oversight

Bureau of Land Management and Forest Service: Information on the Time Spent on Major and Significant Rules

Published by the Government Accountability Office on 1997-08-20.

Below is a raw (and likely hideous) rendition of the original report. (PDF)

      United States
GAO   General   Accounting
      Washington,
                             Office
                     D.C. 20548

      Resources,    Community,   and
      Economic     Development   Division



      B-277622

      August 20,1997

      The Honorable Frank H. Murkowski
      Chairman, Committee on Energy and
         Natural Resources
      United States Senate

      Subject: Bureau of Land Management and Forest Service:                   Information   on the
      Time Scent on Major and Si@cant   Rules

      Dear Mr. Chairman:

      As requested, we are providing you with information on the time spent by the
      Department of the Interior’s Bureau of Land Management (BLM) and the U.S.
      Department of Agriculture’s Forest Service developing rules as provided by the
      Administrative Procedure Act, as amended. Specifically, we are responding to
      the following questions:

      - From October 1988 through April 1997, how many rules did the Forest
        Service and BLM initiate or complete and how many were considered major
        or significant as defined by Executive Orders 12291 and 12866, respectively?

      - How much time did BLM and the Forest Service spend on those rules
        identified as major or significant?

      - What factors contributed            to the amount of time spent on the major and
        significant rules?

      You asked similar questions about the Council on Environmental Quality.
      However, because the Council has not issued a rule since April 1986, your
      office agreed that we would not include information about the Council in this
      report.




                                                            GAO/RCED-97-226R     Time Spent on Rules
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BACKGROUND

The Administrative Procedure .A&, as amended, sets out, among other things,
the basic requirements that federal agencies must follow for rulemaking. The
act defines a rule as the whole or part of an agency’s statement. of general or
particular applicability and future effect designed to implement, interpret, or
prescribe law. Generally, the act requires agencies to publish in the Federal
Register a notice that includes (1) a statement of the time, place, and nature of
the rulemaking; (2) the authority under which the rule is published; and (3)
either the terms or substance of the proposed rule or a description of the
subjects or issues involved. The act also requires agencies to provide the
public an opportunity to comment in writing on proposed rules. In carrying
 out the rulemaking process, agencies publish in the Federal Retiter one or
 more of the following:

- An Advance Notice of Proposed Rulemaking stating that the agency is
  considering a regulatory action and asks for public comment on the issues
  and options discussed. The agency issues an advance notice when it
  believes that it needs to gather more information before proceeding to a
  Notice of Proposed Rulemaking.

- A Notice of Proposed Rulemaking that describes and solicits public
  comments on a proposed regulatory action.

- An Interim Final Rule that is used where prior notice and opportunity to
  comment are considered impractical, unnecessary, or contrary to public
  interest. Generally, BLM and the Forest Service will provide the public an
  opportunity to comment, on an Interim Final Rule and, after comment,
  publish a final rule.

- A Final Rule that includes a statement that the rule will take effect in 30
  days. According to BLM and Forest Service officials, the Administrative
  Procedure Act exempts land management agencies from giving prior notice
  before a final rule takes effect. They also said that it is the policy of both
  Departments to allow the public an opportunity to comment prior to the
  adoption of a final rule.

 Executive Order 12291, February 17, 1981, defined a major rule as one that
 would have (1) an annual effect on the economy of $100 million or more; (2) a
 major increase in costs or prices for consumers, individual industries, federal,
 state, or local governments, or geographic regions; or (3) a significant adverse
 effect on competition, employment, investment, productivity, innovation, or on


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the ability of U.S.-based enterprises to compete in domestic or export markets.
Under Executive Order 12291, the Office of Management and Budget (OMB)
reviewed all rules generated by agencies before they were published in the
Federal Register.

Executive Order 12866, September 30, 1993, supersedes Executive Order 12291
and defines a significant regulatory action as one that (1) may have an annual
effect on the economy of $100 million or more or adversely affect the
economy, productivity, competition, jobs, the environment, public health or
safety, or state, local, or tribal governments; (2) creates a serious inconsistency
or interferes with an action taken or planned by another agency; (3) materially
alters the budgetary impact of entitlement, grants, user fees, or loan programs;
or (4) raises novel legal or policy issues. Executive Order 12866 focuses
OMB’s review only on the most important rules that have the greatest impact
on the public. Agencies recommend and OMB decides which rules are
significant on the basis of their economic, social, or legal importance.    OMB
reviews only those rules determined to be significant.

