Three Current Areas of My Regulatory Research Agenda: Others Working in These Areas?

Standards Organizations, Voluntary Standards and Incorporation by Reference in Regulations

1.   Standards Organizations and High Impact Harm Reduction Agendas

Most stakeholders have a reasonably good understanding of the role of Standards Organizations in producing technical (technology-based) standards for market access, reduction of trade barriers and safety. However, as Standards Organizations move further into medium to high impact harm reduction agendas (e.g., infrastructure resiliency in a climate-changed future), it becomes increasingly important to diversify their outputs and systematize their processes.

Why is this important? The sheer volume and complexity of harm reduction agendas in medium to high-impact areas, e.g., climate change mitigation and adaptation, can be expected to exceed the internal capacity of government regulatory departments and agencies in some areas. This capacity challenge is where Standards Organizations and their ability to mobilize private sector expertise becomes critically important.

To achieve this strategic objective, stakeholders, and regulators in particular, should be confident that Standards Organizations have a solid understanding of:

• the priority role of harm reduction in regulation, 
• how a conceptual categorization of harm reduction scenarios can help inform standards development priority setting, 
• the types of standards (technology-based, performance-based or process and procedural) that are best incorporated by reference under different harm reduction scenarios and, 
• implications for monitoring and performance review of standards to meet political and public expectations for harm reduction assurances.

2.   Ex-Ante Incorporation of Standards into Regulations

There needs to be much more exploration and analysis of the methods and processes for ex-ante incorporation of standards into regulations by reference, in addition to the current dominant paradigm of ex-post incorporation. Several studies have shown how ex-post incorporation of standards into regulations by reference has, in specific sectors, tended to be uncoordinated across governments creating market barriers, driving-up costs to industry and making performance review unclear concerning stated objectives. These issues could be very problematic when considering the medium to high-impact harm reduction agendas that will increasingly involve regulators and Standards Organizations working together.

In cases of unique harm reduction demands on regulators, ex-ante options could be an essential service provided by Standards Organizations beyond what they are already doing in this area, primarily regarding lower impact technical regulations. Regulators can request a standards organization to elaborate on the standards necessary to address a harm reduction objective, or part thereof, in advance. The result can be reducing the strains on insufficient internal capacities of regulators in some instances. On the other hand, the regulator can still set the harm reduction objectives and assess that the proposed standards can reasonably achieve them before application (i.e., guarding against risks of an inappropriate delegation of rule-making authority).

However, to make this a prominent option, procedures must be developed, systematized, and widely communicated to regulators. Accountability, transparency, high levels of consensus (that the standard can achieve the harm reduction objective in whole or in part), independence from special interests, and timeliness and efficiency will be critical factors.  

3.   Improving the Lifecycle Management of Performance-Based Standards

The demands of medium and high impact harm reduction regulations will increasingly call upon performance-based standards (outcome standards). The Federal Government's Regulatory Reform Agenda indicates this direction. However, federal government departments and agencies have come under significant criticism, including by the Auditor General's Office, regarding monitoring and performance review of performance-based standards.  

The tendency to favour performance-based standards and regulations presents at least two significant challenges for standards organizations regarding their relevance in growing harm reduction agendas: 

• how best to design performance-based standards that can contribute to the harm reduction agenda in medium to high impact regulatory areas and,
• how best to develop standards that respond to the challenges that regulators are already facing with monitoring and performance review of performance-based standards.  

In fact, despite enthusiasm for performance-based regulation, there is remarkably little empirical research to show how such regulations have performed in practice. Standards Organizations can begin to develop a line of work to address this gap.  

Monitoring and performance review of performance-based standards is a demanding work area, but governments need progress in this area given regulatory reform agendas. In some cases, such as measuring water pollution emissions, monitoring and performance review is relatively straightforward. However, several medium to high-impact harm reduction objectives can create significant methodological challenges when performance-based standards are used.  

Similarly, how do we assess the achievement of regulatory objectives overall as contrasted with individual regulated parties' compliance rates? This question is vitally important across several high-profile harm reduction agendas ranging from GHGs to chemicals regulations to public health regulations and beyond. It also speaks to the entire one-for-one and red tap rules around regulatory processes.