Rule2021-17688
National Industrial Security Program Operating Manual (NISPOM); Amendment
Primary source
Metadata and text below are from the Federal Register, a public-domain U.S. government work. Always verify the official published version before relying on it for any legal matter.
Published
August 19, 2021
Effective
August 19, 2021
Issuing agencies
Defense Department
Abstract
DoD is amending its NISPOM regulation to extend the implementation date for those contractors under DoD security cognizance to report and obtain pre-approval of unofficial foreign travel to the Department of Defense.
Full Text
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<title>Federal Register, Volume 86 Issue 158 (Thursday, August 19, 2021)</title>
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[Federal Register Volume 86, Number 158 (Thursday, August 19, 2021)]
[Rules and Regulations]
[Pages 46597-46599]
From the Federal Register Online via the Government Publishing Office [<a href="http://www.gpo.gov">www.gpo.gov</a>]
[FR Doc No: 2021-17688]
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DEPARTMENT OF DEFENSE
Office of the Secretary
32 CFR Part 117
[Docket ID: DoD-2020-OS-0045]
RIN 0790-AL41
National Industrial Security Program Operating Manual (NISPOM);
Amendment
AGENCY: Office of the Under Secretary of Defense for Intelligence &
Security, Department of Defense (DoD).
ACTION: Final rule; technical amendment.
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SUMMARY: DoD is amending its NISPOM regulation to extend the
implementation date for those contractors under DoD security cognizance
to report and obtain pre-approval of unofficial foreign travel to the
Department of Defense.
DATES: This rule is effective August 19, 2021.
FOR FURTHER INFORMATION CONTACT: Valerie Heil, 703-692-3754.
SUPPLEMENTARY INFORMATION: This final rule amends 32 CFR part 117,
``National Industrial Security Program Operating Manual (NISPOM)''
final rule that published in the Federal Register on December 21, 2020
(85 FR 83300). The rule includes reporting requirements for contractor
personnel who have been granted eligibility for access to classified
information through the National Industrial Security Program to follow
[[Page 46598]]
Security Executive Agent Directive (SEAD) 3, ``Reporting Requirements
for Personnel with Access to Classified Information or Who Hold a
Sensitive Position.'' Reporting requirements in the rule include
provisions for covered individuals to report and obtain pre-approval of
unofficial foreign travel. DoD received comments from regulated parties
concerning how burdensome it would be for contractors under DoD
security cognizance to submit individual foreign travel reports.
Regulated parties recommended DoD modify its IT system so multiple or
batched foreign travel reports can be submitted in a single submission.
DoD agrees with this recommendation and intends to modify its IT
system. However, DoD cannot complete modifications to its IT system
before the original implementation date of August 24, 2021. This
amendment will extend until August 24, 2022, the implementation date
for those contractors under DoD security cognizance to report and
obtain pre-approval of unofficial foreign travel to DoD to allow for
the modifications to DoD's IT system to be completed. If a government
contracting activity's (GCA) contract separately requires reporting or
pre-approval of unofficial foreign travel (i.e., contains a provision
requiring such reports other than by incorporating the NISPOM), the
contractor should consult with the GCA on when and where to submit such
reports and the procedures for obtaining pre-approval.
Exception to Notice and Comment
This regulation can be effective immediately, notwithstanding the
general requirement in the Administrative Procedure Act (APA) for
advance notice and comment. Principally, this rule follows from a final
rule with comment. This final rule is a logical outgrowth of the notice
and comment incorporated in the prior final rule, because it is
directly responsive to public comments made in response to the final
rule. Several commenters specifically requested a delay in the August
24, 2021 implementation date. For example, one commenter stated that
for contractors under DoD security cognizance, reporting foreign travel
and foreign contacts will be impractical for companies of size without
a mass or bulk upload capability that doesn't exist in the system as
designed today. Further, the commenter stated this capability should be
pursued and aligns with one of the stated goals of SEAD 3, which
encourages ``automation and centralization.'' Even absent the prior
notice and comment incorporated in the final rule, this rule would be
exempt from the APA's notice-and-comment requirement, because it
satisfies the good-cause exception in 553(b)(3)(B). Specifically,
notice-and-comment rulemaking is ``unnecessary,'' id., because as noted
in the preamble, DoD already took comments on its NISPOM regulation and
the regulated parties affected by the regulation requested that the
Department change its IT system before they must report and obtain pre-
approval of unofficial foreign travel to DoD. Indeed, DoD is amending
the NISPOM regulation for the purpose of extending the implementation
date at the request of the regulated parties affected by the rule who
provided comments on the NISPOM regulation during a previous notice and
comment period provided for the final rule. The need for this change to
DoD's IT system was discovered in the comments received on the NISPOM
regulation. While DoD desired to modify its IT system before the
original implementation date to meet the requested change by the
regulated parties, the Department discovered through the comment
process that such modification is not feasible. DoD has therefore
concluded that there is good cause to dispense with the advanced
notice-and-comment rulemaking requirements in 5 U.S.C. 553.
