Chapter 27: Performance-based Regulation
Peter J. May Performance-based regulation is predicated on the notions that regulation should focus on achievement of regulatory objectives and leave it to regulated entities to determine how best to achieve them. In emphasizing objectives, the performance-based approach differs from other regulatory approaches that are based on specification of technologies (technology-based regulation), processes (systems-based regulation), or prescribed means (prescriptive regulation). The performance-based approach has been widely adopted throughout the world to regulate air and water quality, building and fire safety, consumer product safety, food safety, forest practices, nuclear power plant safety, pipeline safety, public health, transportation safety, energy utilization, and worker safety (see Organisation for Economic Co-operation and Development 2002; Deighton-Smith 2008). Any depiction of performance-based regulation is complicated by the fact that the concept can be and has been applied in a variety of ways and with different degrees of regulatory comprehensiveness. As discussed by Coglianese et al. (2003), performancebased regulations differ with respect to the generality of the performance objective, the extent to which performance is quantified, and the mechanisms for monitoring or predicting performance. Regardless of the form it takes, performance-based regulation cannot be considered as separate from the broader regulatory system. Like other forms of regulation, performance-based regulation requires the setting of standards for compliance, establishing a monitoring and enforcement system, and applying sanctions when violations are detected. Given the variation in regulatory comprehensiveness and different methods for carrying out the implementation tasks, there is a large array of potential performance-based regulatory regimes. A variety of...
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