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Department of Defense (DoD)

Preliminary Plan for Retrospective Analysis of Existing Rules

May 18, 2011

I. Executive Summary of Preliminary Plan and Compliance with Executive Order 

13563

Executive Order 13563 recognizes the importance of maintaining a consistent 

culture of retrospective review and analysis throughout the executive branch. Before a 

rule has been tested, it is difficult to be certain of its consequences, including its costs and 

benefits. The Department of Defense’s plan is designed to create a defined method and 

schedule for identifying certain significant rules that are obsolete, unnecessary, 

unjustified, excessively burdensome, or counterproductive. Its review processes are 

intended to facilitate the identification of rules that warrant repeal or modification, or 

strengthening, complementing, or modernizing rules where necessary or appropriate.

The Department of Defense is committed to the principles of retrospective 

analysis in order to improve the effectiveness of the implementation of its regulations, 

improve transparency in the regulatory process through public participation, and to 

provide transparent documentation of its analysis.

The mission of the Department of Defense is to provide the military forces needed 

to deter war and to protect the security of our country. It is the largest Federal 

Department consisting of: three Military Departments (Army, Navy, and Air Force; the 

Marine Corps is part of the Department of the Navy); ten Unified Combatant Commands; 

and, over 1.4 million men and women on active duty, and over 700,000 civilian 

personnel. Another 1.1 million serve in the National Guard and Reserve forces. 

The Department of Defense is not fundamentally a public regulatory agency. 

Because of its nature, composition, and size, DoD is affected by the regulations issued by 

other agencies, such as the Departments of Energy, Homeland Security, Health and 

Human Services, Veterans Affairs, and the Environmental Protection Agency. In turn, 

DoD’s regulations frequently have at least an indirect effect on other agencies, the 

general public, and the national economy. Its regulations address: personnel policy and 

benefits; the military health care program for active duty and retired members and others 

entitled by law to DoD medical care; environmental and navigation activities of the Army 

Corps of Engineers; and, acquisition policy and guidance to facilitate the acquisition 

workforce in acquiring the equipment and services to support the warfighter and DoD’s 

mission worldwide. DoD’s regulations appear in the Code of Federal Regulations (CFR) 

under: title 32, National Defense; title 33, Navigation and Navigable Waters; title 36, 
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Parks, Forests, and Public Property, Chapter III; and title 48, Federal Acquisition 

Regulations System, Chapter II.

II. Scope of Plan

a. Subagencies within the Department which are included in this plan:

This plan applies to the Office of the Secretary (OSD), the Military 

Departments, the Office of the Chairman of the Joint Chiefs of Staff and the Joint 

Staff, the Combatant Commands, the Office of the Inspector General of the 

Department of Defense, the Defense Agencies, the DoD Field Activities, and all 

other organizational entities within the Department of Defense (hereafter referred 

to collectively as the “DoD Components”).

The mission of the Department of Defense (DoD) is to ensure the security 

of the United States and areas of vital interest and to uphold and advance national 

policies and interests of the United States. The Department of Defense is not 

fundamentally a regulatory agency and it is not an agency having broad regulatory 

compliance and administrative enforcement responsibilities. DoD occasionally

issues regulations that affect the public, but reserves the right to exercise the 

exemptions and flexibility permitted in its rulemaking process in order to proceed 

with its overall defense-oriented mission, according to the applicability of the 

military affairs exemption in section 553 of title 5 U.S.C. and section 3 of 

Executive Order 12866, Regulatory Planning and Review. 

The Department issues regulatory actions addressing statutory mandates 

affecting DoD policy and implementing issuances resulting from our national 

security mission, the Military Health System, the acquisition system, 

environmental protection, and the activities of the U. S. Army Corps of Engineers. 

The Department codifies its final rules in the code of Federal Regulations (CFR) 

under: title 32, National Defense; title 33, Navigation and Navigable Waters; title 

36, Parks, Forests, and Public Property, Chapter III; and, title 48, Federal 

Acquisition Regulations System, Chapter II. The Department does not issue

many economically significant regulations.

