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

Federal Register / Vol. 61, No. 231 / Friday, November 29, 1996 / The
                            Regulatory Plan

[[Page 62031]]

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 1,450,000 military personnel and 800,000 
civilians assigned as of June 30, 1996, 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 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 impacted by the regulations 
issued by regulatory agencies such as the Departments of Energy, Health 
and Human Services, Housing and Urban Development, Labor, 
Transportation, and the Environmental Protection Agency. In order to 
develop the best possible regulations that embody the principles and 
objectives embedded in E.O. 12866, there must be coordination of 
proposed regulations among the regulating agencies and the affected 
Defense components. Coordinating the proposed regulations in advance 
throughout an organization as large as DoD is a straightforward, yet 
formidable undertaking.
DoD is not a regulatory agency, but occasionally issues regulations 
that have an impact on the public. These regulations, while small in 
number compared to those of the regulating agencies, can be significant 
as defined in E.O. 12866. In addition, some of DoD's regulations may 
impact the regulatory agencies. An example of this is the rule 
implementing the Redevelopment Act requiring coordination with the 
Department of Housing and Urban Development. DoD, as an integral part 
of its program, not only receives coordinating actions from the 
regulating agencies but coordinates with the agencies that are impacted 
by its regulations as well.
The regulatory program within DoD fully incorporates the provisions of 
the President's priorities and objectives under E.O. 12866. 
Promulgating and implementing the regulatory program throughout DoD 
presents a unique challenge to the management of our regulatory 
efforts.
Coordination
Interagency
DoD annually receives 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 are 
reviewed, and comments are 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, since they are able to see 
and comment on regulations from the other agencies before they are 
required to comply with them. The coordination process in DoD continues 
to work as outlined in E.O. 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. DoD 
continues to refine its internal procedures, and this ongoing effort to 
improve coordination and communication practices is well received and 
supported within the Department.
Overall Priorities
The Department of Defense 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 at a time when there is significant ongoing 
downsizing in the Department, and it must 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 E.O. 
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 plans to issue one significant regulation this year, and the 
probability of developing conflicting regulations is low. Conversely, 
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 
exist in the DoD and other 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
In consonance with the goal of the National Performance Review and the 
stated goal of the Secretary of Defense in ``Acquisition Reform: A 
Mandate for Change,'' assessing and managing risk remains a priority in 
the DoD regulatory program.
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. When a regulation is 
required, DoD considers 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

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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 E.O. 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 with less information than would be ideal. To solve this 
problem, in part, a priority of the Department of Defense is to use the 
latest information technology to provide access to the most current 
technical, scientific, and demographic information in a timely manner 
through the world-wide communications capabilities which are available 
on the ``information highway.'' Furthermore, the Department endeavors 
to increase the use of automation in the notice and comment rulemaking 
process in an effort to reduce time pressures in the rulemaking 
process. For example, all BRAC-related regulatory publications in the 
Federal Register include an e-mail address, allowing the public to 
submit their comments electronically. In addition, the public has now 
begun using this e-mail address to send in questions related to BRAC in 
general, which enhances communications at the grass roots level.
Performance-Based Regulations
Where appropriate, DoD is incorporating performance-based standards 
that allow the regulated parties to achieve the regulatory objective in 
the most cost-effective manner.
Outreach Initiatives
DoD endeavors to obtain 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 efforts. Historically, this has included such activities as 
receiving comments from the public, holding hearings, and conducting 
focus groups. This reaching out to organizations and individuals who 
are affected by or involved in the particular regulatory action remains 
a significant regulatory priority of the Department and, we feel, 
results in much better regulations.
Coordination
DoD has enthusiastically embraced the coordination process between and 
among other Federal agencies in the development of new and revised 
regulations. Annually, DoD receives 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 this 
communication among the Federal agencies is a major step forward in 
improving regulations and the regulatory process, as well as in 
improving Government operations.
Minimizing Burden
In the regulatory process, there are more complaints concerning burden 
than anything else. In DoD, much of the burden is in the acquisition 
area. 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. One such significant reduction in 
the burden imposed on the public was achieved in the review of DoD's 
Acquisition Management Systems and Data Requirements Control List. This 
list specifies data requirements used in Government contracts to 
support the design, test, manufacture, training, operation, and 
maintenance of procured items. This information is required in 
approximately 15 million DoD contracts annually for supplies, services, 
hardware, and software. As a result of ongoing reviews to reduce and 
consolidate the amount of information collected from the public, DoD 
achieved a 33 million burden hour reduction due to program changes. An 
additional 17 million burden hour adjustment was made due to the 
reduction in the number of contracts, which resulted in an overall 
reduction of 50 million burden hours imposed on the public.
Additionally, last year, DoD reviewed 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. Specifically, an April 21, 1995, White 
House memorandum requested a 50 percent reduction in the frequency of 
regularly scheduled public reports. In response, DoD identified for 
review 19 eligible reporting requirements which it imposes on the 
public. In May 1996, DoD completed this review and successfully reduced 
the overall reporting burden by eliminating six reports entirely and 
reducing the reporting frequency of the remaining 13 reports by at 
least 50 percent.
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, incorporates the 
President's policies defined in E.O. 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 five specific DoD priorities, all 
of which reflect the established regulatory principles. One of these, 
``Closed, Transferred, and Transferring Ranges Containing Military 
Munitions,'' is a significant regulatory action as defined by E.O. 
12866. In those areas where rulemaking or participation in the

