Department of Defense Retrospective Review Plan Report

January 9, 2012

page 1

Agency/

Subagency

RIN/

OMB 

Control 

Number

Title Of 

Initiative/

Rule/ICR

Brief Description Actual or Target 

Completion Date

Anticipated savings in 

costs &/or burdens, & 

anticipated changes in 

benefits

Progress updates 

and anticipated 

accomplishments

Notes

DoD/ 

COE

0710-

AA71

2012 

Nationwide 

Permits 

Reissuance

Section 404(e) of the Clean 

Water Act authorizes USACE 

to develop general permits, 

including nationwide permits 

(NWPs), for minor activities in 

waters of the U.S. for a period 

of five years. Accordingly, 

every five years, USACE 

undergoes a reauthorization 

process for the NWP Program 

and includes a public notice and 

provides an opportunity for 

public hearing. Comments for 

the NWP Program are 

submitted during the 

reauthorization process. 

Therefore, USACE periodically 

reviews this significant rule. 

We also solicit comments on

additional ways in which the 

NWP reauthorization process

may be improved.

January 2012 

and then every 

five years.

Nationwide permits 

(NWPs) help relieve 

regulatory burdens on 

applicants who need to 

obtain DA permits; an 

expedited form of 

authorization, as long as 

the project proponent 

meets all terms and 

conditions of the NWPs. 

The costs for obtaining 

coverage under an NWP 

are low compared to the 

standard permit. The 

administrative costs for 

USACE range from 

$1,800 to $3,275 for an 

NWP and $4,400 to

$22,240 for a standard 

permit; and the costs for 

the applicant range from 

$13,100 to $22,079 for 

an NWP and $31,400 to 

$57,180 for a standard 

permit.

On target for 

January 2012

publication.

DoD/

COE

0710-

AA60

Nationwide 

Permit 

Program

The Corps proposes to revise its 

Nationwide Permit Program 

regulations at 33 CFR part 330 

to address changes in regulatory 

procedures and policy that have 

occurred since those regulations 

were last revised in 1991. The 

End of 2012.

The effort will reduce 

burdens on permitees by 

clarifying that only one 

NWP verification is 

needed every five years. 

Also provides simplicity 

and clarity to the 

Proposed rule 

published in 

2004. Draft 

Final rule 

submitted to 

DoD Regulatory 

Policy Officer 
Department of Defense Retrospective Review Plan Report

January 9, 2012

page 2

Corps proposes to revise the 

regulation to increase the preconstruction notification review 

period to 45 days, to be 

consistent with the current 

nationwide permits. The Corps 

also proposes to amend the 

regulation to allow district 

engineers to issue verification 

letters that can have the same 

expiration date as the 

nationwide permit. 

regulated public. for approval in 

November 2011. 

DoD/

COE

Defining the 

Term 

“Waters of 

the United 

States”

The rule is expected to establish 

categories of waters and 

wetlands that are jurisdictional 

by rule; other categories of 

waters and wetlands will 

require a case-specific analysis 

and finding of Clean Water Act 

jurisdiction. By declaring 

certain categories of waters and 

wetlands to be jurisdictional by 

rule, there will be more 

certainty as to which activities 

require Department of Army 

permits. There will also be 

reduced delays for activities 

affecting those categories of 

waters and wetlands, since it 

will no longer be necessary to 

provide detailed case-specific 

documentation to determine 

Clean Water Act jurisdiction.

Ongoing effort; 

this is a joint rule 

with EPA. EPA 

is the lead 

agency for the 

effort and, as 

such, will decide 

when to submit 

to OMB.

Some anticipated costs 

will increase and some 

are anticipated to result 

in cost savings. The 

numbers of complex 

jurisdictional 

determinations should 

decrease resulting in a 

savings; however, more 

jurisdictional waters are 

anticipated which may 

result in an increase in 

permit applications and 

a cost increase. Overall, 

however, the clarity 

provided will improve 

the regulated public’s 

understanding of which 

waters are regulated 

under the Clean Water 

Act.

Unknown; 

USEPA is the 

lead agency for 

the effort.

DoD/

COE

Regulations 

Review

In accordance with the E.O., the 

USACE plan is to solicit 

comments on its Regulations to 

Federal Register 

soliciting 

comments 

The comments received 

in response to 

retrospective review 

Federal Register 

soliciting 

comments 
Department of Defense Retrospective Review Plan Report

January 9, 2012

page 3

make the Regulatory Program 

more effective and less 

burdensome. The USACE 

Regulatory Program’s 

regulations are found at 33 CFR 

parts 320–332 and 334. The 

current Regulations were 

published in the Federal 

Register on November 13, 1986 

(51 FR 41206). These 

Regulations describe the 

fundamental procedures,

policies, authorities, and 

guidelines of the U.S. Army 

Corps of Engineer’s Regulatory 

Program. Since the 1986

Regulations were issued, parts 

of these Regulations have been 

modified and these are to be 

incorporated into one codified 

set of Regulations.

published on 

November 16, 

2011 with 

closing date of 

January 17, 

2012. Priorities 

identified in 

Summer 2012. 

