to Congress on the Costs and Benefits
of Federal Regulations
III. Estimates of Benefits and Costs
of "Economically Significant" Rules
In this chapter, we examine the benefits and costs of "each rule that is likely to have a gross annual effect on the economy of $100,000,000 or more in increased costs," as required by Section 645(a)(2). We have included in our review those final regulations on which OIRA concluded review during the 12-month period April 1, 1996, through March 31, 1997. We chose this time period to ensure that we covered a full year's regulatory actions as close as practicable to the date our report is due, given the need to compile and analyze data and publish the report for public comment. In addition, we thought it would be useful to adopt a time period close to that used for the annual OMB report required by the Unfunded Mandates Reform Act of 1995.
The statutory language categorizing the rules we are to consider for this report is somewhat different from the definition of "economically significant" rules in Executive Order 12866 (Section 3(f)(1)). It also differs from similar statutory definitions in the Unfunded Mandates Reform Act and Subtitle E of the Small Business Regulatory Enforcement Fairness Act of 1996 -- Congressional Review of Agency Rulemaking. Given these varying definitions, we interpreted Section 645(a)(2) broadly to include all final rules promulgated by an Executive branch agency that meet any one of the following three measures:
designated as "economically significant" under Section 3(f)(1)
of Executive Order 12866;
designated as "major" under 5 U.S.C. 804(2) (Congressional Review
- rules designated as meeting the threshold under Title II of the Unfunded Mandates Reform Act (2 U.S.C. 1531 - 1538).
We did not include rules issued by independent regulatory agencies because we do not review their rules under Executive Order 12866. In any case, we believe that few of their individual regulations meet the statutory criteria of Section 645(a)(2).
During the time period selected, OIRA reviewed 41 final rules that met these criteria. (Table 6) For 9 of these 41 final rules, OIRA also reviewed a proposed rule during the time period. (OIRA reviewed 13 additional proposed rules that met one or more of the three criteria listed above.(1) ) Of the 41 final rules, USDA submitted 12; HHS submitted 8; EPA submitted 7; and the remainder were from the Departments of the Commerce (1), Housing and Urban Development (2) Interior (2), Justice (1), Labor (2), and Transportation (3) and the Social Security Administration (2). Also included is one multi-agency rule from HHS, DOL, and Treasury. These 41 rules represent about 15% of the final rules reviewed by OIRA during this period, and less than 1% of all final rules published in the Federal Register between April 1, 1996, and March 31, 1997. Nevertheless, because of their greater scale and scope, we believe that they represent the vast majority of the costs and benefits of new Federal regulations during this period.2. Overview
As noted in Chapter I, Executive Order 12866 "reaffirms the primacy of Federal agencies in the regulatory decision-making process" because agencies are given the legal authority and responsibility for rulemaking under both their organic statutes and certain process-oriented statutes, such as the Administrative Procedure Act, the Unfunded Mandates Reform Act, and the Small Business Regulatory Enforcement Fairness Act. The Executive Order also reaffirms the legitimacy of centralized review generally and in particular review of the agencies' benefit-cost analyses that are to accompany their proposals. The Executive Order recognizes that in some instances the consideration of benefits or costs is precluded by law. For example, the National Ambient Air Quality Standards under the Clean Air Act are to be health-based standards set by EPA solely on the basis of the scientific evidence. A variation is the Occupational Safety and Health Act, where health standards must be based on significant risks to the extent they are economically and technologically feasible. However, the Executive Order requires agencies to prepare and submit benefit-cost analysis even if those considerations are not a factor in the decision-making process. Again, it is the agencies that have the responsibility to prepare these analyses, and it is expected that OIRA will review (but not redo) this work. And, as noted above, the costs and benefits identified may be attributable solely to the regulation in question or they may in fact be attributable just as much to the Act of Congress that they are implementing.