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regulatory process is required, DoD has studied and developed policy 
and regulation which incorporate not only the provisions of the 
President's priorities and objectives under the Executive order but 
also those of the National Performance Review, dated September 1993.
DoD has focused its regulatory resources on the most serious 
environmental, health, and safety risks. Perhaps most significant is 
that each of the five 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, health 
care delivery, and munitions ranges.
Base Realignment and Closure (BRAC) Activities
Revitalizing Base Closure Communities and Community Assistance
On July 2, 1993, President Clinton announced a plan to provide for more 
rapid redevelopment and job creation in communities affected by base 
realignment and closure (BRAC) decisions. This Presidential initiative 
marked a fundamental change in the policy of Federal property disposal 
at BRAC sites by giving top priority to helping affected communities 
realize early reuse of base assets to spur economic recovery.
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 (FY) 1994, P.L. 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.
After publishing an interim final rule, an amendment to the interim 
final rule, and reviewing numerous public comments received in response 
to those publications and during outreach visits and public hearings, 
the Department published a final rule (32 CFR parts 91 and 92) 
implementing the provisions of title XXIX and providing interpretive 
guidance concerning other changes to the BRAC process. The rule covered 
topics including 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.
Although great strides had been made to improve the process, the 
Department recognized that further refinements were still needed. 
Accordingly, new statutory authorities were requested, which Congress 
incorporated into the National Defense Authorization Act for FY 1996 
(P.L. 104-106). These new authorities include the following provisions 
that will be implemented by the Department in amendments to three rules 
planned for publication later this year:
 An amendment to the Department's leasing authority which 
            authorizes, in certain circumstances, longer term interim 
            leases (greater than the old 5-year limitation) and limits 
            the scope of any environmental analysis required to support 
            an interim lease. This new authority will also allow the 
            Department to permit some building modification, 
            demolition, and new construction.
 A new real property transfer authority which allows base 
            closure property that is still needed by DoD or another 
            Federal agency to be transferred to a local redevelopment 
            authority (LRA), provided the LRA leases back the property 
            to DoD or the Federal agency at no cost. This authority is 
            designed for those situations where small parcels or 
            individual buildings that are still needed by a Federal 
            agency are surrounded by property that will be conveyed to 
            the LRA. Use of a ``lease back'' will allow the LRA to have 
            certainty over the future use of the property (they will 
            own and can use it when the Federal occupant vacates) while 
            still ensuring that continuing Federal needs are met.
 Another new real property transfer authority which authorizes 
            the Secretary of Defense to enter into agreements to 
            transfer property or facilities at closing bases to a 
            person who agrees to provide, in exchange for the property, 
            housing units located at another installation where there 
            is a shortage of suitable housing. This authority can help 
            create a win/win situation by addressing, through an 
            ``exchange'' of assets, the economic redevelopment needs of 
            the community and the military's family housing needs.
Interagency Coordination
As the rules implementing these provisions are being developed, DoD has 
been working closely with other Federal agencies to ensure our 
procedures work in concert with existing Federal programs. For example, 
in developing the rule implementing the ``lease back'' provision, we 
have been working with the General Services Administration on how 
existing Federal property management regulations will apply to leases 
under this authority. In addition, DoD worked with staff of the Council 
on Environmental Quality on the amendments to the exisiting BRAC 
leasing rule that are necessary to implement the new interim leasing 
authority.
Internal Coordination
Coordination is being sought from all facets of the Department during 
the development of the amendment to the BRAC rules. Coordinating 
components include the Departments of the Army, Navy, and Air Force; 
the Office of the General Counsel; the Office of the Deputy Under 
Secretary of Defense (Environmental Security); the Defense Finance and 
Accounting Service; and the Defense Logistics Agency.
Simple Design
All of the rules under development are being written in clear, concise 
language with the goal of making them simple and easy to understand. In 
addition, all of the amendments being made will also be reflected in 
DoD 4165.66-M ``DoD Base Reuse Implementation Manual.'' The manual, 
developed after the first base closure rule was published last year, 
provides greater detail about the issues addressed in the rule. It is 
written in an easy-to-read question-and-answer format to help service 
implementers and members of the public find answers to specific 
questions about the base closure and reuse process. To provide wide 
access to the document, the manual is now available on the World Wide 
Web under DefenseLINK, Secretary of Defense, Principal Deputy Under 
Secretary of Defense (Acquisition and Technology), Industrial Affairs 
and Installations.
Community Redevelopment and Homeless Assistance
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. With respect to base closure properties, the McKinney Act 
title V provisions did not work well and caused disruption and 
conflicts at the local level. Consequently, Congress passed the Base 
Closure Community Redevelopment and

