For other versions of this document, see http://wikileaks.org/wiki/CRS-RL30031 ------------------------------------------------------------------------------ Order Code RL30031 CRS Report for Congress Received through the CRS Web 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 1 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. 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, CRS-3 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. 104- 170), 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 Senate- passed 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 cost- effectiveness 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. CRS-7 Johnston amendment to S. 2019 also would have required a rule to be most cost- effective. 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 cost- effective 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 H.R. S. 981 S. 1728 9 Benefits justify costs X X X X Most cost-effective X X X X Least cost X Greatest net benefits X Flexible X Incremental costs -- X incremental benefits 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 risk- based 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. CRS-8 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. CRS-9 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 104th Congress 104th Congress 105th Congress 105th Congress Johnston Amendments, S. 343, as reported by H.R. 9, as passed by the S. 981, as reported S. 1728, as introduced as passed by the Senate the Judiciary Committee House Affected Agencies U.S. Environmental All federal agencies Rulemaking: All federal All federal agencies All federal agencies Protection Agency (EPA) agencies Risk analysis: EPA, ACOE, CPSC, DOE, DOI, DOT, FDA, MSHA, NOAA, NRC, OSHA, USDA, and other agen- cies designated by OMB10 9 Because the report omits specific provisions that modify general requirements of the highlighted sections, reference to the bills themselves is advisable. 10 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 104th Congress 104th Congress 105th Congress 105th Congress Johnston Amendments, S. 343, as reported by H.R. 9, as passed by the S. 981, as reported S. 1728, as introduced as passed by the Senate the Judiciary Committee House Rules and Other S. 171 -- Final rules Varies section by section., Division C -- Substantive rules, excluding Substantive rules the Products or relating to human health but generally applies to all Substantive rules, rules required to be issued primary purpose of which Activities Affected and safety or the generally applicable rules, excluding rules issued in annually; authorizing is to address health, environment including substantive an emergency, under a introduction into commerce safety, or environmental rules11; interpretive rules deadline, or to implement of food, drugs, or cosmetics; risks; excludes the same S. 2019 -- Proposed and or rules of agency organi- tax laws or international issued by the Federal rules excluded by S. 981, final major rules relating zation, procedure, or sanctions Election Commission or in except does not exclude to human health or the practice that alter or create some cases by the Federal rules authorizing environment rights or obligations of Division D -- Generally Communications introduction into persons outside the applicable rules, Commission; or affecting commerce of food, drugs, agency; and rules per- including substantive tax, monetary policy, or cosmetics taining to agency acquisi- rules; excepts rules security brokers and tion, management, or dis- issued in an emergency, dealers, or bank safety or Risk analyses for major posal of property or ser- approving food, drug or soundness rules relating to human vices if not by GSA other product labels, health or the environment procedures; excepts rules approving state programs, Economic analyses of new and for rules that result in pertaining to military or or relating to military major rules a significant substitution foreign affairs readiness, health risk insurance, or medical services 11 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 103rd Congress 104th Congress 104th Congress 105th Congress 105th Congress Johnston Amendments, S. 343, as reported by H.R. 9, as passed by the S. 981, as reported S. 1728, as introduced as passed by the Senate the Judiciary Committee House Affected Activities Policy statements that Risk analyses and Risk analyses in (cont.) alter or create rights or obligations of persons communications in connection with outside the agency support of major rules "significant" risk addressing health, Economic analyses for new major rules, cleanup documents safety, or plans, and reviews of environmental risks, existing rules; excepts and other risk analyses in emergencies, for rules authorizing or analyses designated recognizing a commercial by OMB;12 excepts product, for inspecting or analyses for emer- permitting facilities, registering pesticides, gencies, inspecting or reviewing toxicity permitting facilities, information for screening analysis, or commercial chemicals, setting limits for pesticide product labels residues in food, screening analysis, or product labels Risk Risk analyses and characterizations in characterizations in risk assessment connection with health, documents, safety, or environmental risks, excluding those