Reviewing for this report the benefit-cost analyses accompanying the 41 final rules listed in Table 6, we found a wide variety in the type, form, and format of the data generated and used by the agencies. For example, agencies developed estimates of benefits, costs, and transfers that were sometimes monetized, sometimes quantified but not monetized, sometimes qualitative, and, most often, some combination of the three. Generally, the boundaries between these types of estimates are relatively well-defined.
As discussed above, all monetized estimates are, by definition, given in dollars and permit ready comparison and aggregation. Monetized estimates of effects are what is most generally thought of as the basis of benefit-cost analysis. Even when such figures are available, however, care must be taken when interpreting them because they depend for comparability on a number of distinct elements. Specifically, monetized estimates consist of: (1) the dollar value itself; (2) the base year of the dollar used; (3) the initial year in which the effects occur; (4) the final year after which the effects disappear; (5) the discount rate used (whether explicitly or implicitly) to convert future into current values (or vice versa); and (6) the format in which the monetized value is represented.
"Format" means the characterization of the monetized or quantified effects over time. In the rules on which we are reporting, we found that agencies used a variety of formats:
values, which spread out variable effects into yearly sums that
are financially equivalent to the actual temporal schedule,
regardless of how "lumpy" it might be;
values, which convert over time into an immediate lump-sum;
annual values, in which effects have been estimated (or
are assumed) to be fixed each year over the time horizon in
which the regulation applies;
formats, such as varying annual values or values reported only
for selected years, which can be converted into annualized or
present value format under certain specified conditions and
- Unknown formats, which cannot be interpreted without additional information.
From the perspective of benefit-cost analysis, annualized and present value formats are always preferred because they permit aggregation and comparisons within and across regulatory actions. Constant annual values are slightly less desirable insofar as they require the additional step of discounting to permit such aggregation and comparison. Constant annual values are typically found in monetized cost estimates involving federal budget outlays, and in quantified benefit estimates where agencies have chosen not to discount; aggregation and comparison within and across regulations generally cannot be performed without a common discounting methodology. Where an agency's estimation methodology follows an unknown format, further research needs to be performed to ascertain how to convert or reconstruct annualized or present value estimates.
Quantified estimates may take the form of a variety of different units, but they share in common a numeric measure. Generally, quantified estimates of benefits, costs, and transfers must be interpreted with the same elements noted above in mind. The most important difference, of course, is that quantified estimates are expressed in units other than dollars. Such estimates may be aggregated only if they are presented in the same or similar units. Also, a quantified estimate should identify the applicable time period (e.g., tons of pollution controlled per year, number of endangered species protected from extinction per decade). Quantified estimates that lack reference to the time periods to which they apply may be highly misleading, and should be converted to similar time periods to be comparable. Indeed, even when estimates of similar type include explicit reference to their underlying time periods, care must be taken when aggregating or comparing them because of the risk of summing estimates based on different time periods or inconsistent base years.
contrast, qualitative estimates may not have any units
at all, or they may be expressed in units that do not lend themselves
to simple comparisons. As has often been observed, it is more frequently
the case that costs are monetized and benefits are more often quantified
or presented in qualitative form. Qualitative effects should be
evaluated in terms of their uniqueness, reversibility, timing, and
geographic scope and severity. These effects are the most difficult
to interpret, and this may lead some to give them short shrift.
The fact that an effect has not been monetized or quantified does
not, however, necessarily mean that it is small or unimportant.
In discussing agencies' descriptions of qualitative effects, we
use the first year in which such effects are expected to occur where
it can be determined.
Qualitative effects must be used with care for other reasons as well. Because they tend to be general and descriptive, they may be broader than the incremental effects of the particular regulation being analyzed. For example, in developing a rule designed to address a particular safety problem, an agency may describe the extent of the problem -- that is, so many persons injured per year from this particular cause. While important in estimating the benefits of the rule, this figure itself is not a benefit estimate unless and until it is linked to the likely effectiveness of the proposed rule. Finally, qualitative estimates cannot be aggregated at all because they do not contain units that permit arithmetic operations. In addition, not infrequently they fail to contain relevant information about the period of time during which they apply.