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Homeless Assistance Act of 1994 (the Redevelopment Act), which exempted 
base closure property from the McKinney Act and created a new 
community-based process for addressing the needs of the homeless. Under 
this new improved process, homeless assistance providers work directly 
with LRAs on the development of a reuse plan that balances the 
community's economic development needs with the needs of the homeless 
in the community.
On August 8, 1995, the Department, in conjunction with the Department 
of Housing and Urban Development (HUD), published an interim rule (32 
CFR part 92) implementing the provisions of the Redevelopment Act. That 
rule was open for public comment until October 16, 1995. In addition, 
amendments to the Redevelopment Act were passed by Congress as part of 
the National Defense Authorization Act for FY 1996. The Department is 
currently working with HUD on a final rule that takes into account both 
the public comments and the recent amendments.
Interagency Coordination
As with the development of the interim rule, the final rule is being 
written by an interagency working group comprised of staff from both 
DoD and HUD. All public comments on the interim rule are being reviewed 
by both agencies and changes to the interim rule based on the recent 
amendments are being drafted together. This effort is an excellent 
example of agencies working together to develop a coordinated strategy 
for implementing this new program.
One change to the Redevelopment Act being implemented in the final rule 
requires that agencies sponsoring public benefit transfers (PBT) under 
the Federal Property and Administrative Services Act ``pre-certify'' 
public and nonprofit entities who express an interest in obtaining 
property via a PBT during the community screening process. This section 
of the final rule will be coordinated with all applicable agencies.
Internal Coordination
The final rule will be issued after coordination with the Departments 
of the Army, Navy, and Air Force; the Office of the General Counsel; 
and the Office of the Deputy Under Secretary of Defense (Environmental 
Security).
Conflicting Regulations
The Redevelopment Act process involves both DoD and HUD. To avoid 
conflicting regulations, both agencies have been working together to 
develop a single rule that outlines the roles of both agencies.
Simple Design
The final rule is being developed in clear, concise language in an 
effort to prevent misinterpretation of the process in which HUD, DoD, 
communities, homeless providers, and other State and local entities all 
participate. In addition, HUD, with the concurrence of DoD, recently 
published a guidebook to assist communities with completing the local 
screening and outreach process and preparing their application to HUD. 
The Redevelopment Act process is also outlined in DoD's Base Reuse 
Implementation Manual.
Preserve Quality and Quantity of Wetlands
During FY 1997, the U.S. Army Corps of Engineers is not proposing any 
significant regulations as defined by E.O. 12866. The Office of the 
Assistant Secretary of the Army (Civil Works) 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 1996 and 1997, the Corps will propose and finalize three 
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 the 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 reviewed and approved 
expeditiously.
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 without 
pursuing litigation. The process will also provide for third-party 
involvement when the Corps reconsiders a previous denial. 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 will 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: ``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 
rely, as it has in the past, 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, managing rather than avoiding risk, performing cost-
benefit analysis, and minimizing burden are cornerstones in the 
establishment of a cost-effective acquisition process that is 
consistent with E.O. 12866.
To make this drastic change, the acquisition process must be

