Environmental Risk and Cost-Benefit Analysis: A Review of Proposed Legislative Mandates, 1993-1998
Congressional research reportJan 22, 1999
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Environmental Risk and Cost-Benefit Analysis:
A Review of Proposed Legislative Mandates,
1993-1998
January 22, 1999
Linda-Jo Schierow
Specialist in Environmental Policy
Environment and Natural Resources Policy Division
Congressional Research Service ˜ The Library of Congress
ABSTRACT
Between 1993 and 1998 Congress considered many proposals that aimed to increase or
improve the use of risk analysis by federal agencies, especially in developing environmental
rules. This report describes differences and similarities among selected provisions of key
proposals: Senate-passed Johnston amendments to S. 171 and S. 2019 in the 103rd Congress;
S. 343, as reported by the Committee on the Judiciary, in the 104th Congress; House-passed
H.R. 9 in the 104th Congress; S. 981, as reported by the Committee on Governmental Affairs,
in the 105th Congress, and S. 1728, as introduced, in the 105th Congress. This report will not
be updated. Issues related to EPA's use of risk analysis are analyzed in CRS Report 98-618,
Environmental Risk Analysis: A Review of Public Policy Issues. For current information
about legislation, see CRS Issue Brief 94036, The Role of Risk Analysis and Risk
Management in Environmental Protection. For a broader look at regulatory reform
initiatives targeting environmental regulations, see CRS Report 96-949, Environmental
Reauthorizations and Regulatory Reform: From the 104th Congress to the 106th.
Environmental Risk and Cost-Benefit Analysis:
A Review of Proposed Legislative Mandates, 1993-1998
Summary
Between 1993 and 1998 Congress considered many different proposals that
aimed to increase or improve the use of risk analysis and cost-benefit analysis by
federal agencies, especially in developing environmental rules. Key proposals include:
the Senate-approved Johnston amendments to S. 171, a bill to confer cabinet-level
status on the Environmental Protection Agency (EPA), and to S. 2019, a bill to
reauthorize the Safe Drinking Water Act, in the 103rd Congress; S. 343, as reported
by the Committee on the Judiciary, in the 104th Congress; Divisions C and D of H.R.
9, as passed by the House, in the 104th Congress; S. 981, as reported by the
Committee on Governmental Affairs, in the 105th Congress; and S. 1728, as
introduced, in the 105th Congress.
From the 103rd to the 105th Congress, proposals broadened in scope to
encompass more federal agencies and more kinds of agency activities. At the same
time, recent proposals apply to a smaller fraction of promulgated rules that are
“major,” rather than to all final rules. All highlighted proposals mandate risk analysis
when environmental regulations are promulgated, and the specificity of proposed
requirements grew in each Congress. Similarly, all the highlighted bills, with one
exception, mandate analysis of the costs and benefits of some new rules, and these
requirements have been elaborated in each consecutive Congress.
Most of the six highlighted bills would have established economic criteria for
evaluating and choosing among regulatory options. Four of the six bills would have
directed agencies to promulgate cost-effective rules. Four bills also would have
advised or required that benefits of a rule should justify its cost. Other proposed
criteria included: flexibility to regulated entities and governments, net benefits,
incremental costs and benefits, and costs. However, only the bills of the 104th
Congress explicitly would have prohibited promulgation of a rule unless economic
criteria were met.
Three of the highlighted proposals would have directed the executive branch to
coordinate and oversee regulatory analyses by agencies, but limited the time for
review and required public disclosure of relevant communications with the regulatory
agency and others outside of the federal government. Two of these bills also would
have required peer review to ensure the quality of agencies’ analytic work. All
highlighted Senate bills in the 104th and 105th Congresses would have suspended
deadlines to facilitate agency compliance with analytic requirements for rules. Most
of those bills would have required agencies to review existing major rules, as well as
newly promulgated rules. Other provisions of bills in the 104th Congress that would
have authorized citizen petitions and judicial review or required risk-based budgeting
were eliminated or modified in bills of the 105th Congress.
Proposed mandates for risk analysis and cost-benefit analysis of environmental
rules became more complex after the 103rd Congress, as they included more
exceptions and caveats for analytic requirements and decision rules, as well as more
mechanisms to ensure the quality of analyses.
Contents
Introduction . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1
Key Legislative Proposals . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 2
103rd Congress . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 2
104th Congress . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 3
105th Congress . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 3
Comparison of Selected Provisions . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 4
Applicability . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 4
Analytic Requirements . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 5
Regulatory Decision Criteria . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 6
Effect on Existing Law . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 7
Coordination and Quality Control . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 8
Executive Oversight . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 8
Peer Review . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 8
Other Provisions . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 8
Deadlines . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 9
Review of Rules . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 9
Citizen Petitions . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 9
Judicial Review . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 9
Risk-Based Priorities . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 9
Conclusion . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 10
List of Tables
Table 1. Decision Criteria Employed by Key Proposals in the 103rd, 104th, and 105th
Congresses
......................................................... 7
Table 2. Cost-Benefit Analysis in the 103rd, 104th, and 105th Congresses . . . . . 11
Environmental Risk and Cost-Benefit Analysis:
A Review of Proposed Legislative Mandates,
1993-1998
Introduction
The 103rd, 104th, and 105th Congresses considered whether to require risk
analysis of environmental regulatory proposals by the U.S. Environmental Protection
Agency (EPA) and other agencies. The House and Senate each approved at least one
such proposal (see below). But, so far no Congress has enacted a requirement for
risk analysis that would change the way all environmental (or health and safety)
regulations are developed. It is not clear whether any comprehensive requirement for
risk analysis of environmental regulations will be considered by the 106th Congress.
Some believe that more recently evolved proposals lack most of the provisions that
historically have been stumbling blocks to passage, and they see a gathering
momentum for a legislative mandate. Others see waning congressional interest.
1
At some point, however, Congress is expected to debate again an overarching
mandate for risk analysis of environmental regulations. Many believe that
environmental programs could be more efficient and flexible, and less costly to the
regulated community, if EPA considered the results of risk analysis. Others disagree,
arguing that such analyses use scarce agency resources, delay rulemaking, and force
decisions to conform to the analytic results, regardless of the quality of underlying
data and models. The issues and legislative options surrounding the use of risk
analysis at EPA are described and analyzed in CRS Report 98-618, Environmental
Risk Analysis: A Review of Public Policy Issues.
Proposed mandates for risk analysis must be considered in the context of
existing and perhaps past mandates, as well as agencies’ practices. Executive orders,
environmental statutes, and other provisions of law authorizing, mandating, or
constraining EPA’s use of risk analysis are discussed in CRS Report 98-619, Risk
Analysis: Background on Environmental Protection Agency Mandates.