The majority of the Department’s regulatory actions codified in title 32 of 

the CFR, result from DoD issuances originating within the Office of the Secretary 

(OSD), the principal staff used by the Secretary of Defense to exercise authority, 

direction, and control over the Department. Issuances range from DoD 

Directives, reflecting departmental policy that direct and limit DoD actions in 
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pursuit of its objectives, operations, and plans, to instructions and manuals that 

provide detailed procedures for implementing policy. [DoD Instruction 5025.01, 

DoD Directives Program1, describes the issuance types and their purposes.] All 

types of issuances may result in a regulatory action. An issuance is required to be 

reviewed and published as a rulemaking as defined in DoD Administrative 

Instruction 102, Office of the Secretary of Defense Federal Register System2. For 

example, a rule is required if the issuance: grants a right or privilege to the 

public; requires a course of conduct that must be followed; imposes an obligation 

on the general public; or, describes procedures by which a DoD Component 

conducts its business with the public. These parameters uniformly do not result in 

economically significant regulations.

b. Check all the types of documents covered under this plan:

__X_ Existing regulations

____Significant guidance documents

____Existing information collections

____ Unfinished proposed rules 

____ Other (Specify________)

III. Public Access and Participation

On January 18, 2011, President Obama issued Executive Order (E.O.) 13563, 

“Improving Regulation and Regulatory Review” (76 Federal Register 3821). In response 

to the Executive Order and the resultant implementation guidance from the Office of 

Information and Regulatory Affairs, the Department of Defense (hereafter referred to as 

“the Department”) engaged in the development of a preliminary plan for the retrospective 

analysis of regulations. On Friday, March 25, 2011 (76 Federal Register 16700)3, the 

Department published a request for suggestions on how it might change, streamline, or 

 

1 Available online at: http://www.dtic.mil/whs/directives/corres/pdf/502501p.pdf

2 Available online at: http://www.dtic.mil/whs/directives/corres/pdf/a102p.pdf

3 Available online at: http://frwebgate2.access.gpo.gov/cgibin/PDFgate.cgi?WAISdocID=RnMqC0/0/2/0&WAISaction=retrieve
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repeal its regulations. Two comments were received in response to the request for 

information. The first— an internal comment regarding the consolidation of 

Departmental procurement guidance—was forwarded to the Defense Acquisition 

Regulations Directorate for consideration. The commenter recommended integrating the 

Defense Federal Acquisition Regulation Supplement (DFARS) and its companion 

resource, Procedures, Guidance, and Information (PGI), in order to increase visibility of 

current PGI information and requirements, and simplify and streamline use of the 

regulations.

The second submission came from the Institute for Policy Integrity, New York 

University School of Law, a self-described “non-partisan think tank dedicated to 

improving the quality of government decisionmaking through advocacy and scholarship 

in the fields of administrative law, economics, and public policy.” The organization 

offered several recommendations for the Department to consider in developing 

procedural and substantive policies for conducting restrospective regulatory reviews:

 Retrospect reviews should avoid both deregulatory and pro‐regulatory biases 

and should instead calibrate regulatory programs for improved efficiency and 

effectiveness. 

 Agencies should use retrospective analysis to improve the quality of their 

prospective regulatory reviews. 

 Agencies should adopt clear and publicly available guidelines for selecting 

rules to review. 

 Retrospective analysis should include a thorough and balanced review of a 

rule’s impacts, such as costs and benefits, distributional consequences, and 

other empirical effects. 

 Agencies should design rules ex‐ante so that they can be easily and effectively 

monitored and evaluated. 

 Retrospective review should be transparent and actively seek public 

participation. 

 Agencies should foster independent and ubiased retrospective analysis of 

existing rules by appointing a review team of personnel separate from the 

authors of the initial rule.