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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: (1) Comprehensive authority to 
facilitate commercial item acquisition and (2) simplifying and 
streamlining most contract actions. This legislation is the center of 
regulatory activity in the Department of Defense. DoD led the 
Governmentwide effort to implement the legislation in the Federal 
Acquisition Regulation (FAR).
We are also making necessary changes to the Defense Federal Acquisition 
Regulation Supplement (DFARS). The Department decided to approach the 
revision of the FAR on a part-by-part basis, addressing those parts 
where the most return could be obtained for the investment. As a 
result, the Department has led the effort to rewrite FAR part 15 
covering Contracting by Negotiation, the method used to award the bulk 
of our acquisition dollars. DoD has also chartered 11 process action 
teams (PATs) to review discrete parts of the acquisition system. Based 
upon recommendations from these PATs, we are in the process of changing 
our internal acquisition regulations and policies. In accordance with 
the Systems Acquisition Oversight and Review PAT, DoD rewrote the 
Department's basic systems acquisition policy documents, DoD Directive 
5000.1 and DoD Instruction 5000.2. The rewrite separated mandatory 
policy from discretionary alternative practices and emphasized the 
themes of teamwork, tailoring, empowerment, cost as an independent 
variable, and the use of commercial practices. As the result of the 
recommendations of our Automated Acquisition Information System PAT, 
DoD has developed and is fielding the Defense Acquisition Desk Book, an 
automated tool which provides access to individuals within the 
Department to all of the regulatory material, including the DoD 5000-
series documents, the FAR and the DFARS, as well as other information 
in our possession, including discretionary alternative practices, 
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 E.O. 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 part 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 such issues 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), Health and 
Human Services (Public Health Service), and Commerce (National 
Oceanographic and Atmospheric Administration), 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 is 
local health care delivery networks based on arrangements between 
military and civilian providers and organizations. Beneficiaries are 
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 is an amendment to 
the CHAMPUS regulation that was published on October 5, 1995. 
Amendments to this TRICARE regulation will be published to incorporate 
new policy changes and/or legislative directives. An extensive and 
ongoing effort to inform the public about TRICARE will enhance the E.O. 
12866 objective of providing full information to the public to 
encourage substantial and meaningful participation in the regulatory 
process.
Closed, Transferred, and Transferring Ranges Containing Military 
Munitions
The range rule identifies a process for evaluating appropriate response 
actions on closed, transferred, and transferring military ranges. 
Response actions will address safety, human health, and the 
environment. The rule contains a five-part process that is consistent 
with the Comprehensive Environmental Response, Compensation, and 
Liability Act (CERCLA) and is tailored to the special risks posed by 
military munitions and military ranges. All closed, transferred, and 
transferring military ranges will be identified. A range assessment 
will be conducted in which a site-specific accelerated response 
(various options for protective measures, including monitoring) will be 
implemented. If these measures are not sufficient, then a more detailed 
site-specific range evaluation will be conducted. Recurring reviews 
will be conducted, and an administrative close-out phase also is 
included.
This regulation is proposed under the authorities of the Defense 
Environmental Restoration Program (DERP), 10 U.S.C. 2701 et seq.; the 
DoD Explosive Safety Board (DDESB), 10 U.S.C. 172 et seq.; and section 
104 of the CERCLA, 42 U.S.C. 9601 et seq., as delegated to the DoD by 
E.O. 12580 (59 FR 2923, January 23, 1987).
Section 107 of the Federal Facility Compliance Act of 1992 amended the 
Resource Conservation and Recovery Act (RCRA) and required the 
Environmental Protection Agency (EPA) to propose regulations 
identifying when conventional and chemical military munitions become 
hazardous waste under RCRA. EPA issued its proposed rule, which 
discussed military munitions on ranges, on November 8, 1995. EPA stated 
in this proposal that military munitions remaining on closed and 
transferred ranges would be considered ``solid waste'' according to the 
RCRA statutory definition of RCRA section 1004(27). However, the EPA

