that have been issued since the last consolidated 
regulations dated November 13, 1986. The regulations would also be 
reorganized to make them clearer and easier to use.
Reform Defense Acquisition
In ``Acquisition Reform: A Mandate for Change,'' the Secretary of 
Defense highlighted the need for acquisition reform as follows:

The Department of Defense Bottom-up Review provides the vision and the 
blueprint for meeting the security challenges of the post-Cold War world, 
responding to threats anywhere in the world where U.S. interests are at 
risk. In today's environment, the current process will not always be able 
to meet the Department's need. DoD will not be able to carry out this 
blueprint without dramatic changes in its acquisition processes; that is, 
from determining what the Department needs to logistics support and 
reutilization requirements.

To meet these new security challenges, the United States must be able 
to rely heavily on commercial companies for defense needs. It cannot, 
as it has in the past, rely exclusively on companies that are 
predominantly defense suppliers. As the Secretary has stated:

...the Department of Defense cannot afford the extra costs associated with 
keeping its industrial base isolated from the National base. The country 
needs the benefit that it would otherwise lose as a result of the defense 
industrial base being kept out of this National base.

Assessing risk, performing cost-benefit analysis, and minimizing burden 
are cornerstones in the establishment of a cost-effective acquisition 
process that is consistent with Executive Order 12866.
To make this drastic change, the acquisition process must be 
fundamentally reengineered, to ensure that the commercial sector is 
fully utilized to support Government needs, and that all possible 
streamlining measures are adopted. The Federal Acquisition Streamlining 
Act of 1994, enacted into law on October 13, 1994, was a major step 
towards achieving this goal. Specifically, the legislation provided 
relief in the following major areas: (a) Comprehensive authority to 
facilitate commercial item acquisition, and (b) simplification and 
streamlining of most contract actions.
This legislation is the center of regulatory activity in the Department 
of Defense. DoD is leading the Governmentwide effort to implement the 
legislation in the Federal Acquisition Regulation (FAR). It is also 
making necessary changes to the Defense Federal Acquisition Regulation 
Supplement (DFARS). In addition to actions related to the pending 
legislation, there is a substantial FAR rewrite effort under 
consideration as a result of a National Performance Review (NPR) and 
Core Roles and Mission Commission recommendations. DoD has also 
chartered 11 process action teams (PATs) to review discrete parts of 
the acquisition system. Based upon recommendations from these PATs, DoD 
is in the process of changing its internal acquisition regulations and 
policies. As the result of the recommendations of our Automated 
Acquisition Information System PAT, it is in the process of developing 
a mechanism which would ensure access to individuals within the 
Department to all of the regulatory material, as well as other 
information in our possession, concerning the acquisition system. The 
Department is committed to acquisition reform and will continue making 
significant improvements in this area, consistent with the NPR and 
Executive Order 12866.
Improve Health Care Delivery in the Defense Department
DoD operates an extensive system of military medical treatment 
facilities, in support of two missions: wartime readiness and peacetime 
benefits. The readiness mission maintains the peacetime health of 
active duty personnel and makes preparations to attend the sick and 
wounded in war; the benefits mission provides a health benefit as a 
condition of service to DoD's eligible beneficiaries, including 
dependents of active duty personnel and retired military personnel and 
their dependents and survivors.
The principal health-related regulatory publications of the Department 
involve CHAMPUS, the Civilian Health and Medical Program of the 
Uniformed Services (32 CFR 199). Through CHAMPUS, DoD shares in the 
cost of civilian care obtained by eligible beneficiaries when services 
are unavailable in military medical treatment facilities. CHAMPUS 
regulations address comprehensively issues such as eligibility, 
benefits, authorized providers, claims payment, appeals procedures, and 
the like. Changes to the CHAMPUS regulations are coordinated by DoD 
with the Departments of Transportation (U.S. Coast Guard) and Health 
and Human Services (Public Health Service), which also have 
beneficiaries eligible for CHAMPUS.
Amendments to the CHAMPUS regulations generally focus on program 
changes arising from revisions to the program's statutory base or from 
DoD initiatives to improve the program. Over the next few years, 
changes in management of high-cost care and revisions to reimbursement 
approaches for providers will be among DoD's regulatory priorities.
A major health care initiative of DoD is the TRICARE Program, which is 
intended to improve the management and integration of health care 
delivery in military medical treatment facilities and CHAMPUS, and to 
increase access to health services, control health care costs, and 
strengthen quality assurance activities. A major feature of TRICARE 
will be local health care delivery networks based on arrangements 
between military and civilian providers and organizations. 
Beneficiaries will be able to enroll in an HMO-like option to receive 
all their care from this integrated military-civilian network or obtain 
care on a case-by-case basis from the network at preferred cost-sharing 
rates.
The regulatory vehicle for implementation of TRICARE will be an 
amendment to the CHAMPUS regulation that was published on October 5, 
1995. An extensive and ongoing effort to inform the public about 
TRICARE will enhance the Executive Order 12866 objective of providing 
full information to the public to encourage substantial and meaningful 
participation in the regulatory process.
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