I was invited to be the opening speaker at the 2013 Policies and Practices Conference of the American Council of Independent Laboratories (ACIL), held in Arlington, VA, on March 20. The topic of the presentation was ACUS Recommendation 2012-7, “Agency Use of Third-Party Programs to Assess Regulatory Compliance.” ACIL’s website describes the organization as a trade association representing independent, commercial scientific and engineering firms engaged in testing, product certification, and other technical areas.
The ACUS recommendation was based on a study of several existing federal regulatory programs that make use of non-governmental entities to assess whether various products and processes are in compliance with regulatory standards and other requirements. For example, third parties have a role in testing the safety of imported food, children’s products, medical devices, cell phones and other telecommunications equipment, and electrical equipment used in workplaces. Third parties also ensure that products labeled as organic, energy-efficient, or water-efficient meet applicable federal standards. The term “conformity assessment” is frequently used for such activities.
In some areas of regulation, Congress has directed federal agencies to develop a third-party program. In others, agencies have decided to do so under existing statutory authority. A key reason that federal regulatory programs incorporate use of third parties is to leverage private resources and expertise in ways that make regulation more effective and less costly. The ACUS recommendation identifies a number of considerations that should be taken into account when Congress or an agency is deciding whether to develop a third-party program to assess regulatory compliance. It also offers guidance on issues that should be considered when actually establishing a third-party program. For example, there must be appropriate government and public access to information about program operations. Also, the program must provide procedures for appropriate agency oversight to ensure that the third-party program fulfills its regulatory purpose.
In addition to exploring the issues addressed in the ACUS recommendation, I briefly described the Administrative Conference’s open, public process for developing its recommendations. ACIL members expressed an interest in ways they might make the guidance contained in the recommendation more widely known, so I encouraged them to share the recommendation with their agency contacts or representatives if they thought it would be helpful.