1
“Environmental risk analysis” refers to any quantitative or qualitative scientific
description of an environmental hazard, the potential adverse effects of exposure, the risks of
these effects, events and conditions that may lead to or modify adverse effects, populations
or environments that influence or experience adverse effects, and uncertainties with regard to
any of these factors. For a more detailed definition, see the Appendix to CRS Report 98-618,
Environmental Risk Analysis: A Review of Public Policy Issues.
CRS-2
This report describes and compares selected provisions related to risk analysis
in key legislative proposals introduced from the 103rd through the 105th Congresses,
including:
! the Johnston amendments to S. 171, a bill to confer cabinet-level status on the
Environmental Protection Agency (EPA), and to S. 2019, a bill to reauthorize
the Safe Drinking Water Act, both as passed by the Senate in the 103rd
Congress;
! S. 343, as reported by the Committee on the Judiciary, in the 104th Congress;
! Divisions C and D of H.R. 9, as passed by the House, in the 104th Congress;
! S. 981, as reported by the Committee on Governmental Affairs, in the 105th
Congress, and
! S. 1728, as introduced, in the 105th Congress.
The comparison emphasizes differences among provisions related to risk analysis and
cost-benefit analysis and mechanisms such as judicial review or peer review that make
agencies more accountable for the quality of such analyses.
This report focuses on the general provisions of highlighted sections of bills
that are large and complex; specific provisions that modify the general requirements
of the highlighted sections may be omitted.
Key Legislative Proposals
103rd Congress
More than a dozen bills and amendments on environmental risk analysis were
introduced in the 103rd Congress. One, P.L. 103-354, was enacted, but it applied
only to the Department of Agriculture. Nine other bills were passed by one chamber
or reported by the committees of jurisdiction.
Arguably, the most influential risk proposals in the 103rd Congress were two
amendments offered by Senator J. Bennett Johnston. The original “Johnston
amendment” was the first risk legislation debated on the Senate floor, and it was
adopted on April 29, 1993, by a vote of 95 to 3. The amendment was incorporated
as Section 123 in S. 171, a bill to raise the U.S. Environmental Protection Agency
(EPA) to department (cabinet) status. In the House, a proposal to similarly amend
a bill to elevate EPA to the cabinet (H.R. 3425) was unsuccessful, however. The rule
for consideration of the reported House bill was defeated on the floor, reportedly in
part because the rule would have prevented introduction of non-germane
amendments, such as one on risk and cost-benefit analysis.
During the second session of the 103rd Congress, Senator Johnston addressed
some of the key concerns of Members when he introduced a revised version of his
amendment. It was adopted by the Senate during the May 18, 1994 floor debate on
Senate-passed S. 2019, a bill to amend and reauthorize the Safe Drinking Water Act.
The amendment became Section 18 of the Senate-passed bill. Section 15, S. 2019,
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as passed by the Senate, also included a revised version of a bill originally introduced
by Senator Moynihan (S. 110) that would have required EPA to rank pollution
sources based on risk. These bills did not receive House action.
104th Congress
Three risk-related bills were reported to the Senate in the 104th Congress (S.
291, S. 333, and S. 343). In June, 1995, they were merged and introduced on the
Senate floor by Senator Dole as a substitute amendment for S. 343, as reported by the
Committee on the Judiciary. After two weeks of debate and three failed votes to
invoke cloture, the Senate turned to other issues. The reported bill (also known as
the Dole bill), rather than the substitute amendment, is summarized in this report.
The House Republican Contract with America promised that within the first
100 days of the 104th Congress risk legislation would be introduced, debated, and
voted upon in the House. Title III of the “Job Creation and Wage Enhancement Act
of 1995" (JCWEA), one of the draft bills distributed with the House Republican
contract, appeared to integrate several of the proposals related to risk analysis that
saw action in the 103rd Congress, including a slightly modified version of the original
Johnston amendment, with coverage expanded beyond EPA to include all federal
agencies that promulgate regulations concerning human health and safety or the
environment. The House amended and passed these provisions in H.R. 9 on March
3, 1995.
H.R. 9, as passed by the House, contained four divisions, A through D. Each
division contained the text of a bill that had passed the House prior to consideration
of H.R. 9. Division C and Division D had provisions related to risk analysis. Division
C contained the text of H.R. 926, the Regulatory Reform and Relief Act, while
Division D had the text of H.R. 1022, the Risk Assessment and Cost-Benefit Act of
1995. The Senate did not act on H.R. 9.
Although the 104th Congress adjourned without enacting comprehensive
requirements for risk analysis, Congress did enact risk-based provisions included in
major legislation addressing drinking water (P.L. 104-182) and food safety (P.L. 104170), as well as requirements for economic analysis, which for environmental
regulations requires some analysis of risks as a basis for calculating risk reduction
benefits (P.L. 104-4; P.L. 104-121, Title II). None of these mandates for risk analysis
is compared in this report.
105th Congress
The 105th Congress considered various proposals that would have mandated
analysis of environmental risks, but adjourned without enacting comprehensive
regulatory reform legislation or other provisions that would have increased use of risk
analysis by EPA. The most comprehensive bill, S. 981, as reported by the Senate
Committee on Governmental Affairs, had bipartisan support (S. Rept. 105-188), but
also faced significant opposition. The Senate Committee on Governmental Affairs
reported S. 981, the Regulatory Improvement Act of 1998, amended, on May 11,
1998, but the bill received no floor action. The Majority Leader introduced a risk-
CRS-4
only version of S. 981, S. 1728, that would have applied only to proposed and final
regulations to protect health, safety, or the environment with a potential annual cost
to the economy of $100 million or more.
Comparison of Selected Provisions
In general, bills mandating risk analysis have become more complex and
detailed since 1993. Table 2 summarizes selected provisions of key bills in the 103rd,
104th, and 105th Congresses, beginning on page 11
Applicability
From the 103rd Congress to the 104th Congress, proposed mandates for risk
analysis in the federal government have broadened in scope to encompass more
agencies. The Johnston amendments would have mandated risk analysis only by EPA,
while proposals in the 104th Congress would have targeted all federal agencies,
including the independent boards and commissions which, unlike other federal
agencies, have never been required by executive order to perform risk analysis or
economic analysis for proposed or final rules.2
It is not clear whether bills in the 105th Congress would have required more
or fewer risk analyses and economic analyses by individual agencies than those in the
104th Congress. The Johnston amendment to S. 171 would have applied only to final
rules that related to human health and safety or the environment, while later legislation
would have mandated analysis of proposed as well as final rules, and (with the
exception of S. 1728 in the 105th Congress) would have covered rules for any
regulatory purpose.3
Moreover, although the proposed bills generally would have affected all
substantive rulemaking (that is, rule development for all rules covered by the notice
and comment requirements of the Administrative Procedure Act), some proposals in
the 104th and 105th Congresses would have affected additional activities. For example,
under S. 343, risk analyses not connected with rulemaking would have been affected
as well as interpretive rules or rules of agency organization, procedure, or practice,
if they had altered or created rights or obligations of persons. Similarly, S. 981 would
have affected risk characterizations in risk assessment documents and agency
decisions, as well as regulatory proposals.4 S. 1728 would have required analyses
when a significant substitution risk resulted from promulgation of a rule.