that regulatory proposals, support approval of new or decisions by products or permitting covered agencies actions, screening analyses, inspections or enforcement actions 12 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 103rd Congress 104th Congress 104th Congress 105th Congress 105th Congress Johnston Amendments, S. 343, as reported by H.R. 9, as passed by the S. 981, as reported S. 1728, as introduced as passed by the Senate the Judiciary Committee House Major Rules S. 171 -- Not Covered rules with Division C -- Substantive rules Same as S. 981 applicable an estimated cost of Substantive rules likely to have a gross $50 million or more likely to result in an annual cost of $100 S. 2019 -- Rules in a year, or with annual effect on the million or more, or to that may have an specified significant economy of $50 result in other effect on the adverse effects on million or more, specified significant economy of $100 economic activity, major increases in adverse effects on million or more in innovation, health, costs or prices, or economic activity, any one year safety, or the significant adverse innovation, public environment; effects on economic health, safety, the excluding tax rules activity or environment, state, and rules approving innovation local, or tribal or removing a governments, or product in Division D -- communities commerce Rules likely to result in an annual increase in costs of $25 million or more; excepts rules approving products or substances CRS-15 Provision 103rd Congress 104th Congress 104th Congress 105th Congress 105th Congress Johnston Amendments, S. 343, as reported by H.R. 9, as passed by the S. 981, as reported S. 1728, as introduced as passed by the Senate the Judiciary Committee House Mandates for S. 171 -- For final For proposed and Division C -- For For major new rules, No provision Economic rules relating to final major rules, major proposed or agencies must Analysis health and safety or major cleanup plans, final rules, agencies analyze benefits; the environment; and existing rules must analyze costs, costs; benefits agencies must being reviewed, benefits, and relative to costs; analyze costs, agencies must distribution of costs cost-effectiveness; benefits, and analyze costs, and benefits for the net benefits; a whether benefits benefits, incremental proposal and less- reasonable number of will justify costs costs and benefits, cost alternatives reasonable feasibility of alternatives; specified Division D -- For feasibility of using S. 2019 -- For all alternatives, each proposed or market-based major proposed and cumulative final major rule, mechanisms; final rules relating compliance burden, agencies must flexibility provided to to human health net effect on small analyze incremental local and state and the businesses, whether costs governments and the environment, benefits justify and benefits of the regulated community; agencies must costs, and whether rule and alternatives and quality of analyze costs and greater net information benefits to benefits or lower net For each final major governments and costs are achieved; rule, agencies must the private sector; also must describe analyze whether cost-effectiveness persons who are benefits are likely of the rule and likely to benefit and to exceed costs, alternatives; and to bear the cost and effects on small whether benefits businesses, net justify costs employment, and cumulative financial compliance burden Principles of No provision Specifies principles No provision Specifies principles No provision Economic of economic analysis of economic analysis Analysis CRS-16 Provision 103rd Congress 104th Congress 104th Congress 105th Congress 105th Congress Johnston Amendments, S. 343, as reported by H.R. 9, as passed by the S. 981, as reported S. 1728, as introduced as passed by the Senate the Judiciary Committee House Mandates for S. 171 -- Agencies For new major For all proposed or For proposed and For proposed and Risk Analyses must analyze a rules, major final major rules final major rules the final major rules the rule's effect on environmental designed to protect primary purpose of primary purpose of health or the cleanup plans, and health, safety, or which is to address which is to address environment; reviews of existing the environment, health, safety, or health, safety, or estimate risk to rules, agencies must agencies must environmental risk, environmental risk, individuals; and analyze risks, data assess incremental agencies must agencies must compare risks quality, and risk reduction, analyze risk and analyze risk to incremental risk distribution of risks, distribution of risk to exposed individuals, S. 2019 -- reduction, and must known substitution exposed populations, populations, or Agencies must compare risks risks, and subpopulations, or natural resources, analyze risks to comparable risks natural resources, including human health, and must compare substitution risks including risks to risks when data are significant available subpopulations disproportionately exposed or parti- cularly sensitive, and compare risks for at least 6 other hazards CRS-17 Provision 103rd Congress 104th Congress 104th Congress 105th Congress 105th Congress Johnston Amendments, S. 343, as reported by H.R. 9, as passed by the S. 981, as reported S. 1728, as introduced