Regulatory Analysis
Executive Order 12866, ``Regulatory Planning and Review'' and Executive
Order 13563, ``Improving Regulation and Regulatory Review''
Executive Orders 12866 and 13563 direct agencies to assess all
costs and benefits of available regulatory alternatives and, if
regulation is necessary, to select regulatory approaches that maximize
net benefits (including potential economic, environmental, public
health and safety effects, distribute impacts, and equity). Executive
Order 13563 emphasizes the importance of quantifying both costs and
benefits, of reducing costs, of harmonizing rules, and of promoting
flexibility. It has been determined that this rule is a significant
regulatory action. Accordingly, the rule has been reviewed by the
Office of Management and Budget (OMB) under the requirements of these
E.O.s.
Congressional Review Act
This rule is not a ``major rule'' as defined by 5 U.S.C. 804(2).
Public Law 96-354, ``Regulatory Flexibility Act'' (5 U.S.C. Chapter 6)
The Under Secretary of Defense for Intelligence and Security,
pursuant to a delegation of authority from the Secretary of Defense,
certifies that this final rule would not, if promulgated, have a
significant economic impact on a substantial number of small business
entities in accordance with the Regulatory Flexibility Act (5 U.S.C.
601) requirements since a contractor cleared legal entity may, in
entering into contracts requiring access to classified information,
negotiate for security costs determined to be properly chargeable by a
Government Contracting Activity.
Public Law 96-511, ``Paperwork Reduction Act'' (44 U.S.C. Chapter 35)
It has been determined that this rule does not impose any new
information collection or record keeping requirements under the
Paperwork Reduction Act of 1995 (44 U.S.C. 3501 et seq.).
Section 202, Public Law 104-4, ``Unfunded Mandates Reform Act''
Section 202 of the Unfunded Mandates Reform Act of 1995 (UMRA) (2
U.S.C. 1532) requires agencies to assess anticipated costs and benefits
before issuing any rule whose mandates require spending in any 1 year
of $100 million in 1995 dollars, updated annually for inflation. This
final rule will not mandate any requirements for State, local, or
tribal governments, nor will it affect private sector costs.
Executive Order 13132, ``Federalism''
E.O. 13132 establishes certain requirements that an agency must
meet when it promulgates a final rule (and subsequent final rule) that
imposes substantial direct requirement costs on State and local
governments, preempts State law, or otherwise has Federalism
implications. This final rule will not have a substantial effect on
State and local governments.
List of Subjects in 32 CFR Part 117
Classified information; Government contracts; USG contracts,
National Industrial Program (NISP); Prime contractor, Subcontractor.
Accordingly, 32 CFR part 117 is amended as follows:
PART 117-- NATIONAL INDUSTRIAL SECURITY PROGRAM OPERATING MANUAL
(NISPOM)
0
1. The authority citation for 32 CFR part 310 continues to read as
follows:
Authority: 32 CFR part 2004; E.O. 10865; E.O. 12333; E.O.
12829; E.O. 12866; E.O. 12968; E.O. 13526; E.O. 13563; E.O. 13587;
E.O. 13691; Pub. L. 108-458; Title 42 U.S.C. 2011 et seq.; Title 50
U.S.C. Chapter 44; Title 50 U.S.C. 3501 et seq.
0
2. In Sec. 117.1, paragraph (b)(3) is revised to read as follows:
[[Page 46599]]
Sec. 117.1 Purpose.
* * * * *
(b) * * *
(3) Prescribes that contractors will implement the provisions of
this part no later than 6 months from February 24, 2021, with the
exception of requirements for reporting foreign travel to the
Department of Defense prescribed in SEAD 3 and implemented through this
rule. Contractors under the security cognizance of the Department of
Defense will begin reporting foreign travel to the Department of
Defense no later than 18 months from February 24, 2021.
Dated: August 12, 2021.
Patricia L. Toppings,
OSD Federal Register Liaison Officer, Department of Defense.
[FR Doc. 2021-17688 Filed 8-18-21; 8:45 am]
BILLING CODE 5001-06-P
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</html>Indexed from Federal Register on August 19, 2021.
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