2
President Reagan issued the first explicit mandate for regulatory risk analysis in
January 1985. For more information about the requirements of executive orders, see CRS
Report 98-619, Risk Analysis: Background on Environmental Protection Agency Mandates.
3
S. 1728, like the Johnston amendment to S. 171 in the 103rd Congress, targets only
rules for which the primary purpose is to address health, safety, or environmental risks.
4
“Risk characterization” is the final step in a risk analysis, which summarizes scientific
judgments about the existence and overall magnitude (that is, the incidence) of adverse effects,
given specified levels of exposure to a hazard.
CRS-5
Proposals in the 104th and 105th Congresses would have applied only to rules
with a “major” or “significant” impact on the economy, health, the environment, or
public policy. In contrast, the Johnston amendment to S. 171 in the 103rd Congress
applied regardless of the impact of a rule. Under the Johnston amendment to Senatepassed S. 2019, analysis would be required only for rules with an annual effect on the
economy of $100 million or more. In the 104th Congress, S. 343 and H.R. 9 Division
C would have applied to rules with an estimated cost of $50 million or more in a year,
while H.R. 9 Division D would have affected rules likely to cost $25 million or more.
In the 105th Congress, both S. 981, as reported, and S. 1728, as introduced, would
have applied to rules likely to have a gross annual cost of $100 million or more.
Definitions of “major rules” and “significant risk assessments” also varied in
the amount of discretion they would have provided to the Office of Management and
Budget (OMB) to designate rules as major or non-major. Rules likely to result in
major increases in costs or prices or significant adverse effects on economic activity
could have been designated as major under any of the legislative proposals in the 104th
and 105th Congresses.5 The Senate bills during this period also would have authorized
designation of a rule as major due to its effects on health, safety, or the environment.
S. 981 would have given OMB the authority to require a risk analysis to comply with
proposed requirements.
All of the proposed mandates, except the Johnston amendments, authorized
exemptions for certain types of rules. For example, S. 343, H.R. 9 Divisions C and
D, S. 981, and S. 1728 would have provided for emergencies, while S. 343, H.R. 9
Division D, and S. 981 would have exempted from risk analysis requirements rules
approving product labels (e.g., for pharmaceutical drugs). S. 171 and S. 2019 would
have required EPA to perform the analyses or to report the reasons for
noncompliance in the Federal Register and to Congress.
Analytic Requirements
All of the proposals would have required agencies to analyze risks when they
are developing rules, generally before the risk is addressed by the regulation, relative
to other risks that could be addressed, and after a risk is managed under the rule to
estimate the incremental amount of risk reduction that might be achieved. For
example, the Johnston amendment to S. 171 would have required analyses of:
! risks to individuals addressed by the regulation;
! the health and environmental effects of the regulation; and
! risks addressed compared to other risks.
S. 2019 added a requirement to analyze risks to “significant subpopulations
disproportionately exposed or particularly sensitive.” It also explicitly required
qualitative analysis as well as quantitative analysis of risks.
5
The language used to define a “major rule” is precise and meaningful. Note that the
number of rules with an “effect on the national economy” of a certain monetary value is likely
to be much greater than the number of rules with a “cost” of equal value.
CRS-6
H.R. 9 and S. 343, as reported in the 104th Congress, would have included
requirements to analyze uncertainties, assumptions, the distribution of risk in a
population (that is, who is at risk), substitution risks (risks resulting from regulation),
and the likelihood that exposure to risks would occur. All these analytic requirements
were included in S. 981 (105th Congress).
Beginning in the 104th Congress, proposals specified certain principles of risk
analysis to which covered agency analyses and presentations of results would be
required to conform. The bills proposed various means of estimating and then
expressing risk: in the 104th Congress, agencies would have been directed to use
“plausible” or “unbiased” models and to present a “best estimate”; S. 981 would have
mandated a “weight of scientific evidence” approach and expression of a central and
high end risk estimate; and S. 1728 would have required public input and statement
of the “most plausible” risk estimates.
Analysis of costs and benefits would have been mandated by all the highlighted
bills (except the bill introduced by Senator Lott late in the 105th Congress), but the
bills differed in how they would have directed agencies to relate costs and benefits.6
Both versions of the Johnston amendments (103rd Congress) and S. 343 (104th
Congress) would have required consideration of whether benefits would justify costs.
S. 343 and S. 981 (105th Congress) would have mandated analysis of net benefits
explicitly. S. 2019 and S. 981 in the 105th Congress also would have required a costeffectiveness analysis.
Additional elements of economic analysis were added to bills in the 104th
Congress. Both S. 343 and H.R. 9 would have required analysis of the distribution
of costs and benefits, incremental costs and benefits, effects on small businesses, and
the cumulative cost to the regulated community and comparison of all these measures
for all specified alternatives to the proposed or final rule. S. 343, but not H.R. 9,
would have directed EPA to assess net benefits, net costs, and net effects on small
businesses. H.R. 9 would have mandated analysis of whether benefits would exceed
costs.
S. 981, in the 105th Congress, would have added requirements to analyze the
feasibility of using market-based mechanisms, the flexibility provided to local and state
governments and the regulated community, and the quality of information. S. 981,
like S. 343 before it, specified certain principles of economic analysis.
Regulatory Decision Criteria
Except for S. 1728 (105th Congress), all of the highlighted bills would have
established criteria for evaluating and choosing among regulatory options, based on
analytic results. Excluding S. 1728, the bills would have established economic criteria
which are summarized in Table 1. Both Johnston amendments, S. 343, and S. 981
would have directed EPA to consider whether benefits would justify costs. The
6
The Unfunded Mandates Reform Act (P.L. 104-4) requires federal agencies to analyze
costs and benefits of all proposed and final rules with an expected cost of $100 million or
more.
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Johnston amendment to S. 2019 also would have required a rule to be most costeffective. S. 343 would have required a rule to be most cost-effective or least-cost.
S. 981 would have required a determination as to whether the rule was most costeffective or provided the greatest net benefits. Finally, H.R. 9 would have mandated
rules that were most cost-effective or provided more flexibility and that had
incremental benefits likely to justify and be reasonably related to the incremental
costs.7
Table 1. Decision Criteria Employed by Key Proposals in the 103rd,
104th, and 105th Congresses
Decision Criteria
S. 171
S. 2019
S. 343
Benefits justify costs
X
X
X
X
X
Most cost-effective
Least cost
H.R.
