Recommendations and Actions
Federal regulatory agencies confront numerous overlapping and cross-cutting issues. One reason for the overlap is that the government must divide itself into organizational units--and the problems the government has to solve do not fit neatly into these divisions. Overlap also arises from science, economic, and policy issues that cut across a wide variety of problems and agencies..[Endnote 1] Agencies also face similar cross-cutting concerns about how best to administer the regulatory process.
Some of the governmental divisions of responsibility may not make sense, but even those that are sensible create potential for conflicting or duplicative regulations. For instance, it is logical to have one agency in charge of workplace safety and another in charge of food safety. Such a division, however, can cause problems. For example, in the early 1980s chocolate manufacturers had difficulty deciding how to meet both noise standards imposed by the Occupational Safety and Health Administration (OSHA) and hygiene standards imposed by the Food and Drug Administration (FDA).[Endnote 2] One problem was the concern that porous insulation that reduced noise from machinery could not be kept clean enough to meet FDA standards.
It is also common for agencies to have overlapping jurisdiction for the same or related problems. For example, at least three agencies regulate food safety: FDA (food items exclusive of meat and poultry), the Food Safety and Inspection Service in the Department of Agriculture (USDA) (meat and poultry), and the Environmental Protection Agency (EPA)(pesticide tolerances).[Endnote 3] Housing is regulated by, among others, the Department of Housing and Urban Development (HUD), the Department of Veterans Affairs (through loan standards), and USDA (through Farmers Home Administration loan standards). Particular substances or chemicals also may be regulated by different agencies in different settings. Lead, for example, poses problems that fall within the jurisdiction of numerous agencies--representatives of approximately 15 different federal agencies are on the Interagency Task Force on Lead (including HUD, EPA, FDA, the Consumer Product Safety Commission (CPSC), the Department of Health and Human Services' Centers for Disease Control, and the Department of Defense).[Endnote 4]
The potential for conflict also arises because individual industries are regulated by several agencies. For example, the auto industry has to meet vehicle safety and fuel economy standards issued by the National Highway Traffic Safety Administration (NHTSA), vehicle and plant emission standards issued by EPA, worker safety standards issued by OSHA, advertising requirements issued by the Federal Trade Commission, and securities regulations governed by the Securities and Exchange Commission, to name just a few.
CURRENT COORDINATING MECHANISMS.
Currently, interagency coordination early in the rulemaking process occurs on an ad hoc basis--e.g., when a specific complaint arises or as executive branch or congressional offices identify a particular problem. The Office of Information and Regulatory Affairs (OIRA) in the Office of Management and Budget (OMB) provides a backstop on a rule-by-rule basis through its executive order review.[Endnote 5]
At times, agencies do coordinate with each other on specific problems. For example, FDA, USDA, and EPA recently announced joint efforts to address problems posed by pesticide residues in food.[Endnote 6] EPA and the Departments of Transportation (DOT) and Energy coordinate on the corporate average fuel economy standards for automobiles. An interagency committee on migrant farmworkers, led by the Departments of Health and Human Services (HHS), Education, and Labor, addresses problems caused by overlapping jurisdiction on migrant farmworker issues.
A limited number of opportunities also exist to coordinate or exchange information about broader regulatory issues. General counsels from various agencies and chairs of independent regulatory commissions meet occasionally under the sponsorship of the Administrative Conference of the United States (ACUS), which serves as an advisory agency and a clearinghouse on administrative law procedure.[Endnote 7] The Office of Science and Technology Policy (OSTP) and the Federal Coordinating Council for Science, Engineering and Technology also occasionally coordinate scientific issues, as when OSTP issued its carcinogen risk guidelines.[Endnote 8]
Coordination, or at least exchange of information, also occurs at the staff level in several informal forums. Scientists from different agencies researching in a particular field often communicate with each other about their research.[Endnote 9] A small group of career staff regulators from various agencies have a brown-bag lunch once a month to exchange experiences and ideas about ways to improve the regulatory process. A larger group of regulatory professionals from different federal agencies and disciplines operate the Interagency Regulatory Colloquium, a monthly workshop to explore program- level problems and innovative practices within agencies, and to discuss issues of current concern. [Endnote 10]
As mentioned above, OMB also serves as a backstop to identify and require resolution of conflicting regulations. For example, OMB found that the Mine Safety and Health Administration was proposing to issue a regulation requiring radon in mines to be vented to the outside to reduce mine workers' exposure. EPA, on the other hand, planned to issue a regulation prohibiting the venting of radon from mines so as to protect the surrounding communities. OMB brought the agencies together to resolve this obvious conflict.[Endnote 11]
Need for Change
Under the current ad hoc coordination process, coordination does not occur at the proper levels on a number of problems that could benefit from it.
