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Federal Register / Vol. 86, No. 158 / Thursday, August 19, 2021 / Rules and Regulations
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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 preapproval 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 preapproval of unofficial foreign travel to DoD to allow for the modifications to DoDs IT system to be completed. If a government contracting activitys 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 doesnt 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
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from the APAs notice-and-comment requirement, because it satisfies the good-cause exception in 553b3B.
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 preapproval 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 DoDs 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. 8042.
Public Law 96354, 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
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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 96511, 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 1044, 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
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. 108458; Title 42 U.S.C.
2011 et seq.; Title 50 U.S.C. Chapter 44; Title 50 U.S.C. 3501 et seq.

2. In 117.1, paragraph b3 is revised to read as follows:

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