9
S. 981
S. 1728
X
X
X
X
Greatest net benefits
X
Flexible
X
Incremental costs —
incremental benefits
X
Effect on Existing Law
Arguably, the highlighted bills of the 103rd and 105th Congresses would not
have superseded other provisions of federal law, such as the Clean Air Act or the
Safe Drinking Water Act, with regard to how EPA should weigh costs and risks in
developing regulations. Neither would they have authorized EPA to employ riskbased or economic criteria when implementing other statutes, some argued.
Nevertheless, this apparent neutrality with respect to existing law was made more
explicit, as time passed: the amendment to S. 2019 was more explicit than that to S.
171; and in the 105th Congress, S. 981 provided still greater assurance that its
requirements would apply only to the extent that they were not inconsistent with
existing statutes. However, the neutrality of proposed requirements relative to
existing statutory requirements never was stated absolutely clearly, according to some
observers. S. 1728 would not have established decision criteria, so its analytic
requirements apparently would not have conflicted with existing legal requirements.
In contrast, S. 343 explicitly would have prohibited promulgation of a rule
unless decision criteria were met (that is, benefits justified costs, and the rule was the
7
The Unfunded Mandates Reform Act (P.L. 104-4) enacted by the 104 thCongress
requires federal agencies, except for independent regulatory boards and commissions, to
promulgate the alternative that is least costly, most cost-effective, or least burdensome, or to
explain why such an alternative was not adopted.
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most cost-effective or least-cost alternative). Similarly, H.R. 9 Division D would
have superseded provisions of existing laws and prohibited promulgation of a major
rule, unless incremental benefits were likely to justify and be reasonably related to the
incremental costs, and alternatives were either less cost-effective or provided less
flexibility to regulated entities or local or state governments.
Coordination and Quality Control
Executive Oversight. OMB has been overseeing cost-benefit analyses of
regulations under the authority of executive orders since President Reagan issued
Executive Order 12291 in 1981. In contrast, OMB has no clear authority to oversee
risk analyses, except to the extent that they underlie benefit analyses for regulations
under review.
Three of the bills highlighted in this report (S. 343, H.R. 9, and S. 981) would
have authorized executive branch oversight of agencies’ regulatory analyses and
mandated issuance of guidance for the conduct of economic and risk analyses. Two
(H.R. 9 and S. 981) would have assigned these tasks to OMB. Only economic
analyses of regulations would have been reviewed under H.R. 9, but OMB would
have been required to approve or comment on a final cost-benefit analysis prior to
promulgation of a major rule. S. 981 would have authorized OMB oversight for risk
assessments and peer review, as well as economic analyses. H.R. 9 would have
required OMB to evaluate federal agencies’ rulemaking procedures, while S. 981
would have directed OMB to evaluate agencies’ cost-benefit and risk analyses
periodically.
As a check on the new statutory authority of OMB to oversee regulatory
proposals, S. 981 and H.R. 9 would have limited the time for OMB review to 90 days,
while S. 343 permitted only 30 days, but all three bills would have allowed the period
to be extended. In addition, S. 981 would have required public disclosure of any
changes to regulatory proposals that resulted from the review, and a written record
of relevant contacts OMB had with the regulatory agency and persons outside the
executive branch. H.R. 9 also required a written record of relevant contacts made
with persons outside the agency.
Peer Review. Peer review was another mechanism proposed to ensure the
quality of agencies’ analytic work and the scientific soundness of decisions. S. 343
in the 104th Congress, relied most heavily on peer review, as it would have required
peer review of agencies’ analyses for major new rules, reviews of analyses for
existing rules, risk estimates supporting database entries, and clean-up plans for
hazardous waste sites. Also in the 104th Congress, H.R. 9 would have required peer
review of analyses for major rules worth at least $100 million and of other analyses
designated by OMB. In the 105th Congress, S. 981 would have required peer review
only for major rules. Neither the Johnston amendments in the 103rd Congress nor S.
1728 in the 105th had any provision regarding peer review or oversight by the
executive branch of government.
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Other Provisions
Deadlines. Statutory and judicial deadlines for promulgation of rules were
treated in various ways by the bills of interest. The original Johnston amendment was
silent on the subject of deadlines. Risk analysis requirements imposed by the Johnston
amendment to S. 2019 and H.R. 9 would have been waived or deferred when there
was a conflicting statutory or judicial deadline. In contrast, S. 343, S. 981, and S.
1728 would have suspended deadlines to allow compliance with requirements for
regulatory analysis.
Review of Rules. Only S. 343, H.R. 9, and S. 981 would have required
agencies to review existing major rules. Under S. 343, all existing rules would have
terminated in 7 years unless they were reviewed by the administering agency.
Citizen Petitions. Bills in the 104th Congress would have authorized citizen
petitions for judicial review of agency compliance with analytic requirements. In
addition, S. 343 would have provided broad authority for citizen petitions to force
agencies to examine and redesign rules so that they conformed to decision criteria.
Bills in the 103rd and 105th Congresses did not provide for citizen petitions.
Judicial Review. Proposals differed widely in their treatment of judicial
review. The Johnston amendments in the 103rd Congress would not have subjected
either the compliance of agencies with analytic requirements nor the analyses
themselves to judicial review.
In the 104th Congress, S. 343, as reported, would have subjected all agency
decisions regarding rules, orders, petitions, licenses, sanctions, or relief to judicial
review, and it would have established a new set of standards for judicial review,
including that there is “substantial support in the rulemaking file for the factual basis
of agency actions.” H.R. 9 Division D would have directed courts to consider agency
actions unlawful solely on the basis of a significant risk characterization or risk
analysis in the rulemaking record that did not substantially comply with the proposed
requirements.
In the 105th Congress, S. 981, as reported, would have permitted review of
agency compliance with analytic requirements only in connection with review of a
final agency action. S. 1728 also would have subjected to judicial review agency
decisions about which rules are major, and agency risk analyses in connection with
review of a final agency action. Both bills in the 105th Congress would have required
only that the rule not be arbitrary or capricious or an abuse of discretion (or
unsupported by substantial evidence where that standard otherwise was provided by
law), that the agency performed requisite analyses, and (under S. 1728), that
designation of a rule not be “clearly and convincingly” erroneous.
Risk-Based Priorities. Several of the highlighted bills would have promoted
use of analytic results to prioritize regulatory efforts within agencies: S. 343 would
have required agencies to reflect risk-based priorities in annual budget requests; H.R.
9 would have required that relative risks and cost-effective risk reduction strategies
be identified within regulatory programs; and S. 981 would have required agencies to
inform annual budgets and strategic plans and performance plans with the results of
CRS-10
a study by a scientific institution of relative risks and strategies for reducing them. S.
1728 in the 105th Congress had no comparable provision, and the Johnston
amendments in the 103rd Congress did not mention the setting of priorities.8
Conclusion
A comparison of selected provisions of key legislative proposals mandating
risk analysis and cost-benefit analysis of environmental regulations indicates that
proposals broadened in scope to encompass more federal agencies and more kinds of
agency activities. At the same time, the more recent proposals apply to a smaller
fraction of promulgated rules that are “major,” often defined as a rule with an annual
cost of at least $100 million.