The Department accepts the broad suggestions on how to approach regulatory 

review and maximize its benefits. Included is the recommendation that retrospective 

reviews be conducted free of both deregulatory and pro-regulatory biases. This will 

ensure that the review is not centered on a binary determination of whether or not the 

regulation should be in place, and that a full-range of options will be considered 

including the adaptation of regulations to meet statutory obligations in cost-effective, 
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unitrusive ways. Other general recommendations include building accounting 

mechanisms into new regulations to facilitate retrospective review and using the 

empirical data gleaned from these reviews to more accurately conduct prospective 

regulatory reviews in the future. 

Specific recommendations made by the Institute for Policy Integrity will be 

adopted by the Department as it implements its restrospective review program. Rather 

than create a fixed timetable mandating the review of certain regulations, the Department 

will establish guidelines for identifying and prioritizing regulations for which 

retrospective analysis would be most valuable. The criteria used in the discretionary 

approach to review will be communicated to stakeholders in order to increase 

transparency and allow for anticipation of future reviews. They will include identifying 

regulations that are obsolete, unnecessary, unjustified, excessively burdensome, or 

counterproductive. Also, parts that warrant strengthening, complementing, or 

modernizing will be candidates for retrospective review. 

The Department’s restrospective review plan will provide for both quantitative 

and qualitative assessments of the regulation. In addition to a traditional cost-benefit 

analysis, the Department will consider the distributional impact of the regulation in order 

to better understand how the regulation functions in its broader environment and improve 

upon that relationship. In order for these conclusions to be unbiased, the teams 

conducting the retrospective analyses shall be insulated from political pressures. They 

shall also be separate from those who initially promulgated the rule. This will eliminate 

the potential for a subjective review in favor of the regulation as it was originally written. 

Stakeholders will also be notified when the Department is considering a rule for 

restrospective review and if/when that review is initiated. The notification will take place 

through the regulatory docket as it appears on Regulations.gov. For a period following 

the initiation of the review, the public will be invited to comment on the existing 

regulation and its application. Upon completion of the review, the Department will post 

its evaluations to the docket in order to foster transparency and enhance the credibility of 

the review process.

The Department will continue to seek public input on the retrospective regulatory 

review process by publishing similar solicitations for comment in the Federal Register. 

These requests will publish concurrently with the annual Spring Unified Agenda of 

Federal Regulatory and Deregulatory Actions. The Department will invite the public to 

recommend changes to the review process and will seek consultation about existing rules. 

A minimum of 60 days will be used for the comment period. All suggestions will be 

considered and improvements shall be implemented when possible. The Department will 
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also continue to work with the public and business community to determine how its 

regulations can increase efficiency, transparency, and provide accountability.

The Department did not employ other means to reach out to the public for this 

initial effort. In the future we will use the E.O. 13563 Exchange on Regulations.gov to 

post information and seek comment, as well as DoD’s Open Government Webpage.

IV. Current Agency Efforts Already Underway Independent of E.O. 13563

a. Summary of pre-existing agency efforts (independent of E.O. 13563).

In accordance with E.O. 12866, Regulatory Planning and Review, the 

Department developed a plan for the periodic review of its economically 

significant rules. The chronological parameters for the review were as follows:

1. Existing significant regulations would be reviewed at the rate of three per 

quarter, beginning with the second quarter in Fiscal Year 1994, and until 

such time as all existing significant regulations were reviewed;

2. Existing significant regulations having been initially reviewed in 

accordance with the plan would be subsequently reviewed at three year 

intervals thereafter; and,

3. Subsequently published significant regulations would be reviewed three 

years after their publication date and at three year intervals thereafter.

The review criteria used mirrored elements contained in Section 1 (b) of 

E.O. 12866. After the initial review the Department’s regulatory entities 

scheduled reviews on an ad hoc basis consistent with program priorities. 

b. Specific rules under consideration for retrospective analysis.