Cost-effectiveness measures and break-even analyses, which are frequently used in regulatory analyses, are not equivalent to either monetized or quantified estimates. Unlike benefits and costs, which are expressed with time as the explicit or implicit denominator, cost-effectiveness estimates (e.g., dollars per ton of pollution controlled) are expressed in terms of cost per unit of benefit -- that is, as ratios in which "cost" is the numerator and "benefit" is the denominator. Frequently, such estimates are quite useful, particularly when comparing alternative methods of achieving a predetermined objective. Nevertheless, cost-effectiveness estimates cannot be compared with either cost or benefit estimates, nor can they themselves be aggregated in any manner.
Similarly, break-even analyses reveal the minimum level of benefits necessary for net benefits to be positive. For example, if a regulation is estimated to prolong one "statistical life" at a cost of $X million, break-even analysis reveals that if society's willingness-to-pay to prolong one statistical life is greater than $X million, then the benefit of the regulation exceeds its cost. Likewise, if we know that society's willingness-to-pay to prolong one statistical life is $X million, and that the regulation will cost $X million then break-even analysis reveals that benefits exceed costs if more than one statistical life is saved. While this form of analysis is often useful to decision makers, it does not address either the absolute or marginal magnitude of benefits and costs.
Social Regulation. Of the 41 rules reviewed by OIRA, 21 are regulations requiring substantial additional private expenditures and/or providing new social benefits. (See Table 7). EPA issued 7 of these rules; USDA issued 4; HHS and DOT each issued 3; and the remaining 5 were spread among DOC, DOI, and DOL. Agency estimates and discussion are presented in a variety of ways, ranging from an extensive qualitative discussion of benefits, e.g., USDA's rules implementing the 1996 Farm Bill, to a more complete benefit-cost analysis, e.g., the HHS rule on the Sale and Distribution of Tobacco.
Benefits Analysis. Of the 21 rules listed in Table 7, agencies provided monetized benefit estimates in eight cases. Monetized benefit estimates included items such as: (1) FDA's estimated $275 to $360 million per year in annualized cost savings from its deregulatory food labeling rule (these are savings in the costs associated with compliance with labeling requirements on low-volume products that FDA estimated would be enjoyed by small businesses); (2) FDA's estimated $9.2 to $10.4 billion per year reduced incidence of morbidity and mortality from its rule restricting cigarette sales and marketing; (3) EPA's estimated $174 million per year in reduced damage to chemical and other facilities from its accidental release prevention rule; and (4) USDA's estimated $2 billion per year in the value of improved soil productivity, water quality, and wildlife from rules implementing its Conservation Reserve Program.
An innovative feature of FDA's estimate for monetized benefits from the tobacco rule is explicit recognition of the increases in longevity, the timing of these increases, and their value. In part of its benefits analysis, FDA estimated more than 900,000 years of life would be gained by each cohort (about four years per would-be smoker). FDA discounted these life-years to account for the delay associated with smoking related health effects, and then monetized the life-years gained at $117,000 per life-year, an estimate derived from academic literature.
In six cases, agencies provided benefit estimates that were quantified but not monetized. These included: (1) OSHA's estimated 31 cancer cases per year avoided and three deaths per year avoided from acute central nervous system and carboxyhemoglobinemia effects from its methylene chloride rule; (2) NHTSA's estimated 83 to 101 fatalities prevented and 5,100 to 8,800 fewer serious injuries (primarily to children) over the lifetime of one model year's vehicles from its airbag depowering rule; and (3) EPA's estimated number of tons of hydrocarbons, carbon monoxide, and nitrogen oxide emissions which it expected would be reduced annually from several of its rules. In one case, the medical device rule, FDA provided some of its benefit estimates in monetized form; other benefits were quantified.