Most of the highlighted bills would have required economic analysis, as well
as risk analysis, and would have established economic criteria for choosing among
regulatory options. The preferred option typically was the most cost-effective
alternative and one that would have produced benefits justifying costs. Such
requirements became more specific and increased in number between 1993 and 1998.
Proposals also became more complex as legislators tried to ensure that
unintended adverse consequences of an overarching mandate (e.g., delayed
rulemaking in emergencies) would be avoided. Thus, each Congress considered more
exceptions and caveats for analytic requirements and decision rules. At the same time
(perhaps to compensate), proposals included more mechanisms to ensure the quality
of analyses. Compared to key proposals in the 104th Congress, the more
comprehensive proposal in the 105th Congress, S. 981, as reported, would have
reduced reliance on judicial review while leaning more heavily on peer review and
executive oversight of analyses. Executive branch reviews of agencies' rules generally
would have been limited to 90 days and the substance of communications between
OMB and the regulatory agency or between OMB and anyone outside of government
about rules under review would have had to be disclosed to the public.
8
However, S. 2019 Section 15 would require a report of the relative risk of various
sources of pollution and of the costs and benefits of risk reduction strategies.
CRS-11
Table 2. Cost-Benefit Analysis in the 103rd, 104th, and 105th Congresses9
Provision
103rd Congress
Johnston Amendments,
as passed by the Senate
104th Congress
S. 343, as reported by
the Judiciary Committee
104th Congress
H.R. 9, as passed by the
House
Affected Agencies
U.S. Environmental
Protection Agency (EPA)
All federal agencies
Rulemaking: All federal
agencies
105th Congress
S. 981, as reported
All federal agencies
105th Congress
S. 1728, as introduced
All federal agencies
Risk analysis: EPA,
ACOE, CPSC, DOE,
DOI, DOT, FDA, MSHA,
NOAA, NRC, OSHA,
USDA, and other agencies designated by OMB10
9
10
Because the report omits specific provisions that modify general requirements of the highlighted sections, reference to the bills themselves is advisable.
The affected agencies are: Environmental Protection Agency (EPA), Army Corps of Engineers (ACOE), Consumer Product Safety Commission (CPSC), Department of Energy
(DOE), Department of Interior (DOI), Department of Transportation (DOT), Food and Drug Administration (FDA), Mine Safety and Health Administration (MSHA), National
Oceanographic and Atmospheric Administration (NOAA), Nuclear Regulatory Commission (NRC), Occupational Safety and Health Administration (OSHA), United States Department
of Agriculture (USDA), and other agencies designated by the Office of Management and Budget (OMB).
CRS-12
Provision
103rd Congress
Johnston Amendments,
as passed by the Senate
104th Congress
S. 343, as reported by
the Judiciary Committee
104th Congress
H.R. 9, as passed by the
House
105th Congress
S. 981, as reported
105th Congress
S. 1728, as introduced
Rules and Other
Products or
Activities Affected
S. 171 — Final rules
relating to human health
and safety or the
environment
Varies section by section.,
but generally applies to all
generally applicable rules,
including substantive
rules11; interpretive rules
or rules of agency organization, procedure, or
practice that alter or create
rights or obligations of
persons outside the
agency; and rules pertaining to agency acquisition, management, or disposal of property or services if not by GSA
procedures; excepts rules
pertaining to military or
foreign affairs
Division C —
Substantive rules,
excluding rules issued in
an emergency, under a
deadline, or to implement
tax laws or international
sanctions
Substantive rules, excluding
rules required to be issued
annually; authorizing
introduction into commerce
of food, drugs, or cosmetics;
issued by the Federal
Election Commission or in
some cases by the Federal
Communications
Commission; or affecting
tax, monetary policy,
security brokers and
dealers, or bank safety or
soundness
Substantive rules the
primary purpose of which
is to address health,
safety, or environmental
risks; excludes the same
rules excluded by S. 981,
except does not exclude
rules authorizing
introduction into
commerce of food, drugs,
or cosmetics
S. 2019 — Proposed and
final major rules relating
to human health or the
environment
11
Division D — Generally
applicable rules,
including substantive
rules; excepts rules
issued in an emergency,
approving food, drug or
other product labels,
approving state programs,
or relating to military
readiness, health
insurance, or medical
services
Economic analyses of new
major rules
Risk analyses for major
rules relating to human
health or the environment
and for rules that result in
a significant substitution
risk
Substantive rules are those rules for which agencies are required to provide public notice of rulemaking and opportunity for public comment under the Administrative
Procedure Act (5 U.S.C. 553). They exclude rules pertaining to military or foreign affairs, agency management or personnel or to public property, loans, grants, benefits, or
contracts. Except when notice and comment is otherwise required by law, this category also excludes interpretative rules, general statements of policy, rules of agency
organization, procedure, or practice, and rules for which the agency finds for good cause that notice and public comment procedures are impracticable, unnecessary, or contrary
to the public interest.
CRS-13
Provision
Affected Activities
(cont.)
103rd Congress
Johnston Amendments,
as passed by the Senate
104th Congress
S. 343, as reported by
the Judiciary Committee
104th Congress
H.R. 9, as passed by the
House
105th Congress
S. 981, as reported
Policy statements that
alter or create rights or
obligations of persons
outside the agency
Risk analyses and
communications in
support of
“significant” risk
documents
Risk analyses in
connection with
major rules
addressing health,
safety, or
environmental risks,
and other risk
analyses designated
by OMB;12 excepts
analyses for emergencies, inspecting or
permitting facilities,
screening analysis, or
product labels
Economic analyses for
new major rules, cleanup
plans, and reviews of
existing rules; excepts
analyses in emergencies,
for rules authorizing or
recognizing a commercial
product, for inspecting or
permitting facilities,
registering pesticides,
reviewing toxicity
information for
commercial chemicals,
setting limits for pesticide
residues in food, screening
analysis, or product labels
Risk analyses and
characterizations in
connection with health,
safety, or environmental
risks, excluding those that
support approval of new
products or permitting
actions, screening
analyses, inspections or
enforcement actions
12
105th Congress
S. 1728, as introduced
Risk
characterizations in
risk assessment
documents,
regulatory proposals,
or decisions by
covered agencies
This would be a new authority for OMB. Current practice and provisions proposed in all the above abstracted bills from the 104th and 105th Congresses provide OMB
with the authority to designate rules to be treated as major, but no other bill confers such power with respect to risk analyses.