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proposed rule also stated that if DoD promulgates rules pursuant to 
DoD's own statutory authorities then the DoD regulations would 
supersede or ``sunset'' the proposed RCRA regulations if: DoD's rules 
allow for public involvement in addressing closed and transferred 
(i.e., the range property is transferred from military control) 
military ranges, and DoD rules are fully protective of human health and 
the environment. (See 60 FR 56476, November 8, 1995.) DoD added a third 
category, transferring ranges, to more comprehensively address the 
issue.
The proposed rule was developed with extensive input from the public 
and other Federal agencies. A draft version of the rule was placed on 
the World Wide Web; meetings with representatives from State 
organizations, meetings with public groups, and meetings with other 
Federal agencies were critical in the formulation of the current draft 
version of the proposed rule.
_______________________________________________________________________
DOD--Office of the Secretary (OS)

                              -----------

                          PROPOSED RULE STAGE

                              -----------

15.  CLOSED, TRANSFERRED, AND TRANSFERRING RANGES CONTAINING 
MILITARY MUNITIONS
Priority:


Other Significant


Reinventing Government:


This rulemaking is part of the Reinventing Government effort. It will 
revise text in the CFR to reduce burden or duplication, or streamline 
requirements.


Legal Authority:


 10 USC 172 et seq; 10 USC 2701 et seq; 42 USC 9601 et seq; EO 12580


CFR Citation:


 32 CFR 183


Legal Deadline:


None


Abstract:


The proposed DOD rule is in response to EPA's ``sunset'' provision. The 
DOD proposal addresses the unique explosives safety considerations 
associated with military munitions (including UXO) and the need for 
environmental protection, and it does so under DERP, 10 USC 172 et 
seq., and CERCLA authorities rather than under RCRA.


Statement of Need:


The Department of Defense (DOD) proposed rule identifies a process for 
evaluating appropriate response actions on closed, transferred, and 
transferring military ranges. Response actions will address safety, 
human health, and the environment. The rule contains a five-part 
process that is consistent with the Comprehensive Environmental 
Response, Compensation, and Liability Act (CERCLA), and is tailored to 
the special risks posed by military munitions and military ranges. All 
closed, transferred, and transferring military ranges will be 
identified. A range assessment will be conducted in which a site-
specific accelerated response (which may include various options for 
protective measures, including monitoring) will be implemented. If 
these measures are not sufficient, then a more detailed site-specific 
range evaluation will be conducted. Recurring reviews will be conducted 
in accordance with a schedule specified in the rule, and an 
administrative close-out phase also is included.