Implementation 

will be ongoing. 

may identify

improvements to the 

Regulations to reduce 

the burden on the 

regulated public and 

make them easier to 

utilize.

published on 

November 16, 

2011 with 

closing date of 

January 17, 

2012. Publish 

Federal 

Register Notice 

summarizing 

comments 

received and 

identifying 

priorities 

published by

Summer 2012. 

Implementatio

n and status 

updates of 

identified 

priorities will 

be ongoing.

DoD/

DARS

0750-

AH21

Definition 

of 

"Qualifying 

Country End 

Product"

DFARS 

Case 2011-

D028

This rule amended the 

definition of "qualifying 

country end product" by 

eliminating the component test 

for qualifying country end 

products that are commercially 

available off-the-shelf items 

(COTS). DoD changed this 

definition as a matter of policy, 

to waive the component test for 

qualifying country end products 

that are COTS items, so it is not 

necessary to try to track the 

origin of components of COTS 

10/04/2011

The rule affects 

manufacturers of 

COTS items in 

qualifying countries, 

removing an 

administrative burden 

for the qualifying 

country manufacturer 

and the Government 

personnel acquiring 

the items.

Final rule 

published at 76 

FR 61282.

No domestic 

entities will be 

impacted by 

this rule. 
Department of Defense Retrospective Review Plan Report

January 9, 2012

page 4

items that are manufactured in a 

qualifying country, in order to 

determine that an end product is 

a qualifying country end 

product. DoD has determined 

that this rule is not excessively 

burdensome to the public, and 

is consistent with a 

determination signed by the 

Administrator for Federal 

Procurement Policy on 

February 14, 2008, regarding 

laws applicable to the 

acquisition of COTS items. The 

rule only affects manufacturers 

of COTS items in qualifying 

countries, removing an 

administrative burden for the 

qualifying country 

manufacturer and the 

Government personnel 

acquiring the items. The 

Regulatory Flexibility Act is 

intended to protect small 

entities in the United States, not 

foreign entities, regardless of 

size. The comparable change 

has already been enacted for the 

benefit of U.S. manufacturers 

of COTS items.

DoD/

DARS

0750-

AH23

Inclusion of 

Option 

Amounts in 

Limitations 

on Authority

of the Dept

This rule amends the Defense 

Federal Acquisition Regulation 

Supplement (DFARS) to 

implement section 826 of the 

National Defense Authorization 

Act for Fiscal Year 2011. 

06/08/2011 None.

Final rule 

published at 76 

FR 33170.

This rule was 

administrative 

in nature 

clarifying that 

the $50M 

threshold limit 
Department of Defense Retrospective Review Plan Report

January 9, 2012

page 5

of Defense 

to Carry Out 

Certain 

Prototype 

Projects

DFARS 

Case 2011-

D024

Section 826 amended the DoD 

pilot program for transition to 

follow-on contracting after use 

of other transaction authority. It 

increases Small Business 

participation.

for contracts 

and 

subcontracts 

includes the 

dollar value of 

all options.

DoD/

DARS

0750-

AH11

Only One 

Offer

DFARS 

Case 2011-

D013

This rule amends the Defense 

Federal Acquisition Regulation 

Supplement to address 

acquisitions in which only one 

offer is received. If less than 30 

days was allowed for receipt of 

proposals, the contracting 

officer must re-solicit for an 

additional 30 days. If the 

solicitation allowed at least 30 

days for receipt of proposals, 

then the contracting officer 

must conduct negotiations. 

Both of these requirements can 

be waived by the head of the 

contracting activity, without 

power of re-delegation. This 

rule was initiated to implement 

the initiative on promoting real 

competition that was presented 

by the Under Secretary of 

Defense for Acquisition, 

Technology & Logistics in a 

memorandum dated November 

3, 2010. In support of this 

initiative, DoD is proposing to 

amend DFARS subparts 215.3 

and 215.4. The rule affects only 

June 2012

Some savings should 

accrue to the 

Government in 

achieving better 

prices.

Public 

comment 

period closed 

10/07/2011; 

public 

comments 

being reviewed 

for 

consideration 

in drafting the 

final report and 

rule.
Department of Defense Retrospective Review Plan Report

January 9, 2012

page 6

those small entities that respond 

to a Federal competitive 

solicitation and no other offer is 

received. Any impact of this 

rule on small business is 

expected to be predominantly 

positive, by allowing more 

opportunity for competition. 