CRS-14
Provision
Major Rules
103rd Congress
Johnston Amendments,
as passed by the Senate
104th Congress
S. 343, as reported by
the Judiciary Committee
104th Congress
H.R. 9, as passed by the
House
105th Congress
S. 981, as reported
S. 171 — Not
applicable
Covered rules with
an estimated cost of
$50 million or more
in a year, or with
specified significant
adverse effects on
economic activity,
innovation, health,
safety, or the
environment;
excluding tax rules
and rules approving
or removing a
product in
commerce
Division C —
Substantive rules
likely to result in an
annual effect on the
economy of $50
million or more,
major increases in
costs or prices, or
significant adverse
effects on economic
activity or
innovation
Substantive rules
likely to have a gross
annual cost of $100
million or more, or to
result in other
specified significant
adverse effects on
economic activity,
innovation, public
health, safety, the
environment, state,
local, or tribal
governments, or
communities
S. 2019 — Rules
that may have an
effect on the
economy of $100
million or more in
any one year
Division D —
Rules likely to
result in an annual
increase in costs of
$25 million or
more; excepts rules
approving products
or substances
105th Congress
S. 1728, as introduced
Same as S. 981
CRS-15
Provision
103rd Congress
Johnston Amendments,
as passed by the Senate
104th Congress
S. 343, as reported by
the Judiciary Committee
104th Congress
H.R. 9, as passed by the
House
105th Congress
S. 981, as reported
Mandates for
Economic
Analysis
S. 171 — For final
rules relating to
health and safety or
the environment;
agencies must
analyze costs,
benefits, and
whether benefits
will justify costs
For proposed and
final major rules,
major cleanup plans,
and existing rules
being reviewed,
agencies must
analyze costs,
benefits, incremental
costs and benefits,
feasibility of
specified
alternatives,
cumulative
compliance burden,
net effect on small
businesses, whether
benefits justify
costs, and whether
greater net
benefits or lower net
costs are achieved;
also must describe
persons who are
likely to benefit and
to bear the cost
Division C — For
major proposed or
final rules, agencies
must analyze costs,
benefits, and
distribution of costs
and benefits for the
proposal and lesscost alternatives
For major new rules,
agencies must
analyze benefits;
costs; benefits
relative to costs;
cost-effectiveness;
net benefits; a
reasonable number of
reasonable
alternatives;
feasibility of using
market-based
mechanisms;
flexibility provided to
local and state
governments and the
regulated community;
and quality of
information
No provision
Specifies principles
of economic analysis
No provision
S. 2019 — For all
major proposed and
final rules relating
to human health
and the
environment,
agencies must
analyze costs and
benefits to
governments and
the private sector;
cost-effectiveness
of the rule and
alternatives; and
whether benefits
justify costs
Principles of
Economic
Analysis
No provision
Specifies principles
of economic analysis
Division D — For
each proposed or
final major rule,
agencies must
analyze incremental
costs
and benefits of the
rule and alternatives
105th Congress
S. 1728, as introduced
For each final major
rule, agencies must
analyze whether
benefits are likely
to exceed costs,
and effects on small
businesses, net
employment, and
cumulative financial
compliance burden
No provision
CRS-16
Provision
103rd Congress
Johnston Amendments,
as passed by the Senate
104th Congress
S. 343, as reported by
the Judiciary Committee
104th Congress
H.R. 9, as passed by the
House
105th Congress
S. 981, as reported
105th Congress
S. 1728, as introduced
Mandates for
Risk Analyses
S. 171 — Agencies
must analyze a
rule’s effect on
health or the
environment;
estimate risk to
individuals; and
compare risks
For new major
rules, major
environmental
cleanup plans, and
reviews of existing
rules, agencies must
analyze risks, data
quality, and
incremental risk
reduction, and must
compare risks
For all proposed or
final major rules
designed to protect
health, safety, or
the environment,
agencies must
assess incremental
risk reduction,
distribution of risks,
known substitution
risks, and
comparable risks
For proposed and
final major rules the
primary purpose of
which is to address
health, safety, or
environmental risk,
agencies must
analyze risk and
distribution of risk to
exposed populations,
subpopulations, or
natural resources,
and must compare
risks when data are
available
For proposed and
final major rules the
primary purpose of
which is to address
health, safety, or
environmental risk,
agencies must
analyze risk to
exposed individuals,
populations, or
natural resources,
including
substitution risks
S. 2019 —
Agencies must
analyze risks to
human health,
including risks to
significant
subpopulations
disproportionately
exposed or particularly sensitive,
and compare risks
for at least 6 other
hazards
CRS-17
Provision
Principles of
Risk
Assessment
and Risk
Characterizati
on
103rd Congress
Johnston Amendments,
as passed by the Senate
104th Congress
S. 343, as reported by
the Judiciary Committee
104th Congress
H.R. 9, as passed by the
House
105th Congress
S. 981, as reported
105th Congress
S. 1728, as introduced
No provision
Specifies principles
of risk assessment
and risk
characterizations
Specifies principles
of risk assessment
and risk
characterizations
Specifies principles
of risk assessment
and risk
characterizations
Specifies principles
of risk assessment
and
characterizations
Risk analyses for
major rules must be
plausible and
realistic
Agencies must
analyze
uncertainties,
conflicting data,
and assumptions; be
scientifically
objective and
unbiased; and rely
on scientific
findings and
consider all relevant
scientific data
Agencies must
analyze uncertainties,
variabilities,
conflicting data,
inferences, and
assumptions;
consider “all relevant,
reliable, and
reasonably available
scientific
information”; be
objective and
systematic, and
carefully analyze the
weight of the
scientific evidence
Agencies must
analyze
uncertainties,
variabili-ties, and
assumptions;
consider reliable
and reasonably
available scientific
information and
promote rational
and informed risk
management
decisions and
informed public
participation; and
provide for public
input to the process
For human health
risk analysis for a
major rule, agencies
must use: the most
scientifically
plausible model;
best estimates; and
probabilistic
descriptions of
uncertainty and
variability; data
must be developed
in accord with promulgated standards for toxic
substances and
pesticide tests
Agencies must
express risk as a
reasonable range of
estimates, including
a best estimate;
distinguish
scientific findings
from other
considerations and
for human health
risk assessments,
discuss conflicting
data
Agencies must revise
assumptions to
incorporate new
relevant and reliable
scientific information
as it becomes
reasonably available
Agencies must
express risk estimates
as reasonable ranges
Agencies must
express risk
estimates as
reasonable ranges
or probability
distributions,
including the most
plausible risk
estimates for the
general population
CRS-18
Provision
103rd Congress
Johnston Amendments,
as passed by the Senate
104th Congress
S. 343, as reported by
the Judiciary Committee
104th Congress
H.R. 9, as passed by the
House
105th Congress
S. 981, as reported
Certification
S. 171 — For each
final rule EPA must
certify that: the
estimate and
analysis are based
upon “a scientific
evaluation of the
risk” and supported
by the “best
available scientific
data”; the rule will
substantially
increase health or
environmental
protection; and the
rule will produce
benefits that will