Summary of the Legal Basis:


Section 107 of the Federal Facility Compliance Act of 1992 amended the 
Resource Conservation and Recovery Act (RCRA) and required the U.S. 
Environmental Protection Agency (EPA) to propose regulations 
identifying when conventional and chemical military munitions become 
hazardous waste under RCRA. EPA issued its proposed rule on November 8, 
1995, and this proposed rule discussed military munitions on ranges. 
EPA stated in this proposal that military munitions remaining on closed 
and transferred ranges would be considered ``solid waste'' according to 
the statutory definition contained in RCRA section 1004(27). However, 
the EPA proposed rule also stated that if DOD promulgates rules 
pursuant to DOD's own statutory authorities, then the DOD regulations 
would supersede, or ``sunset,'' the proposed RCRA regulations, if: the 
DOD's rules allow for public involvement in addressing closed and 
transferred (i.e., the range property is transferred from military 
control) military ranges; and the DOD rules are fully protective of 
human health and the environment. (See 60 FR 56476, November 8, 1995). 
In writing the proposed rule, DOD voluntarily added a third category, 
transferring ranges, to more comprehensively address the issue.
This regulation is proposed under the authorities of the Defense 
Environmental Restoration Program (DERP), in 10 USC 2701 et seq; the 
DOD Explosive Safety Board (DDESB), in 10 USC 172 et seq; and section 
104 of the CERCLA, in 42 USC 9601 et seq, as delegated to the DOD by EO 
12580 (59 FR 2923, January 23, 1987).


Alternatives:


A single, specific process is necessary to avoid confusion and to 
ensure that effective response activities are undertaken in a fiscally 
responsible manner. That process must recognize and consider the unique 
explosives safety hazards associated with military munitions, and 
concomitantly, with any response activity conducted on closed, 
transferred, or transferring ranges. The process must ensure that the 
public and regulators are fully informed and engaged at every stage of 
the process, including substantial and meaningful public and regulator 
participation in the response selection and implementation. The process 
must be accessible and consistent, and lead to informed decisionmaking.
DOD considered several alternatives to address military munitions on 
closed, transferred, and transferring ranges. In doing so, DOD examined 
the relative merits of conducting responses under any one of the 
statutorily based processes (DERP, CERCLA, RCRA, 10 USC 172 et seq) or 
the status quo in meeting the goal of establishing a single, logical, 
and comprehensive process that addresses explosives safety, human 
health, and environmental concerns.


Anticipated Costs and Benefits:


Implementing the proposed rule equates to national incremental costs 
totaling $709,000,000 over a period of 10 to 15 years with estimated 
annual costs of $71,000,000 per year for a 10-year period or 
$47,000,000 per year for a 15-year period. These costs are less than 
those of other alternatives. Benefits include: increased protection of 
the public; increased protection to unexploded ordnance response 
workers; consistent process; increased public involvement in responses; 
substantial role for regulatory agencies; and substantial role for 
other Federal land managers. Implementing a comprehensive approach to 
respond to these ranges while ensuring public safety, worker safety, 
and protection of human health and the environment is essential and 
would be a beneficial outcome of this rule.

[[Page 62037]]

Risks:


The degree of risk to the public is lessened by assuring a single, 
comprehensive process to respond to potential risks to safety, human 
health, and the environment at all closed, transferred, and 
transferring ranges. Public and regulatory acceptance of the rule is 
heightened through pre-proposal dialogue with stakeholders. DOD will 
continue to work with both public and governmental stakeholders and 
regulators in developing this proposed rule.


Timetable:
_______________________________________________________________________
Action                                 DFR Cite

_______________________________________________________________________
NPRM                                                           10/00/96
NPRM Comment Period End                                        12/00/96
Small Entities Affected:


Undetermined


Government Levels Affected:


Undetermined


Agency Contact:
B. Ives
Department of Defense
Department of the Army
Phone: 703 693-0548
L. Sanchez
Department of Defense
Department of the Army
Phone: 703 325-1373
RIN: 0790-AG35
BILLING CODE 5000-04-F