DoD/

DARS

0750-

AH19

Accelerated 

Payments to 

Small 

Business

DFARS 

Case 2011-

D008

This rule amends the Defense 

Federal Acquisition Regulation 

Supplement (DFARS) to 

accelerate payments to all small 

business concerns. Currently, 

DoD assists small 

disadvantaged business 

concerns by paying them as 

quickly as possible after 

invoices are received and 

before normal payment due 

dates established in the 

contract. This rule proposes 

removal of the term 

"disadvantaged" from the 

language at DFARS 232.903 

and DFARS 232.906(a)(ii) 

extending this assistance to all 

small business concerns. This 

will align the DFARS with the 

statutory language at 5 CFR 

1315.5 and FAR 32.903, which 

allows agencies to authorize 

accelerated payment procedures 

for small businesses. Because 

the rule proposes to extend 

accelerated payment assistance 

to all small business concerns, a 

11/18/2011

This rule is expected 

to have a positive 

economic impact on 

small entities by

improving their cash 

flow.

Final rule 

published at 76 

FR 71468.
Department of Defense Retrospective Review Plan Report

January 9, 2012

page 7

positive economic impact on 

small business is expected.

DoD/

DARS

0750-

AG62

Patents, 

Data, and 

Copyrights.

DFARS 

Case 2010-

D001

This rule revises the Defense 

Federal Acquisition Regulation 

Supplement (DFARS) part 227 

to update and streamline the 

regulations relating to patents, 

data, and copyrights. This is a 

follow-on case to DFARS Case 

2003-D049, Patents, Data, and 

Copyrights. The rule removes 

text and clauses that are 

obsolete or unnecessary; 

relocates and integrates the 

coverage for computer software 

and computer software 

documentation with the 

coverage for technical data to 

eliminate redundant coverage 

for these subjects while 

retaining the necessary 

distinctions; eliminates or 

combines the clauses associated 

with technical data and 

computer software, consistent 

with the revised and 

streamlined regulatory 

coverage; relocates, 

reorganizes, and clarifies the 

coverage for rights in works; 

and relocates to the DFARS 

companion resource, 

Procedures, Guidance, and 

Information (PGI), text that is 

not regulatory in nature and 

does not impact the public. 

August 2012 None.

Public 

comment 

period closed 

11/26/2010; 

public 

comments 

under review 

for 

consideration 

in drafting the 

final report and 

rule.

This case 

entails 

significant 

effort to 

rewrite 

DFARS Part 

227.
Department of Defense Retrospective Review Plan Report

January 9, 2012

page 8

Because the rule updates and 

clarifies DFARS text, but 

makes no significant change to 

DoD policy regarding patents, 

data, and copyrights, any 

economic impact is expected to 

be minimal.

DoD/

DARS

0750-

AH20

Electronic 

Ordering 

Procedures

DFARS 

Case 2009-

D037

This rule addresses electronic 

business procedures for placing 

orders. This rule adds a new 

clause in the Defense Federal 

Acquisition Regulation 

Supplement (DFARS) to clarify 

this process and standardize 

issuance of orders via electronic 

means DoD currently has the 

capability to distribute orders 

electronically on a routine 

basis, and can post to a website 

that any contractor can access. 

In order to make this possible, 

the DFARS needs to provide 

language that will make those 

procedures a routine part of 

contract issuance. This will 

enable DoD to further the goals 

of the E-Government Act of 

2002 (Pub. L. 107-347). The 

benefit of this rule to small 

business is that it will make 

electronic distribution 

procedures a routine part of 

order issuance. This change will 

ultimately help improve the 

management and promotion of 

electronic Government services 

05/05/2011

Some savings will 

accrue from using 

standardized 

procedures for 

electronic distribution 

of documents.

Final rule 

published at 76 

FR 25566.
Department of Defense Retrospective Review Plan Report

January 9, 2012

page 9

and processes, and will 

establish a framework to 

improve public access to 

Government information, and 

services.

DoD/

DARS

0750-

AG79

Multiyear 

Contracting

DFARS 

Case 2009-

D026

This rule updated and clarified 

the requirements of Defense 

Federal Acquisition Regulation 

Supplement (DFARS) subpart 

217.1 relating to multiyear 

contracting. This Defense FAR 

Supplement case was initiated 

by DoD based on an internal 

DoD policy decision to perform 

a comprehensive review of 

DFARS subpart 217.1, 

Multiyear Contracting. This 

effort includes reorganizing 

existing coverage for multiyear 

acquisitions. Citations to the 

United States Code, relevant 

DoD regulations, and the 

Federal Acquisition Regulation, 

have been updated. No changes 

to existing DoD policy, 

including implementation of 

any statutorily mandated 

acquisition-related thresholds, 

were made in this rule. Because 

the rule did not change the 

existing requirements of subpart 

217.1 and because these 

requirements are primarily 

internal procedures for DoD, 

any economic impact is 

expected to be minimal.