A list of specific rules subject to retrospective analysis will be developed 

with input from the DoD Components. Currently, the title 32 regulations coupled 

to DoD issuances that will be reviewed are identified in Attachment 1. The 

attached list of the Department’s regulatory actions codified in title 32 of the 

CFR, result from DoD issuances originating within the Office of the Secretary 

(OSD), the principal staff used by the Secretary of Defense to exercise authority, 

direction, and control over the Department. Issuances range from DoD 
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Directives, reflecting departmental policy that direct and limit DoD actions in 

pursuit of its objectives, operations, and plans, to instructions and manuals that 

provide detailed procedures for implementing policy. An issuance is required to 

be reviewed and published as a rulemaking as defined in DoD Administrative 

Instruction 102, Office of the Secretary of Defense Federal Register System. For 

example, a rule is required if the issuance: grants a right or privilege to the public; 

requires a course of conduct that must be followed; imposes an obligation on the 

general public; or, describes procedures by which a DoD Component conducts its 

business with the public.

The review of these parts of title 32 will mirror the established schedule of 

the DoD Directives Program. An issuance is considered current when stated 

policies and information is current with Administration policy and has been 

revised or certified as current by the Head of the DoD Component within five 

years of the publication date. The parts identified in Attachment 1 fall outside of 

the established timeframe and must be reviewed. The issuance review is a special 

focus of interest from the Director, Administration and Management and the 

Office of the Secretary.

Rules already under consideration for retrospective analysis in title 48, 

Federal Acquisition Regulations System, Chapter II, are identified in Attachment 

2. The criteria used to select regulations for review identify rules that are 

obsolete, unnecessary, unjustified, excessively burdensome, or counterproductive.

Parts that that warrant strengthening, complementing, or modernizing are also 

slated for review. Particular attention is paid as to whether these rules create 

barriers to entry or drive up the length or cost of the contracting process.

c. Regulatory burden reduction.

In an effort to reduce the burden on entities regulated under title 48, 

Federal Acquisition Regulations System, Chapter II, the following rules are either 

forthcoming or have recently been implemented:

1. DFARS Case 2011-D028, “Definition of ‘Qualifying Country End 

Product’” - This rule will remove component test for COTS items that are 

qualifying country end products. It will require only the determination of 

country of origin of the COTS item, not the origin and value components 

of the COTS item. The Government-unique requirement to track where 

components are being manufactured imposes a severe administrative 

burden, especially on small business. It requires contractors to establish 

and maintain costly and labor intensive management systems. Tracking 
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the place of manufacture and component value is not necessary for the 

general origin labeling requirements generally applicable in the 

commercial marketplace. Tracking components adds complexity and cost

to the delivery of goods to the Government.

2. DFARS Case 2011-D008, “Accelerate Small Business Payments”

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-

Currently, DoD assists small disadvantaged business concerns by paying 

them as quickly as possible after invoices are received and before the 

normal payment due dates established in the contract. This rule removes

the term "disadvantaged" from the language at DFARS 232.903 and 

DFARS 232.906(a)(ii), thereby extending this payment policy uniformly 

to all small business concerns, not just small disadvantaged businesses. 

Accelerating payments to all small businesses improves their cash flow 

and removes some of the burden of obtaining extra financing to maintain 

cash flow until payment is received from the Government. DoD estimates 

that approximately 60,000 small businesses will be positively affected by 

the use of accelerated payment procedures.

3. DFARS Case 2009-D037, “Electronic Ordering Procedures”

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- This rule 

makes electronic distribution procedures a routine part of order issuance 

and establish a standard method for issuance of orders by electronic 

means. DoD currently has the capability to distribute orders electronically

on a routine basis, and can post those orders centrally to a site any

contractor can access. This rule enables DoD to further the goals of the EGovernment Act of 2002, and make it easier for offerors/contractors to

receive electronic orders. The benefit of this rule to small business is that 

it makes electronic distribution procedures a routine part of order issuance. 

