Regulatory reform is not easy to achieve even when everything seems in place—the law, a friendly Congress, and a friendly Administration.
A case in point is the EPA’s Federal Advisory Committee for the negotiated rulemaking on limiting the Chemical Data Reporting (CDR) requirements for recycled inorganic byproducts, as mandated by the recently revised Toxic Substances Control Act (TSCA).
The regulatory reform process, itself, matters. What seemed like a straight-forward task to develop a deregulatory proposal that EPA would use for a proposed rulemaking in the near future slid into an intractable stalemate within the Committee over a number of months. The following factors contributed to the stalemate:
- Committee members did not have equal interests in achieving the deregulatory outcome of the negotiated rulemaking.
- The CDR regulations are complex in their applicability to recycled inorganic byproducts.
- The diversity of recycled inorganic byproducts seeking regulatory relief prevented development of simple fix to the CDR regulations.
This is important because negotiated rulemakings like this one tend to have greater success in achieving their ostensible outcome—in this case, a proposed rule that reduces CDR requirements for recycled inorganic byproducts. Despite the Committee’s stalemate, EPA has latitude in developing a CDR proposal. While this TSCA negotiated rulemaking process could still produce a deregulatory outcome, this episode may be a sign of future difficulties in achieving regulatory reform.