09/20/2011 None.

Final rule 

published at 76 

FR 58152.
Department of Defense Retrospective Review Plan Report

January 9, 2012

page 10

DoD/

 OSD

0790-

AI77

Provision Of 

Early 

Intervention 

And Special 

Education 

Services To 

Eligible 

DoD

Dependents

This part implements policy, 

assigns responsibilities, and 

prescribes procedures for the:

(1) Provision of early 

intervention services (EIS) to 

infants and toddlers with 

disabilities (birth through 2

years, inclusive) and their 

families, and special education 

and related services (hereafter 

referred to as “special 

services”) to children with 

disabilities (ages 3 through 21 

years, inclusive) entitled to 

receive special services from 

the Department of Defense.

(2) Implementation of a 

comprehensive, 

multidisciplinary program of 

EIS for infants and toddlers 

(birth through 2 years, 

inclusive) with disabilities, and 

their families.

(3) Provision of a free, 

appropriate public education 

(FAPE) including special 

education and related services 

for children with disabilities 

enrolled in the DoD school 

systems, as specified in their 

Individualized Educational 

Programs (IEP).

(4) Monitoring of DoD

programs providing EIS, 

special education, and related 

services for compliance with 

May 2012 Undetermined at this 

time.

Revised rule 

has started the 

coordination 

process within 

the Department
Department of Defense Retrospective Review Plan Report

January 9, 2012

page 11

this part.

(5) Establishment of a DoD

Advisory Panel (DoD-AP) on 

Early Intervention, Special 

Education, and Related 

Services and a DoD

Coordinating Committee (DoDCC) on Early Intervention, 

Special Education, and Related 

Services.

DoD/

OSD

0790-

AI84

National 

Defense 

Science And 

Engineering 

Graduate 

(NDSEG) 

Fellowships

This part establishes guidelines 

for the award of National 

Defense Science and 

Engineering Graduate 

(NDSEG) Fellowships, as 

required by 10 U.S.C. 2191.

End of 2012 Undetermined at this 

time

Revised rule 

has started the 

coordination 

process within 

the 

Department.

DoD/

OSD

0790-

AI85

Shelter For 

The 

Homeless 

Program

This part implements 10 U.S.C. 

2546 by establishing 

Department of Defense policy 

for the Department of Defense 

Shelter for the Homeless 

Program. The Secretary of a 

Military Department, or 

designee, may make military 

installations under his or her 

jurisdiction available for the 

furnishing of shelter to persons 

without adequate shelter in 

accordance with 10 U.S.C. 

2546 and this part if he or she, 

or designee, determines that 

such shelter will not interfere 

with military preparedness or 

ongoing military functions.

End of 2012 Undetermined at this 

time.

Amendment 

rule has started 

the 

coordination 

process within 

the 

Department.

DoD/ 0790- Presentation This part amplifies policy, June 2012 Undetermined at this Revised rule 
Department of Defense Retrospective Review Plan Report

January 9, 2012

page 12

OSD AI75 Of DoDRelated 

Scientific 

And 

Technical 

Papers At 

Meetings

assigns responsibilities, 

prescribes procedures, and 

provides guidance for 

consideration of national 

security concerns in the 

dissemination of scientific and 

technical information in the 

possession or under the control 

of the Department of Defense at 

conferences and meetings. It 

supports current policies 

regarding classified meetings 

and requirements for review of 

scientific and technical papers; 

provides guidance for 

reviewing and presenting 

papers containing export 

controlled DoD technical data; 

establishes procedures for 

containing DoD advice on 

independently produced

scientific and technical papers; 

and provides criteria for 

identifying fundamental 

research activities performed 

under contract or grant that are 

excluded from review 

requirements.

time. has started the 

coordination 

process within 

the 

Department.

DoD/

OSD

0790-

AI73

Withholding 

Of 

Unclassified 

Technical 

Data From 

Public 

Disclosure

This part establishes policy, 

prescribes procedures, and 

assigns responsibilities for the 

dissemination and withholding 

of technical data. In accordance 

with 10 U.S.C. 140c, the 

Secretary of Defense may 

withhold from public 

June 2012 Undetermined at this 

time.

Revised rule 

has started the 

coordination 

process within 

the 

Department.
Department of Defense Retrospective Review Plan Report

January 9, 2012

page 13

disclosure, notwithstanding any 

other provision of law, any 

technical data with military or 

space application in the 

possession of, or under the 

control of, the Department of

Defense, if such data may not 

be exported lawfully without an 

approval, authorization, or 

license under E.O. 12470 or the 

Arms Export Control Act. 

However, technical data may 

not be withheld under this

section if regulations 

promulgated under either the 

Order or Act authorize the 

export of such data pursuant to 

a general, unrestricted license 

or exemption in such 

regulations.