justify the costs
No provision
For each final rule,
an agency must
certify that:
analyses are based
on objective and
unbiased scientific
and economic
evaluation of all
information
provided;
incremental benefits
are likely to justify
and be reasonably
related to the
incremental costs;
and alternatives are
either less costeffective or provide
less flexibility to
regulated entities or
local or state
governments
For each major rule,
an agency must
certify: its
compliance with
rulemaking
procedures and the
satisfaction of
decision criteria, or
an explanation of
why certification
cannot be made
S. 2019 — For
each proposed and
final major rule
relating to human
health or the
environment, EPA
must certify that:
the analyses are
based on the “best
reasonably
obtainable scientific
information”; the
rule is likely to
significantly reduce
105th Congress
S. 1728, as introduced
No provision
CRS-19
Provision
103rd Congress
Johnston Amendments,
as passed by the Senate
104th Congress
S. 343, as reported by
the Judiciary Committee
104th Congress
H.R. 9, as passed by the
House
105th Congress
S. 981, as reported
Decision
Criteria for
Rules
S. 171 — Benefits
will justify costs
Potential benefits
justify potential
costs
Prohibits adoption
of a final rule
without
certification that—
incremental benefits
are likely to justify
and be reasonably
related to the
incremental costs,
and
rule is most costeffective or
provides more
flexibility than
alternatives
Whether a rule is
likely to be most
cost-effective or to
provide the greatest
net benefits
S. 2019 — Likely
benefits will justify
costs, and rule is
most cost-effective
alternative allowed
by law
Rule is the most
cost-effective or
least-cost alternative
Rule does not
disapprove a
product on the basis
of safety if it
presents a negligible
human risk under
intended conditions
of use
Prohibits
promulgation of a
major rule unless
agencies have
complied with
analytic and
certification
requirements and
these are supported
by substantial
evidence of the
rulemaking record
Prohibits
promulgation of a
major rule without
OMB approval or
Whether likely
benefits will justify
costs
105th Congress
S. 1728, as introduced
No provision
CRS-20
Provision
103rd Congress
Johnston Amendments,
as passed by the Senate
104th Congress
S. 343, as reported by
the Judiciary Committee
104th Congress
H.R. 9, as passed by the
House
105th Congress
S. 981, as reported
105th Congress
S. 1728, as introduced
Effect on
Implementatio
n of Existing
Laws
S. 171 —
Certification
requirement does
not amend, modify,
or alter any statute
Prohibits
promulgation of a
rule unless decision
criteria are met;
decision criteria
supplement existing
statutory
requirements
Requires agencies
to consider analyses
required by
Division C only “to
extent permitted by
law”
Requirements apply
to the extent that
they are not
inconsistent with
existing statutes
Adds new
requirements to
rulemaking under
existing statutes and
apparently would
supersede them if
requirements
conflicted
S. 2019 — Does
not affect any other
provision of federal
law or authorize
EPA consideration
of additional
factors in its
decisions
Notice and
comment
procedures apply to
rules under statutes
not generally subject
to 5 U.S.C. 553
Requires analysis of
an alternative to a
cleanup plan only if
it is consistent with
the agency’s
statutory authority
Supersedes laws
prohibiting or
denying approval of
a product on the
basis of safety if it
poses a negligible
risk to human health
under intended
conditions of use
Rulemaking
provisions of
Division D
supersede
provisions of
existing laws
authorizing
regulatory activities
designed to protect
health safety, or the
environment
CRS-21
Provision
Executive
Coordination
and Oversight
of Agency
Analyses
103rd Congress
Johnston Amendments,
as passed by the Senate
104th Congress
S. 343, as reported by
the Judiciary Committee
104th Congress
H.R. 9, as passed by the
House
105th Congress
S. 981, as reported
No provision
Executive branch
must develop
uniform procedures
for regulatory
analysis and oversee
agency
implementation;
limits time for
review of proposed
or final regulations
to 30 days, which
may be extended
OMB may review
draft and final
economic analyses
and rules; limits
time for review to
90 days; OMB
must approve of, or
comment on, final
economic analyses
for major rules
OMB must establish
a process to review
and coordinate
agency regulatory
actions; limits time
for review to 90
days, but allows
extension
Similar to S. 343
OMB, in consultation
with the Council of
Economic Advisors
(CEA), the Director
of the Office of
Science and
Technology Policy
(OSTP), and relevant
agency heads, must
issue guidelines for
cost-benefit analyses,
risk assessments, and
peer review
President must issue
guidance for risk
analysis, and OMB
must issue guidance
for cost-benefit
analysis
Agencies must
maintain a
rulemaking file
containing copies of
all material that
pertains directly to
the rulemaking that
was available to the
Agencies must
disclose changes
made from the
preliminary risk
analysis in the final
regulatory impact
analysis
Agencies must
disclose changes to
regulatory proposals
that result from
OMB review
105th Congress
S. 1728, as introduced
No provision
CRS-22
Provision
Congressional
Review of
Agency
Rulemaking
13
103rd Congress
Johnston Amendments,
as passed by the Senate
104th Congress
S. 343, as reported by
the Judiciary Committee
104th Congress
H.R. 9, as passed by the
House
No provision
Agencies must
submit final
regulations to
Congress, which
may reject them by
joint resolution of
disapproval13
No provision
This provision was enacted by the 104th Congress in Public Law 104-121.
105th Congress
S. 981, as reported
No provision
105th Congress
S. 1728, as introduced
No provision
CRS-23
Provision
Peer Review
103rd Congress
Johnston Amendments,
as passed by the Senate
104th Congress
S. 343, as reported by
the Judiciary Committee
104th Congress
H.R. 9, as passed by the
House
105th Congress
S. 981, as reported
No provision
Covered agencies
must have uniform
peer review
procedures; peer
review panels must
include a balanced
group of experts
representing all
interests and not
exclude those with a
potential interest in
the outcome, if
disclosed, unless a
single entity is
affected by a
regulatory decision;
excludes people
associated with
generation of the
work being
reviewed; requires
reporting of
minority views
Agencies must have
independent,
external peer
review programs;
review panels must
be balanced and not
exclude those with
a potential interest
in the outcome, if
disclosed, unless a
single entity is
affected by a
regulatory decision
Agencies must
arrange for
independent peer
review by broadly
representative expert
groups; panels must
adhere to agency
standards and
practices governing
conflicts of interest
Federal Advisory
Committee Act
(FACA) applies to
peer review panels
Requires peer
review of risk
analyses and
economic analyses
for major rules with
an impact of at least
$100 million, and of
any analysis likely
to have a significant
impact on public
policy decisions, if
ordered by OMB
A National Peer
Review Panel must
annually review
agencies’ cost
assessment
practices
Federal Advisory
Committee Act does
not apply to peer
review
Requires peer review
of risk analyses and
cost-benefit analyses
of major rules likely
to have an annual
effect of $100 million
or more
Agency must publish
a statement by a
federal official from
outside the agency
indicating that review
participants were
independent and
expert and that the
agency has
105th Congress
S. 1728, as introduced
No provision
CRS-24
Provision
103rd Congress
Johnston Amendments,
as passed by the Senate
Peer Review
(cont.)