This change will ultimately help improve the management and promotion 

of electronic Government services and processes and establish a

framework to improve public access to Government information and 

services.

V. Elements of Preliminary Plan/Compliance with E.O. 13563

a. How does the agency plan to develop a strong, ongoing culture of retrospective

analysis?

 

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Interim Final Rule published on April 27, 2011 (76 FR 23505) with an immediate effective date and is available 

online at: http://frwebgate3.access.gpo.gov/cgi-bin/PDFgate.cgi?WAISdocID=yX3ch2/0/2/0&WAISaction=retrieve

5 Direct Final Rule published on May 5, 2011 (76 FR 25566) with an immediate effective date and is available 

online at: http://frwebgate1.access.gpo.gov/cgi-bin/PDFgate.cgi?WAISdocID=z7MIi0/0/2/0&WAISaction=retrieve
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A new Department of Defense Instruction establishing policies and 

procedures addressing regulatory review and approval will be issued by 

September 30, 2011. This issuance will incorporate the principles of E.O. 13653 

and guidance from the Office of Information and Regulatory Affairs. As the 

proponent for this issuance, the Director, Administration and Management, will 

encourage the use of retrospective analysis to improve the effectiveness of the 

Department’s regulatory program and the efficacy of its regulatory actions. The 

Director hosts a senior administrative forum that provides a structured 

environment to coordinate and integrate OSD-wide administrative and 

management issues. The purpose of the forum is to improve the quality, 

effectiveness, and efficiency in common operational practices and areas of shared 

interest to the senior OSD staff, such as the regulatory process.

Retrospective analysis represents a collaborative effort of individuals and 

organizations within the Department of Defense. To that end, the Department’s 

regulatory focal points will be tasked to appoint a senior analyst to participate in a 

working group responsible for coordinating their Component’s retrospective 

analysis. This group will identify and formalize processes and tools to 

accomplish the analysis, including how best to engage the public in partnering in 

improving our regulations. A first step for this group, would define a 

prioritization process to review Departmental regulations that effectively manages 

resources and ensures independence. 

b. Prioritization. What factors and processes will the agency use in setting priorities?

The Department will not use a mandatory timetable for review, but instead 

utilize a discretionary approach in selection determined by the functional 

programs issuing regulations. A General Accountability Office report, GAO-07-

791, Reexamining Regulations: Opportunities Exist to Improve Effectiveness and 

Transparency of Retrospective Reviews, reported that agencies employing 

discretionary reviews were more productive and more likely to result in further 

action. Discretionary reviews are more likely to be responsive to current issues 

and public interest. The DoD Components will establish their own priorities and 

guidelines, as appropriate to the functional program and available resources. 

Component guidelines will be supplemented by guidelines developed from a 

working group that has yet to be formed. A focus on existing regulations that 

were considered economically significant at the time they were initially 

promulgated is one consideration, as are regulations that are of particular interest 

to the public. Criteria used to select regulations for review will identify rules that 
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are obsolete, unnecessary, unjustified, excessively burdensome, or 

counterproductive. Regulations that warrant strengthening, complementing, or 

modernizing will also be slated for review.

c. Initial list of candidate rules for review over the next two years.

See Attachment 1 for parts identified for review in title 32. See 

Attachment 2 for parts identified for review in title 48, Federal Acquisition 

Regulations System, Chapter II.

The Army Corps of Engineers will revise its nationwide permits, a rule 

that authorizes approximately 35,000 activities annually. Under law, the 

nationwide permits can be issued for a period of no more than five years, and 

must be reissued in order to continue to authorize activities with minimal 

individual and cumulative environmental effects. The Corps is currently working 

with the U.S. Environmental Protection Agency to revise the agencies’ 

regulations defining the term “waters of the United States,” a critical term used to 

identify activities that require Clean Water Act permits.

d. Structure and Staffing.