In a number of cases where agencies reported monetized or quantified benefit estimates, they also provided a qualitative description of unquantified effects. For example, DOT discussed the possibility that its railroad worker protection rule could increase the carrying capacity of the nation's railroads and boost railroad employee morale. OSHA reported that its methylene chloride rule would lower exposure for as many as 30,000 to 54,000 workers, reducing the risk of adverse central nervous system effects (other than death) of carboxyhemoglobinemia every year. FDA reported that its medical device rule would yield additional benefits in the form of fewer injuries in other less severe categories (that were not quantified by the FDA), reduced inconvenience to users and/or patients, and reduced burden on medical personnel in terms of having to repeat treatments, replace devices, and complete the paperwork and reporting associated with medical device failures. EPA reported that the accidental release prevention rule would result in efficiency gains by providing the public with additional information on accident prevention plans for manufacturing facilities and by improving the transfer and adoption of new technologies between industries.
Finally, in seven cases, agencies reported neither monetized nor quantified benefit estimates. In some (but not all) of these cases, the agency provided a qualitative description of benefits. For example, USDA's analysis of the 1996 Farm Bill program rules included a qualitative discussion of the benefits of increased efficiency due to the additional flexibility the rule provided for farmers to decide which crops to plant. In its rule establishing training requirements for lead abatement contractors, workers, etc., EPA discussed in qualitative terms the value to consumers of being able to purchase abatement services of reliable quality.
Cost Analysis. In 16 of the 21 cases, agencies provided monetized cost estimates. These include such items as: (1) USDA's estimated $900 million per year in consumer "deadweight" losses from restrictions on farm output under its Conservation Reserve Program; (2) EPA's estimated $138 million per year for gasoline detergent additives under its deposit control gasoline rule; and (3) OSHA's estimated $101 million per year to reduce occupational exposures to methylene chloride. For 2 deregulatory rules -- FDA's food labeling rule and EPA's municipal solid waste landfill financial assurance rule -- agencies' monetized cost estimates were very small or zero.
In four of the 21 cases, agencies provided estimates of non-monetized, quantitative effects that were intended to better inform decision makers, but which were not identified as benefit or cost estimates per se. For example, NHTSA estimated that its airbag depowering rule would result in 50 to 431 more fatalities and an increase of 171 to 553 serious chest injuries (primarily to adults not wearing seatbelts) over the lifetime of one full model-year of vehicles, and DOI estimated that duck hunters spend over $400 million per year on duck-hunting activities.
Seven (7) of these 21 rules have positive net monetized benefits -- that is, the estimated monetized benefits exceed the estimated monetized costs of the rules. For example, FDA estimated its tobacco rule would result in $9 to 10.2 billion per year in net monetized benefits (benefits minus costs). EPA estimated its Accidental Release Prevention rule would generate $77 million per year in net monetized benefits. For the remaining 15 rules, agency analysis did not provide enough information to allow an estimate of net monetized benefits. Five (5) of the rules provided quantified estimates of the expected benefits in terms of tons of emissions reduced or injuries avoided; but in those cases, the agencies did not assign values to these effects. Five (5) additional rules identified qualitative benefits associated with the rule; but in these cases, the agencies did not develop any quantified estimates of the likely magnitude of these effects. Finally, in five cases, we classified a rule as economically significant although little economic data on the effects of the rule existed. These deserve comment:
USDA Karnal Bunt: Karnal bunt is a fungal disease that infects wheat, and during the past year was closely controlled to prevent potential losses in wheat exports. Fear of widespread Karnal bunt infestation led USDA's Animal and Plant Health Inspection Service (APHIS) to take several emergency quarantine actions beginning in March 1996. The quarantine severely restricted the movement of wheat grown in Arizona, two counties in Southern California, New Mexico, and portions of west Texas. It also directed the plowing under of several thousand acres of wheat and instituted mandatory disinfection procedures for combines and wheat handling equipment. APHIS instituted these procedures on an emergency basis to prevent the spread of the disease. These restrictions were known to be expensive, but estimates of how expensive were not developed at the time the actions were taken.