as passed by the Senate the Judiciary Committee House Principles of No provision Specifies principles Specifies principles Specifies principles Specifies principles Risk of risk assessment of risk assessment of risk assessment of risk assessment Assessment and risk and risk and risk and and Risk characterizations characterizations characterizations characterizations Characterizati on Risk analyses for Agencies must Agencies must Agencies must major rules must be analyze analyze uncertainties, analyze plausible and uncertainties, variabilities, uncertainties, realistic conflicting data, conflicting data, variabili-ties, and and assumptions; be inferences, and assumptions; For human health scientifically assumptions; consider reliable risk analysis for a objective and consider "all relevant, and reasonably major rule, agencies unbiased; and rely reliable, and available scientific must use: the most on scientific reasonably available information and scientifically findings and scientific promote rational plausible model; consider all relevant information"; be and informed risk best estimates; and scientific data objective and management probabilistic systematic, and decisions and descriptions of Agencies must carefully analyze the informed public uncertainty and express risk as a weight of the participation; and variability; data reasonable range of scientific evidence provide for public must be developed estimates, including input to the process in accord with - a best estimate; Agencies must revise promulgated stan- distinguish assumptions to Agencies must dards for toxic scientific findings incorporate new express risk substances and from other relevant and reliable estimates as pesticide tests considerations and scientific information reasonable ranges for human health as it becomes or probability risk assessments, reasonably available distributions, discuss conflicting including the most data Agencies must plausible risk express risk estimates estimates for the as reasonable ranges general population CRS-18 Provision 103rd Congress 104th Congress 104th Congress 105th Congress 105th Congress Johnston Amendments, S. 343, as reported by H.R. 9, as passed by the S. 981, as reported S. 1728, as introduced as passed by the Senate the Judiciary Committee House Certification S. 171 -- For each No provision For each final rule, For each major rule, No provision final rule EPA must an agency must an agency must certify that: the certify that: certify: its estimate and analyses are based compliance with analysis are based on objective and rulemaking upon "a scientific unbiased scientific procedures and the evaluation of the and economic satisfaction of risk" and supported evaluation of all decision criteria, or by the "best information an explanation of available scientific provided; why certification data"; the rule will incremental benefits cannot be made substantially are likely to justify increase health or and be reasonably environmental related to the protection; and the incremental costs; rule will produce and alternatives are benefits that will either less cost- justify the costs effective or provide less flexibility to S. 2019 -- For regulated entities or each proposed and local or state final major rule governments 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 CRS-19 Provision 103rd Congress 104th Congress 104th Congress 105th Congress 105th Congress Johnston Amendments, S. 343, as reported by H.R. 9, as passed by the S. 981, as reported S. 1728, as introduced as passed by the Senate the Judiciary Committee House Decision S. 171 -- Benefits Potential benefits Prohibits adoption Whether a rule is No provision Criteria for will justify costs justify potential of a final rule likely to be most Rules costs without cost-effective or to S. 2019 -- Likely certification that-- provide the greatest benefits will justify Rule is the most incremental benefits net benefits costs, and rule is cost-effective or are likely to justify most cost-effective least-cost alternative and be reasonably Whether likely alternative allowed related to the benefits will justify by law Rule does not incremental costs, costs disapprove a and product on the basis rule is most cost- of safety if it effective or presents a negligible provides more human risk under flexibility than intended conditions alternatives 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 CRS-20 Provision 103rd Congress 104th Congress 104th Congress 105th Congress 105th Congress Johnston Amendments, S. 343, as reported by H.R. 9, as passed by the S. 981, as reported S. 1728, as introduced as passed by the Senate the Judiciary Committee House Effect on S. 171 -- Prohibits Requires agencies Requirements apply Adds new Implementatio Certification promulgation of a to consider analyses to the extent that requirements to n of Existing requirement does rule unless decision required by they are not rulemaking under Laws not amend, modify, criteria are met; Division C only "to inconsistent with existing statutes and or alter any statute decision criteria extent permitted by existing statutes apparently would supplement existing law" supersede them if S. 2019 -- Does statutory requirements not affect any other requirements Rulemaking conflicted provision of federal provisions of law or authorize