The General Counsel of the Department of Defense, as the Regulatory 

Policy Officer (RPO), is responsible for monitoring regulatory activities within 

DoD to ensure uniform compliance with the implementation of executive and 

legislative requirements and priorities, to include the specific requirements of 

Executive Orders 12866 and 13563. All regulatory actions are approved by the 

RPO prior to any review by the Office of Management and Budget.

The Director, Administration and Management (DA&M), as the functional 

proponent for the Regulatory Program and the Plan, manages the operational 

requirements of the regulatory process. The Chief, Information Management 

Division, Executive Services Directorate, Washington Headquarters Services, 

administers the program on behalf of the DA&M. 

Name/Position Title: Robert L. Cushing, Jr., Chief, Information 

Management Division; 703-696-5282; Email address: Robert.Cushing@whs.mil
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e. How does the agency plan to ensure that agency’s retrospective team and process

maintains sufficient independence from the offices responsible for writing and 

implementing regulations?

The Director, Administration and Management, is responsible for

regulatory process compliance. The DoD Components responsible for writing the 

individual regulatory actions must obtain approval prior to submission for OMB 

review and publication from the RPO through the DA&M. As such, the Director 

acts as an independent advocate for the process. 

f. Describe agency actions, if any, to strengthen internal review expertise. This 

could include training staff, regrouping staff, hiring new staff, or other methods.

Staff within the Director, Administration and Management will maintain a 

close relationship with the DoD Components to ensure retrospective analysis is 

used. The Director administers the Department’s Federal Docket Management 

System component of the Regulation.gov portal, as well as the functions of the 

OSD Federal Register Liaison, to ensure public participation in how best to 

promote retrospective analysis.

g. How will the agency plan for retrospective analysis over the next two years, and 

beyond?

The Department will institutionalize retrospective analysis within its 

regulatory program in policies and procedural guidance with publication of a DoD 

policy instruction and the formation of a working group of senior analysts.

h. How will the agency decide what to do with analysis?

DoD Components Heads will decide to amend existing regulations in 

order to improve implementation or eliminate the regulation based on the 

analysis.
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i. Plans for revising rules and schedules for periodically revisiting rules.

Rulemaking in the Department of Defense is decentralized to functional 

programs of the DoD Components.

The majority of the Department’s regulatory actions codified in title 32 of 

the CFR, result from DoD issuances originating within the Office of the Secretary 

(OSD), the principal staff used by the Secretary of Defense to exercise authority, 

direction, and control over the Department. The review of these regulatory 

actions will mirror the established schedule of the DoD Directives Program. The 

action is considered current when stated policies and information contained is 

current with Administration policy and has been revised or certified as current by 

the Head of the DoD Component having cognizance, within five years of the 

publication date. The issuance review is a special focus of interest from the 

Director, Administration and Management. 

TRICARE comprises the DoD medical and dental programs pursuant to 

chapter 55 of 10 U.S.C. under which medical and dental services are provided to 

DoD health care beneficiaries. Health Affairs/TRICARE Management Activity 

(TMA) keeps Part 199 up-to-date by reviewing legislative changes in the National 

Defense Authorization Act (NDAA). When the NDAA includes a new benefit, a 

new reimbursement system, or another provision that TRICARE must implement, 

Part 199 is amended by writing the proposed and final rules necessary to do so. 

For all new TRICARE benefits and modifications of existing benefits, TRICARE 

conducts formal, documented, independent Government cost estimating. These 

estimates are provided to Senior Health Affairs leaders in conjunction with 

requests for their decisions concerning whether to implement the new or modified 

benefits. Upon determination by these decision authorities that the new or 

modified benefit is cost-effective and should be implemented, TRICARE 

commences the formal rulemaking process. If after actual implementation occurs 

and the anticipated effectiveness of the new or modified benefit is not achieved, 

TRICARE considers whether amendment of the rule is warranted.