In October 1996, APHIS issued the rule included on Table 7, which continued the quarantine and its restrictions, and established provisions for compensating wheat farmers and handlers who suffered losses. The rule was designated economically significant because, although economic data were not then available, both agency and OIRA staff agreed that the impacts associated with the rule were significant. For the same reason, it was designated "major" under SBREFA. It was important to issue this rule promptly, so APHIS agreed that it would conduct a Regulatory Flexibility Analysis and an economic analysis after the rule was published. In an analysis developed after the time period of our report, USDA estimated one-year costs totaling about $42 million. The Federal government paid $24 million to affected parties to compensate for their losses. However, the Department acknowledged that other potentially significant costs had not been formally estimated. The Department estimated the benefits of the rule to be approximately $2 billion -- based upon the potential loss of export markets if our trading partners chose not to buy U.S. wheat -- clearly making it an economically significant rule.
DOI Migratory Bird Hunting (2 rules): These are unusual rules in that they are permissive rather than restrictive -- that is, migratory bird hunting is prohibited absent these annual regulations which allow hunting, setting bag limits and other controls on both early and late season hunts. Thus the rules permit spending rather than requiring the expenditure of private resources. DOI reports that the National Survey of Fishing, Hunting, and Wildlife Associated Recreation indicated that expenditures by migratory bird hunters (exclusive of licenses, tags, permits, etc.) totaled $686 million in 1991. Based on this estimate, DOI estimated expenditures by duck hunters would be over $400 million per year in 1995. However, this figure is not a social benefit in the commonly used sense of the term. DOT Light Truck CAFE: Each year DOT must establish a Corporate Average Fuel Economy (CAFE) standard for light trucks, including sport-utility vehicles and minivans, (DOT also sets a separate standard for passenger cars). For the past two years, however, appropriations language has prohibited NHTSA from spending any funds to change the standards. In effect, Congress has frozen the light truck standard at its existing level of 20.7 miles per gallon (mpg) and has prohibited NHTSA from analyzing effects at either 20.7 mpg or alternative levels. Although benefits and costs are not estimated, DOT's experience in previous years indicates that they may be substantial. Over 5 million new light trucks are subject to these standards each year, and the standard, at 20.7mpg, is binding on several manufacturers; some are just above the standard and at least one is currently below 20.7 mpg. Because of these likely substantial effects, the rule was designated as economically significant even though analysis of the effects was prohibited by law. DOC Encryption: Commerce's encryption rule allows the exportation of more effective encryption products, subject to certain conditions such as the development of a key management infrastructure. Although quantitative estimates are not available, the rule is economically significant, because, as Commerce's analysis notes:
"The initiative addresses important foreign policy and national security concerns identified by the President. Export controls on cryptographic items are essential to controlling the spread abroad of powerful encryption products which could be harmful to critical U.S. national security, foreign policy and law enforcement interests. This initiative will preserve such controls and foster the development of a key management infrastructure necessary to protect important national security, foreign policy and law enforcement concerns." (61 FR 68573).
Aggregate Effects. As noted above in chapter II, the substantial limitations of the available data on the benefits and costs of this set of rules make it virtually impossible to develop an aggregate estimate of benefits and costs for even a single year's regulations. First, there are no quantified or monetized estimates for five of the rules. In addition, since many effects are not expressed in monetized terms, there is a problem of apples and oranges in aggregating estimates. Eight (8) of the rules listed in Table 7 have quantified estimates of significant effects. Some of the quantified effects -- premature deaths and serious injuries avoided -- are not unique to these rules but rather are frequently identified in the RIAs for a variety of rules, and other agencies have assigned monetized estimates to these outcomes. In any event, the different quantitative effects cannot be summed because they are not expressed in common units. Finally, when effects are only described in a qualitative way, the aggregation problem becomes all the more problematic.
