Use of Information by Agencies

Even with their regulatory powers, many agencies have more recently begun to engage in a practice that is sometimes derisively referred to as "regulation by information." Rather than regulate certain aspects of an industry directly—and thereby have to adhere to the requirements of the Administrative Procedure Act—some agencies simply publish information in a manner believed to be influential on industries. A commonly cited example of this practice is promulgation of the Toxics Release Inventory by the EPA. Industry and federal facilities are required to provide information to the EPA detailing releases of specific toxic substances and how they have been managed as wastes. This information is then maintained and published by the agency. While it had historically been published only in aggregate form, a more recent trend has been to publish it with the information tied directly to the reporting entities.

The rapid increases in the ability to disseminate information, particularly with the development of the Internet, have increased the impact of the availability of such data. The concern surrounding the Toxics Release Inventory among some industries is that its publication with the imprimatur of a federal agency is designed to embarrass them into taking actions that the agency has not required. In many instances, industries complain that exertion of this pressure seems improper because it is being applied without the agency having complied with the necessary procedures to impose regulation.

Of perhaps even more relevance to nanotechnology companies are technical determinations that are disseminated by agencies. The EPA provides another example in this area in the form of its Integrated Risk Information System. This is a database that describes the various effects that exposure to environmental substances can have on human health. The data reflect a consensus view of EPA scientists, but there are sometimes charges that the information is inaccurate or is based on scientifically defective studies.

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