The Defense Acquisition Regulations System (DARS) develops and 

maintains acquisition rules codified in title 48, Chapter II. The DARS 

accomplishes an on-going regulatory review each time it publishes a proposed or 

interim Federal Acquisition Regulation (FAR) or Defense Federal Acquisition 

Regulation Supplement (DFARS) rule, requesting comments on any other

regulations in the subpart affected by the rule. In addition, DARS plans to publish 

a notice every five years, requesting comments on those sections of the DFARS 
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that were not affected by a proposed or interim rule during the preceding five 

years.

To comply with E.O. 13563, the Army Corps of Engineers’s preliminary

plan is to publish in October 2011, a Federal Register notice to solicit comment 

on which of its regulations should be evaluated for modification, streamlining, 

expansion, or repeal to make the Regulatory Program more effective or less

burdensome. The comment period will be 60 days. To facilitate public comment, 

the Federal Register notice will include the URL for a website that has all of the 

Corps Regulatory Program's current regulations, as well as supporting program 

data and information. To solicit input from as many interested parties as possible, 

each of the 38 Corps districts will issue local public notices announcing the 

publication of the Federal Register notice and the request for comments. The 

Corps will evaluate all comments received to develop its list of review priorities, 

and will publish a notice in the Federal Register that summarizes the comments 

received and lists the review priorities. The website will be updated as proposal 

revisions and final revisions to its regulations occur.

The Corps is in the process of revising its nationwide permits, a rule that 

authorizes approximately 35,000 activities each year. Under law, the nationwide 

permits can be issued for a period of no more than five years, and must be 

reissued in order to continue to authorize activities with minimal individual and 

cumulative environmental effects. The Corps is also working with the U.S. EPA 

to revise the agencies' regulations defining the term "waters of the United States," 

a critical term used to identify activities that require Clean Water Act permits. 

These two rulemaking activities, in addition to the day-to-day management of the 

Regulatory Program, will take up most of the Headquarters Regulatory staff time 

and resources for the next year.

VI. Coordination with other federal agencies.

The Department coordinates its developing rules with other agencies having 

equity. Additionally, it addresses other agency interests during interagency review under 

E.O. 12866. The Department will apply this standard during any retrospective review.

VII. Peer review in conducting analyses.

Peer review will be considered based on availability of resources. It will not 

generally be used since the Department’s regulatory actions address Defense policy and 
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procedures affecting the public, rather than parameters of science and technology applied 

to regulated parties.

VIII. Components of Retrospective Cost-Benefit Analysis

When appropriate, the Department will assess the potential costs and benefits of 

its regulatory actions according to guidance found in the Office of Management and 

Budget Circular A-4, Regulatory Analysis, and best practices. The application of costbenefit analysis retrospectively will update ex-ante information regarding the 

effectiveness of the regulatory scheme and its current costs and benefits on the regulated 

parties. Ex-ante data used initially at the proposed stage, when updated, can serve to 

strengthen ex-ante decisions or form the basis for amendment. Currently, cost-benefit 

analysis is conducted somewhat independent of the rule writers. For example, TRICARE 

Management Activity conducts formal, documented, and independent cost estimating

when new health benefits are proposed or modifications of existing benefits are required. 

The Army Corps of Engineers relies on the economists and staff at their Institute for 

Water Resources whenever an economic analysis is required. Generally, due to the 

nature of the Department’s regulatory actions, the incorporation of experimental design is 

not warranted.

IX. Publishing the Department of Defense’s Plan Online

The Department of Defense, as an eRulemaking partner agency, will use the E.O.

13563 Exchange to publish its retrospective review plan and available data. We will 

develop an agency information page to post specific E.O. 13563 information and seek 

comments. The Department is committed to supporting the Open Government Initiative 

to improve transparency, participation, and collaboration. To further promote public 

participation, DoD’s Plan will be made available online on our Open Government 

Webpage (http://www.defense.gov/open) for comment and suggestions.