By Brian Barnett
It is surprising that there are no well-defined metrics for determining whether a federal regulation is working as intended or even if it is being properly enforced. Federal agencies create regulations through a convoluted, drawn-out process, but then most of these regulations do not receive any further scrutiny once they are enacted. It appears that “post-regulation analysis” is limited to those rules that have a specific mandate to update themselves on a regular schedule (e.g.: the Safe Drinking Water Act 1996 Amendments require the EPA to reevaluate the maximum acceptable levels of water contaminants in drinking water every six years). However, even these updates lack any consistent measurement of efficacy.
This raises the question: for all of the work that goes into fighting over a regulatory action or policy, who pays attention to the actual outcomes once it is passed? There is a wealth of information available that analyzes the back-and-forth process of internal, OMB, legislative, and judicial review that weighs down a regulatory action, with incredibly complex cost-benefit analysis, regulation negotiation, etc. However, it seems that the body of research on rulemaking as well as the actual activity of the federal regulatory agencies all focus on creation side of the process. The question of who analyzes regulations after they have been passed still remains. All of the above regulatory activities occur prior to the final posting of a regulation, and while they are surely helping to resolve known issues with a regulation’s implementation, they are not guarantors of its actual success. Reviewing the regulation and all that it intends to accomplish is useful, but it is ultimately inconsequential if the regulation does not produce the desired outcome that prompted the creation of the rule to begin with.
With all of the cost-benefit analysis tools that are at the disposal of regulatory agencies, why aren’t more of them turning their attention to the efficacy and outcomes of their rules? Why don’t the federal regulatory agencies research and keep tabs on this information? Being able to evaluate and learn about outcomes of a promulgated regulation would have a huge impact on the success and efficiency of all future regulations. These analyses would provide regulatory agencies with evidence-based findings that would inform their development of future regulations and updates to current rules. Furthermore, performing these sorts of analyses would allow for greater insights into the degree of success in enforcing these federal regulations.
Some federal agencies, like the EPA, are attempting to evaluate the effectiveness of their rules retrospectively, but their current processes to do this still fall short of what is needed. Recent analyses from groups like the OECD have conceptualized the process of systematic evaluation of regulatory performance review, but such analyses are not translating into meaningful regulatory policy change for Federal agencies.
The Regulatory Science and Engineering Center (RSEC) is currently conducting an in-depth study of the rule-making process across several Federal agencies and developing a framework for understanding the “regulatory science” of how regulations are made. As part of this study RSEC will begin to develop metrics for evaluation of regulation and its efficacy. Based on its current findings, RSEC recommends that federal regulatory agencies draw lessons from existing efforts to evaluate regulatory efficacy and develop a framework for evaluating and enforcing rules and regulations once they have been promulgated. It is only through a better understanding of the efficacy of regulation that we can improve the real-world impact of Federal agencies in pursuing their missions.