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Ellig Reg Analysis And Counteterrorism Sept  2006
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Ellig Reg Analysis And Counteterrorism Sept 2006

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  • 1. A Framework for Evaluating Counterterrorism Regulations Jerry Ellig Senior Research Fellow, Mercatus Center Amos Guiora Director, Institute for Global Security Law and Policy Case Western Reserve School of Law Kyle McKenzie Research Fellow, Mercatus Center
  • 2. What can an analytical framework do?
    • Regulatory analysis identifies cause and effect
    • Regulatory analysis cannot automate the decision
  • 3.  
  • 4. … Or, in Plain English:
    • Figure out what you’re trying to do and how you’ll know you did it
    • Figure out why government needs to do it
    • Figure out what level of government needs to do it
    • Think about different ways to do it and find the most effective one
    • Figure out what you have to give up to do whatever you’re trying to do
    • Weigh the pros and cons
  • 5. When to do the analysis?
    • Prospective: Compare a variety of alternatives that are intended to accomplish the same goal
    • Prospective: Assess a particular proposed regulation
    • Retrospective: Assess a set of regulations that are intended to accomplish the same goal(s)
  • 6. 1. Outcomes
    • Benefit to the public produced, or harm avoided, as a result of government action
    • Activities, outputs, expenditures, laws, programs, and regulations are not outcomes
    • Measure regulation’s effect on outcomes and verify causality
  • 7. 1. Identify the Desired Outcomes
    • Number of information analysis products
    • Number of information analysis community member organizations with which the Information Analysis and Infrastructure Protection (IAIP) Directorate is integrated
    • Development and support of a cyber security test bed
    • Percent of worldwide US destined containers processed through Container Security Initiative ports
    • Number of cyber security work products disseminated
    • Number of Researchers Supported
    Not Outcomes
  • 8. 1. Identify the desired outcomes
    • Maritime injury and fatality index (five-year moving average of maritime deaths and injuries)
    • Number of firefighter injuries and civilian deaths from fire
    • Percentage of Secret Service protectees who arrive and depart safely
    • Number of criminal and terrorist attacks initiated from aircraft where at least one air marshal was present
    Outcomes
  • 9. 2. Market failure: Voluntary action provides less security than people are willing to pay for
    • Public Goods
    • Externalities
    • Imperfect Information
    • Monopoly
    • Likely
    • Likely
    • Maybe
    • Unlikely
  • 10. 2. Assess evidence of market failure
    • “First, do no harm.”
    • But also: Understanding why there is a problem will lead to an effective solution
    • E.g., airline security and incentives facing airports
  • 11. 3. Identify the core federal role
    • What is the federal government’s “comparative advantage”?
    • When do states or localities have inadequate incentives to provide security?
    • Where does the federal govt. have better knowledge, and where do other levels have better knowledge?
  • 12. 3. Identify the core federal role
    • Evacuation plans (state)
    • Border security (federal)
  • 13. 4. Assess effectiveness of alternatives
    • Government action by government personnel
    • Command and control regulation
    • Performance-based regulation
    • Mandated information disclosure
    • Ex post liability
  • 14. What counts as an alternative?
    • Agencies often consider tweaks on same basic regulation
    • Congress often constrains agency flexibility
    • Decisionmaker (agency or Congress) has responsibility for doing the analysis
  • 15. 4. Assess effectiveness of alternative approaches
    • Pre – 9/11 Security contractors
    • Post – 9/11 Federalized screening
    • Post – 9/11 Screening contractor pilot programs
  • 16. 5. Costs
    • Federal expenditures
    • Non-federal expenditures
    • Price effects
      • Pass-through of costs
      • Deadweight loss
    • Quality effects
    • Behavioral changes
  • 17. 5. Identify Costs TSA Budget $4.3 billion (2005) Dead Weight Loss Increased Waiting Time Increased fatalities due to substitution from flying to driving $2.35 billion (2005) $2.76 billion (2005) 116 individuals (4 th Quarter 2002)
  • 18. 6. Compare costs with outcomes
    • Cost effectiveness
    • Cost-benefit
    • Breakeven
    • Note: None of these make the decision automatic!
  • 19. 6. Compare costs with outcomes
  • 20. Regulatory Analysis in Plain English
    • Figure out what you’re trying to do and how you’ll know you did it
    • Figure out why government needs to do it
    • Figure out what level of government needs to do it
    • Think about different ways to do it and find the most effective one
    • Figure out what you have to give up to do whatever you’re trying to do
    • Weigh the pros and cons