Create an Interagency Regulatory Coordinating Group

Create an Interagency Regulatory Coordinating Group

Background

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.

OVERLAP EXISTS. 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]


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.

Endnotes

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).