OMB's rule-by-rule review process, although it does catch some problems and is an important method of executive oversight, is neither a comprehensive nor an efficient method for coordinating regulatory policy. By the time a rule gets to OMB, policy options are already limited and agencies are heavily invested in proceeding with their rules. Additionally, OMB's rule-by-rule review by itself tends to force policy development and coordination into the often overheated context of the development of a single rule or issue. This can result in reactive and fragmented policy development that inhibits the government's ability to coordinate broad-reaching regulatory policy issues effectively.
Lack of coordination creates numerous problems. First and foremost are problems of duplicative or conflicting regulations. Also, agency expertise is called into question when different agencies produce different decisions about, for example, a chemical's hazard. Lack of coordination also can waste agency money if it results in a series of reinventions rather than an exchange of experiences and information.
The existing division of responsibility within the government also causes less obvious problems. Grouping regulators by expertise (e.g., worker safety, product safety, environment) facilitates issuing regulations, but can interfere with compliance. For instance, regulations from different agencies are not usually coordinated in such a way that a process or product need only be changed once to take into account several regulatory changes. In fact, it is difficult to do this within one agency or department, much less between or among departments.
--It took the intervention of the Office of the Secretary of Transportation to get the Federal Aviation Administration (FAA) and NHTSA (both within DOT) to adopt regulations for child safety seats that could meet aircraft and car safety seat requirements. Otherwise, airplane trips would have required parents to bring along two child seats--one for the plane ride and one for the car trip.
--In a recent rulemaking for the pulp and paper industry, EPA addressed water and air pollution regulations simultaneously--an important improvement in the way the agency does business.[Endnote 12] The fact that this is the exceptional way of regulating, rather than the norm, illustrates how far government agencies have to go in looking at the picture from the regulated entity's viewpoint.
Lack of coordination also results in less serious inefficiencies. Exchanging information on the rulemaking process could help agencies help each other. For example, some offices in EPA have been using direct final rulemaking for 10 years as a way of streamlining procedures and reducing unnecessary paperwork for minor rules. When staffs from other agencies were told of this process, many expressed interest in using the idea or adapting it slightly as needed for their particular circumstances.
The Carnegie Commission on Science, Technology, and Government recently identified lack of coordination as a significant problem in our country's efforts to control environmental and other risk-related hazards. It noted that "[w]orse probably than the occasional high-profile mistake is the sum of the myriad inefficiencies and inconsistencies that result from lack of interagency communication, any one of which by itself might be considered minor."[Endnote 13]
A systematic, but short-lived, attempt at comprehensively coordinating regulatory policy was made during the last two years of the Carter Administration. After a successful forum was created among EPA, OSHA, CPSC, and FDA (known as the Interagency Regulatory Liaison Group), President Carter created the United States Regulatory Council late in 1978 to coordinate and improve regulations. [Endnote 14]
The Council had a variety of projects aimed at increasing the use of innovative approaches to regulation and at coordinating regulatory efforts among agencies. It started a calendar of federal regulations. It issued a set of pamphlets on innovative approaches to regulation.[Endnote 15] Coordination was attempted in several ways. Several projects looked at how regulation and other government actions affected specific industries (e.g., the auto and coal industries). One project looked at a science policy issue that cut across several agencies. Another project looked at how government regulation was viewed by citizens in a small city, Janesville, Wisconsin. Although the Council's projects were not equally successful, and the Council was not in operation all that long, it was moving in the right direction. People involved with the Council liked the fact that the agencies set the agenda, and it was seen as a way for the agencies to help themselves improve regulation.[Endnote 16] The Council was disbanded shortly after President Reagan took office.[Endnote 17]
1. Create an interagency Regulatory Coordinating Group to share information and coordinate approaches to regulatory issues. (2)
The President should establish an interagency Regulatory Coordinating Group (RCG) to provide agencies with a mechanism to share information and coordinate approaches to regulatory issues. The regulatory review executive order should create such a group and name the Administrator of OIRA as the Chair. The Group should be composed of political appointees or their designees from the key domestic regulatory agencies and certain key White House advisors.
MISSION OF THE RCG. The RCG's mission should be to provide a forum for agencies to discuss issues of common concern, to assist agencies in finding more innovative approaches to regulation and better methods of developing regulation, and to improve coordination of regulatory policies. Meetings of the RCG should allow high-level regulators to discuss specific problems they are confronting and seek advice from similarly situated peers.[Endnote 18] The RCG should also decide what issues the Group should address and, as needed, establish task forces or working groups (including identifying a lead agency, designating which agencies and types of representatives should participate, and setting a goal for the group).