Because of the substantial variation in the presentation of agency estimates and the differences in their discussion of benefits and costs, Table 8 takes some initial steps in presenting agency estimates in a more consistent way. This presentation re-formats the monetized benefit and cost information on a rule-by-rule basis to enhance their comparability. One key factor involves discounting where the timing of effects matters. In order to make the agency estimates more consistent, we performed some basic adjustments to agency estimates. For example, the FRA presented monetized benefit and cost numbers in the form of a present value over ten years ($240 million in benefits and $229 million in costs). We converted these to equal annual payments of $33 million and $32 million respectively, using the seven percent discount rate FRA used to generate the present value estimates. We performed a similar procedure for EPA's Lead-Based Paint rule, using the three percent discount rate the agency used in calculating the rule's $1.114 billion present value cost over 50 years. In the case of EPA's Federal Test Procedure rule, the agency reported emission reductions for only four specific years (2005, 2010, 2015, and 2010); in order to facilitate comparisons with other emission-reducing rules, we used a linear interpolation procedure to infer emission reductions in the interim years, and then generated an equivalent annual stream of emission reductions.
Any comparison or aggregation across rules must also consider a number of factors which the presentation in Table 8 does not address. First, for example, these rules may use different baselines in terms of the regulations and controls already in place, the initial year for the rule, and the time period over which the rule was considered to be effective. In addition, these rules may well treat uncertainty in different ways. In some cases, agencies may have developed alternative estimates reflecting upper and lower bound estimates. In other cases, the agencies may offer a mid-point estimate of benefits and costs, and in some cases the agency estimates may reflect only upper bound estimates of the likely benefits and costs. Also, in order for comparisons or aggregation to be meaningful, benefit and cost estimates should correctly account for all substantial effects of regulatory actions, including potentially offsetting effects, which may or may not be reflected in the available data.
A final reason that any regulatory accounting effort has limits is the treatment of the effects of regulations on distribution or equity. None of the analyses addressed in this report provides quantitative information on the distribution of benefits or costs by income category, region, or any other factor. As a result, there is no basis for quantifying distributional or equity impacts.
Transfer Regulations. Of the 41 rules listed in Table 6, 20 were rules necessary to implement Federal budgetary programs. (See Table 9.) The budget outlays associated with these rules generally provided "transfers" or reduced "transfers" to program beneficiaries, although one rule, the DOJ rule on expedited removal of aliens, required the expenditure not the "transfer" of additional Federal dollars. Of the remaining 19, 8 are USDA rules that implement federal appropriations regarding agricultural and food stamp policies; 7 are HHS and SSA rules that implement Medicare, Medicaid, and Social Security policy; 2 are HUD rules associated with Federal mortgage protections; 1 is a DOL rule associated with Federal service contracts; and 1 is a joint HHS, Treasury, and DOL action setting standards for health insurance portability group health plans.
The transfers arising from these programs (with the exception of the DOJ rule) represent payments from one group to another (often from the Federal government to program beneficiaries, but also within beneficiary groups and from recipients back to taxpayers) that redistribute wealth; they are not social costs (or social benefits) and do not directly reflect the "opportunity cost" of resources used or benefits foregone. Social costs may arise indirectly from these transfers, however, because they must be financed through mechanisms -- for example, income and payroll taxes -- that affect the use of real resources. Similarly, social benefits may arise from these transfers if the beneficiaries realize marginal benefits from the payments that are greater than the loss for those who finance the payments (i.e., taxpayers).
Estimates of the magnitude of the social costs and benefits associated with these rules are typically not available. As a practical matter, the transfers arising from these rules are a product of the Federal program authorization and budget appropriations processes, and the social costs involved are generally viewed as subsidiary to the transfers involved. For these reasons, the Best Practices document specifically notes that instead of a complete benefit-cost analysis, a different form of regulatory analysis may be appropriate for regulations implementing these Federal programs.
1. These proposals include several particularly significant proposals reviewed by OIRA: EPA's two proposals in November 1996 to revise the National Ambient Air Quality Standards for Particulate Matter and Ozone; EPA's proposal in the summer of 1996 expanding the industries covered by the Toxic Release Inventory; and FDA's January 1997 proposal regarding Animal Proteins Prohibited in Ruminant Feed. These proposals are not discussed because they were not yet final during the time frame on which we are reporting.