Notice and Division D EPA consideration comment supersede of additional procedures apply to provisions of factors in its rules under statutes existing laws decisions not generally subject authorizing to 5 U.S.C. 553 regulatory activities designed to protect Requires analysis of health safety, or the an alternative to a environment 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 CRS-21 Provision 103rd Congress 104th Congress 104th Congress 105th Congress 105th Congress Johnston Amendments, S. 343, as reported by H.R. 9, as passed by the S. 981, as reported S. 1728, as introduced as passed by the Senate the Judiciary Committee House Executive No provision Executive branch OMB may review OMB must establish No provision Coordination must develop draft and final a process to review and Oversight uniform procedures economic analyses and coordinate of Agency for regulatory and rules; limits agency regulatory Analyses analysis and oversee time for review to actions; limits time agency 90 days; OMB for review to 90 implementation; must approve of, or days, but allows limits time for comment on, final extension review of proposed economic analyses or final regulations for major rules to 30 days, which may be extended Similar to S. 343 OMB, in consultation President must issue with the Council of guidance for risk Economic Advisors analysis, and OMB (CEA), the Director must issue guidance of the Office of for cost-benefit Science and analysis Technology Policy (OSTP), and relevant agency heads, must issue guidelines for cost-benefit analyses, Agencies must risk assessments, and disclose changes peer review Agencies must made from the maintain a preliminary risk Agencies must rulemaking file analysis in the final disclose changes to containing copies of regulatory impact regulatory proposals all material that analysis that result from pertains directly to OMB review the rulemaking that was available to the CRS-22 Provision 103rd Congress 104th Congress 104th Congress 105th Congress 105th Congress Johnston Amendments, S. 343, as reported by H.R. 9, as passed by the S. 981, as reported S. 1728, as introduced as passed by the Senate the Judiciary Committee House Congressional No provision Agencies must No provision No provision No provision Review of submit final Agency regulations to Rulemaking Congress, which may reject them by joint resolution of disapproval13 13 This provision was enacted by the 104th Congress in Public Law 104-121. CRS-23 Provision 103rd Congress 104th Congress 104th Congress 105th Congress 105th Congress Johnston Amendments, S. 343, as reported by H.R. 9, as passed by the S. 981, as reported S. 1728, as introduced as passed by the Senate the Judiciary Committee House Peer Review No provision Covered agencies Agencies must have Agencies must No provision must have uniform independent, arrange for peer review external peer independent peer procedures; peer review programs; review by broadly review panels must review panels must representative expert include a balanced be balanced and not groups; panels must group of experts exclude those with adhere to agency representing all a potential interest standards and interests and not in the outcome, if practices governing exclude those with a disclosed, unless a conflicts of interest potential interest in single entity is the outcome, if affected by a Federal Advisory disclosed, unless a regulatory decision Committee Act does single entity is not apply to peer affected by a Requires peer review regulatory decision; review of risk excludes people analyses and Requires peer review associated with economic analyses of risk analyses and generation of the for major rules with cost-benefit analyses work being an impact of at least of major rules likely reviewed; requires $100 million, and of to have an annual reporting of any analysis likely effect of $100 million minority views to have a significant or more impact on public Federal Advisory policy decisions, if Agency must publish Committee Act ordered by OMB a statement by a (FACA) applies to federal official from peer review panels A National Peer outside the agency Review Panel must indicating that review annually review participants were agencies' cost independent and assessment expert and that the practices agency has CRS-24 Provision 103rd Congress 104th Congress 104th Congress 105th Congress 105th Congress Johnston Amendments, S. 343, as reported by H.R. 9, as passed by the S. 981, as reported S. 1728, as introduced as passed by the Senate the Judiciary Committee House Peer Review Requires peer (cont.) review of: risk analyses, cost- benefit 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 regula- tions for the conduct of risk analysis and risk characterization Deadlines S. 171 -- No Suspends judicial Agencies may During the first 2 Same as S. 981 provision and statutory promulgate a rule years after deadlines for prior to completing enactment, suspends S. 2019 -- Action rulemaking until economic analyses statutory and judicial required to meet a requirements for required by deadlines for statutory or judicial regulatory analysis Division C if rulemaking for 6 deadline shall not are met analysis conflicts months or until be delayed with deadlines requirements for regulatory analysis are satisfied CRS-25 Provision 103rd Congress 