Opportunity to submit written data views or arguments (at a minimum, and maybe oral presentation if the statute requires). Opportunity to participate There must be a reasonable comment window, which is – usually 60 to 90 days. Example NHTSA Standard 208 passive restraints (airbags vs. seatbelts). – – Consideration The agency must carefully consider the comments and materials received – from the interested parties. Considering comments received the comment period ended, the rule is arbitrary and capricious. A comment consider the need for a statute to conduct a statutory analysis, scientific analysis, economic analysis, etc. Scientific Analysis (pg. 18 of OL) agencies evaluate the risks of a – bad event occurring and develop responses. Risk Assessment The agency gathers info to evaluate the – probability and magnitude of the risk. Risk Management The application of political, social, and – economic policy to determine the response to the risk assessment. Margins of There is always a margin of error, so there is a – question of reliability. Trans-scientific Questions There are questions that can’t be – answered with science—there will always be a gap between knowledge and a scientific answer, because you can’t perform enough experiments. Uncertainty How did the agency handle the uncertainty? – Generally, you should make a conservative assumption; however, see Yucca Mountain. Legitimate Results The results may be illegitimate if the agency – had made a policy judgment before doing an assessment. Economic Analysis Use to assign a dollar amount to the benefits of a – regulation, and then compare to the costs. The quality is based on the assumptions. Valuation Methodology Did the agency use a willingness to pay or – a capital approach to determine the value of statistical lives? Critique either approach based on the arguments on page 22 of the OL Further Notes on Issues of Monetization. – Discount Rate Did the agency select a proper discount rate? It is – usually about 7% unless the statute states otherwise. Does the statute require something less than full cost/benefit analysis (pg. 26 of OL)? Example State Farm The Court used the hard look doctrine and said that the – – NHTSA did not carefully consider the comments regarding passive restraints.
Opportunity to submit written data views or arguments (at a minimum, and maybe oral presentation if the statute requires). Opportunity to participate – There must be a reasonable comment window, which is usually 60 to 90 days. Example – NHTSA Standard 208 – passive restraints (airbags vs. seatbelts). Consideration – The agency must carefully consider the comments and materials received from the interested parties. Considering comments received the comment period ended, the rule is arbitrary and capricious. A comment consider the need for a statute to conduct a statutory analysis, scientific analysis, economic analysis, etc. Scientific Analysis (pg. 18 of OL) – agencies evaluate the risks of a bad event occurring and develop responses. Risk Assessment – The agency gathers info to evaluate the probability and magnitude of the risk. Risk Management – The application of political, social, and economic policy to determine the response to the risk assessment. Margins of – There is always a margin of error, so there is a question of reliability. Trans-scientific Questions – There are questions that can’t be answered with science—there will always be a gap between knowledge and a scientific answer, because you can’t perform enough experiments. Uncertainty – How did the agency handle the uncertainty? Generally, you should make a conservative assumption; however, see Yucca Mountain. Legitimate Results – The results may be illegitimate if the agency had made a policy judgment before doing an assessment. Economic Analysis – Use to assign a dollar amount to the benefits of a regulation, and then compare to the costs. The quality is based on the assumptions. Valuation Methodology – Did the agency use a willingness to pay or a capital approach to determine the value of statistical lives? Critique either approach based on the arguments on page 22 of the OL – Further Notes on Issues of Monetization. Discount Rate – Did the agency select a proper discount rate? It is usually about 7% unless the statute states otherwise. Does the statute require something less than full cost/benefit analysis (pg. 26 of OL)? Example – State Farm – The Court used the hard look doctrine and said that the NHTSA did not carefully consider the comments regarding passive restraints.
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