The RCG could also be used as a forum to identify areas requiring coordination of two or more agencies on program development (similar to the joint efforts now underway on lead and pesticides). However, the RCG should not necessarily oversee this coordination or resolve substantive conflicts. Once the area and relevant agencies have been identified, the affected agencies should establish the proper structure for coordination and would not necessarily report back to the RCG.
STRUCTURE OF THE RCG.
The RCG itself needs to be composed of political appointees or their designees. Without high level support and direction, agency staff would be unlikely to spend the necessary time on RCG projects. Only political appointees or their designees can speak authoritatively for each agency, decide on the issues to which the agencies will commit resources, reach consensus on policies coming from the working groups, and direct implementation of recommendations.
The RCG should accomplish most of its work by acting as an umbrella organization with task forces or working groups addressing specific issues. The task forces could be political appointees or career staff or both, depending on the goal of the task force. Representatives from different levels and disciplines within the agencies should needed to address different tasks. For some issues, it might be best for working groups to present a consensus view. In other situations, the best result might be a full statement of opposing views with the points of contention highlighted.
The primary staff work for the RCG should be done by agency staffs in the task force or work group structure. This would allow agency experts who deal with a specific issue on a routine basis to compare notes with experts from other agencies. Resolution of scientific issues, for example, is done better by scientists who can critique each other's work. Similarly, improving agency/congressional relationships would probably best be handled by a task force of agency liaisons to Congress.
ISSUES FOR THE RCG.
The RCG's tasks should include the following:
--Actively encouraging the use of innovative approaches to regulation. It should oversee the development of the Deskbook on Regulatory Design and identify innovative regulators from the agencies who can serve as resources for other regulators to contact for assistance in developing innovative approaches.[Endnote 19] An RCG group should also work with Congress to improve understanding of the merits and limits of innovative approaches.
--Considering substantive policy areas that are in need of coordination (e.g., risk prioritization, valuation of lives saved or injuries avoided, measurement of future costs or benefits, valuation of eco-systems, and cost-benefit analysis).
--Considering ways to improve the rulemaking process (e.g., increasing public participation, using information technology, removing procedural barriers, and improving agency/ congressional relationships).
--Looking at ways for agencies to help people comply with regulations and to increase compliance through innovative means, such as sampling and auditing.[Endnote 20]
CROSS-REFERENCES TO OTHER NPR ACCOMPANYING REPORTS
Environmental Protection Agency, EPA02: Streamline EPA's Permit Program.
Department of Health and Human Services, HHS03: Develop a National, Uniform Inspection System to Ensure a Safe Food Supply.
National Science Foundation/Office of Science and Technology, NSF01: Strengthen Coordination of Science Policy.
Rethinking Program Design, DES01: Activate Program Design as a Formal Discipline.
Streamlining Management Control, SMC04: Increase the Effectiveness of Offices of General Counsel.
1. For example, different agencies implicitly use different values for life in determining the monetary benefits of a rule. Administrative Conference of the United States (ACUS), "Valuation of Human Life in Regulatory Decisionmaking," Recommendation 88-7, 1 C.F.R. 305.88-7.
2. Mayer, Caroline E., "Chocolate Industry's Bittersweet Tale of Conflicting U.S. Rules," Washington Star (October 24, 1980); and U.S. Regulatory Council, internal memorandum, "Chocolate Manufacturers Association Complaint About Apparent Conflict Between FDA and OSHA Regulations," undated.
3. National Performance Review (NPR) is recommending the creation of a single food safety agency. See NPR Accompanying Report, Health and Human Services, "HHS03: Develop a National, Uniform Inspection System to Ensure a Safe Food Supply."
4. Telephone interview with Ellis Goldman, Director, Division of Program Management, Office of Lead-Based Abatement and Poisoning Prevention, Department of Housing and Urban Development, August 18, 1993.
5. The planning required by Executive Order 12498 (see Introduction to this report) has proven less than useful. Discussions with regulatory officials from various agencies, convened at the Department of Transportation (May 13, 1993); and Elliott, Donald, "TQMing OMB: Or Why Regulatory Review Under Executive Order 12291 Works So Poorly and What President Clinton Can Do About It," draft, August 17, 1993, p. 24, forthcoming in Law and Contemporary Problems, vol. 57 (1994). Review by the Office of Management and Budget (OMB) as a means of executive oversight of rule development was not specifically addressed by NPR because a special working group in the Clinton administration was addressing this issue, as explained in the Introduction.
6. Kenworthy, Tom, and John Schwartz, "3 U.S. Agencies Announce Joint Commitment To Cut Pesticide Use," Washington Post (June 26, 1993), p. A5.
7. Since the 1960s, ACUS has served as the government's in-house advisory agency and clearinghouse on administrative procedure. Its membership of 101 government and private-sector procedural experts debate and adopt advisory recommendations to the executive branch and Congress on procedural reforms. See 5 U.S.C.A. 591-596 (1993 Supp.).
