Environmental Risk and Cost-Benefit Analysis: A Review of Proposed Legislative Mandates, 1993-1998

Environmental Risk and Cost-Benefit Analysis: A Review of Proposed Legislative Mandates, 1993-1998

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 103 Congress;
rd
S. 343, as reported by the Committee on the Judiciary, in the 104th Congress; House-passed
H.R. 9 in the 104 Congress; S. 981, as reported by th
th
e Committee on Governmental Affairs,
in the 105 Congress, and S. 1728,
th
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 104 Congress; Divisions C and D of H.R.
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9, as passed by the House, in the 104 Congress; S. 981, as reported by th
th
e
Committee on Governmental Affairs, in the 105 Congress; and S. 1728, a
th
s
introduced, in the 105 Congress.
th
From the 103rd to the 105 Congress, proposals broadened in scope t
th
o
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 104 and 105
th
Congresses would have suspende
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d
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 104 Congress that would
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have authorized citizen petitions and judicial review or required risk-based budgeting
were eliminated or modified in bills of the 105 Congress.
th
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
104 Congress
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. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 3
105 Congress
th
. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 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, 104 , and 105
th
th
Congresses
. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 7
Table 2. Cost-Benefit Analysis in the 103rd, 104 , and 105
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Congresses
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. . . . . 11

Environmental Risk and Cost-Benefit Analysis:
A Review of Proposed Legislative Mandates,
1993-1998
Introduction
The 103rd, 104 , and 105
th
Congresses considered whether to require ris
th
k
analysis
1 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 106 Congress.
th
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.

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This report describes and compares selected provisions related to risk analysis
in key legislative proposals introduced from the 103rd through the 105 Congresses,
th
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 104 Congress;
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! Divisions C and D of H.R. 9, as passed by the House, in the 104 Congress;
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! S. 981, as reported by the Committee on Governmental Affairs, in the 105th
Congress, and
! S. 1728, as introduced, in the 105 Congress.
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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
103 Congress
rd
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.
104 Congress
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Three risk-related bills were reported to the Senate in the 104 Congress (S.
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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 104 Congress adjourned without enacting comprehensiv
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e
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.
105 Congress
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The 105
th 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-

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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,
104 , and 105
th
Congresses, beginning on page 11
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Applicability
From the 103rd Congress to the 104 Congress, proposed mandates for risk
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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 104 Congress would have targeted all federal agencies
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,
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 105 Congress would have required more
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or fewer risk analyses and economic analyses by individual agencies than those in the
104
th 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 105 Congress) would have covered rules for an
th
y
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 104 and
th
105 Congresses would have affected additional
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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. S. 1728 would have required analyse
4
s
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 103 Congress, targets onl
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y
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 104 Congress, S. 343 and H.R. 9 Division
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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 105 Congress, both S. 981, as reported, and S. 1728, as introduced, would
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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 105 Congresses.
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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.

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H.R. 9 and S. 343, as reported in the 104 Congress, would have include
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d
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 104 Con
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gress, 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 104 Congress, agencies would have been directed to us
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e
“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 105 Congress), but th
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e
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 (105 Congress) would have mandated analysis of net benefit
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s
explicitly. S. 2019 and S. 981 in the 105 Congress also would have required a cost-
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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 105t Congress, would have added requirements to analyze the
h
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 (105 Congress), all of the highlighted bills would hav
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e
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 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 105 Congresses would no
th
t
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 105 Congress, S. 981 provided still greater assurance that it
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s
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 Congres
th
s
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 104 Congress, relied most heavily on peer review, as it would have required
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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 104 Congress, H.R. 9 would have required peer
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review of analyses for major rules worth at least $100 million and of other analyses
designated by OMB. In the 105 Congress, S. 981 would have required peer review
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only for major rules. Neither the Johnston amendments in the 103rd Congress nor S.
1728 in the 105 had any provision regarding peer review or oversight by th
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e
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 104 Congress would have authorized citizen
th
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 105 Congresses did not provide for citizen petitions.
th
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 104 Congress, S. 343, as reported,
th
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 105 Congress, S. 981, as reported, would have permitted review o
th
f
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 105 Congress would have required
th
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 105 Congress had no comparable provision, and the Johnsto
th
n
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 104 Congress, the mor
th
e
comprehensive proposal in the 105 Congress, S. 981, as reported, would hav
th
e
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 103 , 104
rd
th, and 105th Congresses9
Provision
103 Congress
rd
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
103 Congress
rd
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
rules ; interpretive rules
11
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
103 Congress
rd
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
communications in
connection with
obligations of persons
outside the agency
support of
major rules
“significant” risk
addressing health,
Economic analyses for
documents
safety, or
new major rules, cleanup
plans, and reviews of
environmental risks,
existing rules; excepts
and other risk
analyses in emergencies,
analyses designated
for rules authorizing or
recognizing a commercial
by OMB; excepts
12
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
103 Congress
rd
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
103 Congress
rd
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
103 Congress
rd
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
103 Congress
rd
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
103 Congress
rd
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
103 Congress
rd
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
103 Congress
rd
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
103 Congress
rd
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
103 Congress
rd
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
disapproval
13
13 This provision was enacted by the 104th Congress in Public Law 104-121.

CRS-23
Provision
103 Congress
rd
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
103 Congress
rd
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
103 Congress
rd
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
103 Congress
rd
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
103 Congress
rd
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
103 Congress
rd
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
103 Congress
rd
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