A Proposed Framework for Evidence-Based Regulation

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by Marcus Peacock, Sofie E. Miller, & Daniel R. Pérez
February 22, 2018

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Abstract

The systematic application of evidence-based approaches to improve policymaking has received serious treatment by both scholars and policymakers, but its successful implementation to improve regulatory outcomes requires a separate framework. Regulation is a distinct subset of federal policymaking that must be evaluated differently from other policy areas—particularly considering that many of the existing recommendations to improve the use of evidence are undesirable, or even illegal, when applied to the rulemaking process. Because evidence-based recommendations need to be tailored to the context of regulatory agencies, we propose the use of an Evidence-Based Regulation (EBR) framework. An EBR process plans for, collects, and uses evidence throughout the life a regulation to predict, evaluate, and improve outcomes.

This paper begins by detailing how the regulatory process differs from other federal policymaking and establishes our EBR framework. We proceed by discussing the main barriers that regulatory agencies face in implementing an EBR approach: 1) agency noncompliance with internal administrative requirements, 2) inadequate funding for evaluation of the outcomes of regulation, and 3) the complex nature of using data to build evidence. We also advance concrete proposals for overcoming these barriers; our policy prescriptions for implementing EBR balance stricter oversight with increased flexibility for regulatory agencies.

A Framework for Evidence-Based Regulation

Regulators should be able to demonstrate they are benefitting peoples’ lives by creating policies that address a “compelling public need,” as directed by Executive Order 12,866. Increasing the use of evidence within the rulemaking process will make agencies smarter, improve regulatory decisions, and, ultimately, result in better outcomes for society. Recognizing this, we offer the following integrated framework describing a system that produces evidence-based regulation (EBR) (see box below). An EBR process plans for, collects, and uses evidence throughout the life of a regulation to predict, evaluate, and improve outcomes.

The framework is structured around the three main phases of regulating: design, decision-making, and retrospective review. It creates a feedback loop (through retrospective review) during implementation of the rule so that data are not only used in developing the regulation but also in periodically reassessing its value and modifying the rule as appropriate. Notably, this framework incorporates important and current requirements of the federal rulemaking process pertinent to the collection and use of data.

Evidence-Based Regulation Framework

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