Deadlines
104th Congress
S. 343, as reported by
the Judiciary Committee
104th Congress
H.R. 9, as passed by the
House
105th Congress
S. 981, as reported
Agencies may
promulgate a rule
prior to completing
economic analyses
required by
Division C if
analysis conflicts
with deadlines
During the first 2
years after
enactment, suspends
statutory and judicial
deadlines for
rulemaking for 6
months or until
requirements for
regulatory analysis
are satisfied
105th Congress
S. 1728, as introduced
Requires peer
review of: risk
analyses, costbenefit analyses, and
supporting data for
major rules and
reviews of rules; data supporting risk
analysis of cleanup
plans; quantitative
estimates of risk or
hazard used in
regulations; entries
into EPA’s risk
database; guidelines
for cost-benefit
analysis; and regulations for the
conduct of risk
analysis and risk
characterization
S. 171 — No
provision
S. 2019 — Action
required to meet a
statutory or judicial
deadline shall not
be delayed
Suspends judicial
and statutory
deadlines for
rulemaking until
requirements for
regulatory analysis
are met
Same as S. 981
CRS-25
Provision
Review of
Existing Rules
103rd Congress
Johnston Amendments,
as passed by the Senate
104th Congress
S. 343, as reported by
the Judiciary Committee
104th Congress
H.R. 9, as passed by the
House
105th Congress
S. 981, as reported
No provision
Agencies must
review all existing
major rules, rules
that are inconsistent
with this Act, and
rules designated by
the President;
existing rules would
terminate in 7 years,
new rules in 5 years,
unless reviewed
Division D —
Agencies may set
priorities and
procedures for
review, revision,
and repeal of major
rules promulgated
prior to the
effective date of the
Act
Agencies must
review existing major
rules as necessary
105th Congress
S. 1728, as introduced
No provision
CRS-26
Provision
Citizen
Petitions
103rd Congress
Johnston Amendments,
as passed by the Senate
104th Congress
S. 343, as reported by
the Judiciary Committee
104th Congress
H.R. 9, as passed by the
House
No provision
Citizens may
petition for judicial
review of agency
analysis and
certification of a
rule’s impact on
small entities
Citizens may
petition for judicial
review of agency
compliance with
Division C analytic
requirements
Citizens also may
petition for:
issuance,
amendment, or
repeal of any rule;
amendment or
repeal of any
interpretive rule,
guidance, or general
policy statement; a
variance or
exemption from any
major rule; costbenefit analysis of a
major rule; review
of a risk assessment
or cost-benefit
analysis for a major
rule or major
cleanup plan; and
review of any risk
assessment or any
entry on an agencydeveloped database
105th Congress
S. 981, as reported
No provision
105th Congress
S. 1728, as introduced
No provision
CRS-27
Provision
103rd Congress
Johnston Amendments,
as passed by the Senate
104th Congress
S. 343, as reported by
the Judiciary Committee
104th Congress
H.R. 9, as passed by the
House
105th Congress
S. 981, as reported
105th Congress
S. 1728, as introduced
Actions
Subject to
Judicial
Review
S. 171 —
Certification is not
subject to judicial
review; no cause of
action is granted to
any person
Subjects to judicial
review all agency
decisions (and any
failure to make such
decisions) to issue,
grant, or deny rules,
orders, petitions,
licenses, sanctions,
or relief
Division C —
Subjects agency
analyses regarding
the effect of a rule
on small entities to
judicial review in
connection with
promulgation of a
major rule
Permits judicial
review of agency
compliance with
requirements for
regulatory analysis
only in connection
with review of a final
agency action
Subjects to judicial
review agency (but
not OMB)
designations of
rules as major or
not major
Subjects to judicial
review agencies’
regulatory flexibility
analysis and
certification
regarding impact of
a rule on small
entities
Division D —
Subjects agency
compliance with
analytic
requirements to
judicial review
under the
authorizing statute
and the
Administrative
Procedure Act
S. 2019 — Does
not create any right
or benefit,
substantive or
procedural;
adequacy of
certification or
alleged failure to
comply is not
grounds for
invalidating a major
rule
Subjects to judicial
review agencies’
regulatory flexibility
analysis and
certification
regarding impact of a
rule on small entities
Subjects risk
assessments to
judicial review
when final rules are
reviewed
CRS-28
Provision
Standard of
Judicial
Review
103rd Congress
Johnston Amendments,
as passed by the Senate
104th Congress
S. 343, as reported by
the Judiciary Committee
104th Congress
H.R. 9, as passed by the
House
105th Congress
S. 981, as reported
105th Congress
S. 1728, as introduced
No provision
Whether there is
substantial support
in the rulemaking
file for the factual
basis of agency
actions, findings, or
conclusions;
whether agencies
observed procedural
requirements;
whether statutory
authority was
exceeded; or
whether the agency
interpreted the rule
in a narrow way
when a broader
interpretation would
have allowed the
agency to design a
rule with benefits
that justified costs
and that would be
more cost-effective
or less costly
Division D —
Whether agencies
substantially
complied with the
principles for risk
assessment and
characterization
Whether the costbenefit
determination, risk
assessment, or peer
review was wholly
omitted
Whether the
designation of a
rule as major or
non-major clearly
and convincingly is
shown to be
erroneous
Whether the final rule
is arbitrary,
capricious, an abuse
of discretion, or is
unsupported by
substantial evidence
where that standard
is otherwise provided
by law
Whether the final
rule is arbitrary or
capricious
Whether an agency
failed to perform a
required risk
assessment
CRS-29
Provision
Risk-Based
Priorities
103rd Congress
Johnston Amendments,
as passed by the Senate
104th Congress
S. 343, as reported by
the Judiciary Committee
104th Congress
H.R. 9, as passed by the
House
105th Congress
S. 981, as reported
No provision
Agencies must
reflect risk-based
priorities in annual
budget requests
The President must
identify relative
risks and costeffective risk
reduction strategies
and opportunities
and obstacles to
reflecting priorities
within regulatory
programs to protect
health in a costeffective and costreasonable manner
OMB must contract
with a scientific
institution to
compare risks to
human health, safety,
and the environment;
to study
methodologies for
comparing dissimilar
risks; and to
recommend how to
set priorities for
reducing risks
Agencies must use
the results of the
study to inform their
annual budgets and
strategic plans and
performance plans
105th Congress
S. 1728, as introduced
No provision
This is a copy of a public record, reproduced as it was published. It is not legal advice, and it may not be the version a court would rely on. Check the official source before you cite it.