104th Congress 104th Congress 105th Congress 105th Congress Johnston Amendments, S. 343, as reported by H.R. 9, as passed by the S. 981, as reported S. 1728, as introduced as passed by the Senate the Judiciary Committee House Review of No provision Agencies must Division D -- Agencies must No provision Existing Rules review all existing Agencies may set review existing major major rules, rules priorities and rules as necessary that are inconsistent procedures for with this Act, and review, revision, rules designated by and repeal of major the President; rules promulgated existing rules would prior to the terminate in 7 years, effective date of the new rules in 5 years, Act unless reviewed CRS-26 Provision 103rd Congress 104th Congress 104th Congress 105th Congress 105th Congress Johnston Amendments, S. 343, as reported by H.R. 9, as passed by the S. 981, as reported S. 1728, as introduced as passed by the Senate the Judiciary Committee House Citizen No provision Citizens may Citizens may No provision No provision Petitions petition for judicial petition for judicial review of agency review of agency analysis and compliance with certification of a Division C analytic rule's impact on requirements small entities 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; cost- benefit 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 agency- developed database CRS-27 Provision 103rd Congress 104th Congress 104th Congress 105th Congress 105th Congress Johnston Amendments, S. 343, as reported by H.R. 9, as passed by the S. 981, as reported S. 1728, as introduced as passed by the Senate the Judiciary Committee House Actions S. 171 -- Subjects to judicial Division C -- Permits judicial Subjects to judicial Subject to Certification is not review all agency Subjects agency review of agency review agency (but Judicial subject to judicial decisions (and any analyses regarding compliance with not OMB) Review review; no cause of failure to make such the effect of a rule requirements for designations of action is granted to decisions) to issue, on small entities to regulatory analysis rules as major or any person grant, or deny rules, judicial review in only in connection not major orders, petitions, connection with with review of a final S. 2019 -- Does licenses, sanctions, promulgation of a agency action Subjects risk not create any right or relief major rule assessments to or benefit, Subjects to judicial judicial review substantive or Subjects to judicial Division D -- review agencies' when final rules are procedural; review agencies' Subjects agency regulatory flexibility reviewed adequacy of regulatory flexibility compliance with analysis and certification or analysis and analytic certification alleged failure to certification requirements to regarding impact of a comply is not regarding impact of judicial review rule on small entities grounds for a rule on small under the invalidating a major entities authorizing statute rule and the Administrative Procedure Act CRS-28 Provision 103rd Congress 104th Congress 104th Congress 105th Congress 105th Congress Johnston Amendments, S. 343, as reported by H.R. 9, as passed by the S. 981, as reported S. 1728, as introduced as passed by the Senate the Judiciary Committee House Standard of No provision Whether there is Division D -- Whether the cost- Whether the Judicial substantial support Whether agencies benefit designation of a Review in the rulemaking substantially determination, risk rule as major or file for the factual complied with the assessment, or peer non-major clearly basis of agency principles for risk review was wholly and convincingly is actions, findings, or assessment and omitted shown to be conclusions; characterization erroneous whether agencies Whether the final rule observed procedural is arbitrary, Whether the final requirements; capricious, an abuse rule is arbitrary or whether statutory of discretion, or is capricious authority was unsupported by exceeded; or substantial evidence Whether an agency whether the agency where that standard failed to perform a interpreted the rule is otherwise provided required risk in a narrow way by law assessment 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 CRS-29 Provision 103rd Congress 104th Congress 104th Congress 105th Congress 105th Congress Johnston Amendments, S. 343, as reported by H.R. 9, as passed by the S. 981, as reported S. 1728, as introduced as passed by the Senate the Judiciary Committee House Risk-Based No provision Agencies must The President must OMB must contract No provision Priorities reflect risk-based identify relative with a scientific priorities in annual risks and cost- institution to budget requests effective risk compare risks to reduction strategies human health, safety, and opportunities and the environment; and obstacles to to study reflecting priorities methodologies for within regulatory comparing dissimilar programs to protect risks; and to health in a cost- recommend how to effective and cost- set priorities for reasonable manner reducing risks Agencies must use the results of the study to inform their annual budgets and strategic plans and performance plans ------------------------------------------------------------------------------ For other versions of this document, see http://wikileaks.org/wiki/CRS-RL30031