Developing a Domestic Framework for International Regulatory Cooperation

Abstract

Notwithstanding the rise of globalization in the last several decades, regulatory policymaking has largely remained balkanized, with each nation setting rules with little to no consideration of the approaches of key trading partners. In the last several years, this dynamic has begun to shift, as evidenced by Executive Order 13,609 on international regulatory cooperation and the commencement of negotiations on the Transatlantic Trade and Investment Partnership, an EU-U.S. free trade agreement that focuses largely on achieving enhanced regulatory convergence.

Despite the increasing attention paid to issues of regulatory convergence, there are few incentives for U.S. agencies to engage with foreign counterparts to remove unnecessary regulatory disparities that pose a barrier to trade. This article seeks to create a framework that would provide these incentives. Specifically, it proposes empowering members of the public (including individual citizens, businesses, and public interest organizations) to request that an agency justify existing regulatory differences. Such a challenge might require the agency to reassess the scientific basis for an existing rule and/or the decision that the public risk tolerance justifies regulating at a particular level of stringency. Over time, this process would likely lead to greater regulatory convergence while maintaining the important regulatory protections that have come to prevail in developed nations.

Keywords: international regulatory cooperation, risk assessment, risk management