8. Office of Science and Technology Policy, Chemical Carcinogens: A Review of the Science and Its Associated Principles (February, 1985), 50 Federal Register 10371-10442 (1985).
9. Scientists researching various aspects of the problems posed by lead shared information before any formal mechanism was established for interagency coordination on this issue. Telephone interview with Ronnie Levin, Chief, Water Team, Office of Science Planning and Regulatory Evaluation, Environmental Protection Agency, July 22, 1993.
10. Telephone interview with Dr. Paula Cohen, Senior Regulatory Analyst, Animal and Plant Health Inspection Service, Department of Agriculture, August 13, 1993.
11. Letter from S. Jay Plager, Administrator, Office of Information and Regulatory Affairs, to Jennifer Dorn, Assistant Secretary for Policy, Department of Labor, August 22, 1989.
12. Cleland-Hamnet, Wendy, and Joe Retzer, "Crossing Agency Boundaries," Environmental Forum, vol. 10, no. 2 (March-April, 1993) p. 17.
13. Carnegie Commission on Science, Technology, and Government, Risk and the Environment: Improving Regulatory Decision Making (Washington, D.C., June 1993), p. 64.
14. The Regulatory Council, which was composed of 20 executive departments and 18 independent regulatory agencies, was directed "to identify and resolve conflicts in regulation, manage government-wide efforts to better measure and plan the effect of new regulations on different sectors, and to identify and eliminate barriers to more cost-effective and less burdensome regulation." United States Regulatory Council, Report From the Director (July 1980), p. 1. The member departments and agencies of the Regulatory Council were: the Administrative Conference of the United States; the Departments of Agriculture, Commerce, Education, Energy, Health and Human Services, Housing and Urban Development, the Interior, Justice, Labor, Transportation, and the Treasury; the Environmental Protection Agency; the Equal Employment Opportunity Commission; the Federal Emergency Management Agency; the General Services Administration; the National Credit Union Administration; the Small Business Administration; the United States International Trade Commission; the Veterans Administration; the Civil Aeronautics Board; the Commodity Futures Trading Commission; the Consumer Product Safety Commission; the Federal Communications Commission; the Federal Deposit Insurance Corporation; the Federal Election Commission; the Federal Energy Regulatory Commission; the Federal Home Loan Bank Board; the Federal Maritime Commission; the Federal Mine Safety and Health Review Commission; the Federal Reserve System; the Federal Trade Commission; the Interstate Commerce Commission; the National Labor Relations Board; the Nuclear Regulatory Commission; the Occupational Safety and Health Review Commission; the Postal Rate Commission; and the Securities and Exchange Commission.
15. Project on Alternative Regulatory Approaches, Guidebook Series on Alternative Regulatory Approaches, Books 1-6 (Washington D.C., September 1981). The series includes:
Overview, Book 1;
Marketable Rights, Book 2;
Performance Standards, Book 3;
Monetary Incentives, Book 4;
Information Disclosure, Book 5; and
Tiering, Book 6.
16. Interview with Doug Costle, former Chair, U.S. Regulatory Council, June 28, 1993.
17. Batten, Donna, ed., Encyclopedia of Governmental Advisory Organizations, 1994-5, ninth ed. (Washington, D.C.: Gale Research, Inc., 1993).
18. Members of the Regulatory Council reported that they found the Regulatory Council a very useful way to get advice from people in similar situations.
19. The Regulatory Coordinating Group (RCG) should coordinate with the Program Design Office recommended in the report Rethinking Program Design. (See "DES01: Activate Program Design as a Formal Discipline.")
20. One hindrance to compliance is that the government regulates and organizes its regulations by subject area (e.g., labor, equal employment opportunity, highway safety, environmental protection) rather than by industry sector (e.g., gas stations, chemical companies, auto companies). Currently, if a small business wants to find out what regulations govern its actions, it must review each of the substantive parts of the multivolume Code of Federal Regulations to determine its obligations (although there may be private services that compile this information more usefully). It would be easier for the small business if there were an industry- specific listing of what regulations apply. Compiling such a listing and making it useful may be a very complicated proposition. It might be easier to have an office that helps businesses wend their way through the regulatory maze. See, e.g., the NPR report Environmental Protection Agency, "EPA 02: Streamline EPA's Permit Program to Improve Agency Efficiency and Customer Service." The RCG should consider a pilot program to determine what is feasible.
The RCG should also look at other ways to coordinate regulation by looking at regulation from the regulated entity's perspective. RCG should consider whether it would be useful to compile planned regulations by industry sector, as the Regulatory Council did for the auto industry. Also, see "REG02: Encourage More Innovative Approaches To Regulation."
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