RULES UNDERTAKEN         OR COMPLETED

Between October 1988 and April 1997, BLM initiated or completed 168 rules;
the Forest Service initiated or completed 93.l BLM had 7 rules and the Forest
Service had 10 rules that met the definitions of major or significant. All seven
of BLM’s rules were significant. According to officials within BLM’s
Regulatory Affairs Group, the agency has not had any major rules since
October 1988. Of the Forest Service’s 10 rules, 1 was designated as major; the
remaining 9 were designated as sig,ni&zant.

LENGTH OF TIME SPENT ON MAJOR OR SIGNIFICANT                  RULES

We found that BLM spent from more than 2 years to almost 6 years for the
four significant rules that it completed and more than 9 years for one rule that
it subsequently withdrew. As of July 31, 1997, BLM had been working on one
significant rule for almost 4 years and on another for almost 9 years. Table 1
provides information on the time spent by BLM on the seven significant rules.




‘The number of rules for BLM includes oil and gas orders because the agency
regards them as equivalent to rules. The number of rules for the Forest
Service excludes policies, directives, and announcements of periodicaIIy
required reviews of rules.

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             B-277622

Table 1: Time Spent bv BLM on Significant Rules Since October 1988


 Title of rule”                        Date started    Status/date               Elapsed timeb
 Sales of Forest Products              April 1987      Withdrawn;     I O/I/96   9 years 6
                                                                                 months
 Grazing Administration                May 1993        implemented;              2 years 3
                                                       8/21/95                   months
 Rights-of-Way for                     May 1993        implemented;              2 years 7
 Communication Uses                                    12/I 3/95                 months
 Logical Mining Units                  November        Ongoing                   3 years 8
                                       1993                                      monthsC
 Waiver, Suspension, or                December        Implemented;              2 years 3
 Reduction of Rental, Royalty,         1993            3/I I I96                 months
 or Minimum Royalty
  Coal Management                      October 1988    Ongoing                    8 years 9
                                                                                  monthsC
  Mining Claims Under the              July 1991       Implemented;               5 years 8
  General Mining Laws                                  3/3/97                     months

aEnclosure I provides the complete title and regulatory identification    number for these rules.

bThe time spent is an approximation since BLM does not maintain information showing when staff
started to work on the rules. Therefore, we had to rely on staff recollections or information in BLM’s
files to derive a start date.

‘Time spent as of July 31, 1997.

                  The Forest Service spent from more than 2 years to 5 years for the three
                  significant rules that it completed and 8 months to almost 9 years for the three
                  rules that it subsequently withdrew. As of July 31, 1997, the Forest Service had
                  been working on three significant rules for more than 6 to almost 10 years. Table
                  2 provides information on the time spent by the Forest Service on the 10 rules.




                                                                     GAOKRCED-97-226R   Time Spent on Rules
                 B-277622

Table 2: Time Spent by the Forest Service on Major or Sianificant Rules Since October 1988


    Title of rule”                      Date started    Status/date           Elapsed timeb
    Management of Grazing Use           December        Withdrawn;            8 years 10
    Within Rangeland Ecosystems         1987            1O/l I96              months
    Grazing Fees: Eastern and           December        Implemented;          2 years 3
    Southern Regions                    7987            3/l /90               months
    National Forest Prohibitions        October         Ongoing               9 years 9
                                        7987                                  monthsC
    Land Uses and Prohibitions;         May 1992        Implemented;          3 years 4
    Noncommercial Group Uses                            g/30/95               months
    National Forest System Land and     March 1989      Ongoing               8 years 4
    Resource Management Planning                                              monthsC
    Cancellation     of Timber Sale     June 1989       Ongoing               8 years 2
    Contracts                                                                 monthsC
    Federal Timber Export and           August 1990     Implemented;          5 years
    Substitution Restrictions                           9/8195d
    State and Private Forestry          April 1991      Ongoing               6 years 3
    Assistance Stewardship Incentive                                          monthsC
    Program
    Range Management,        Grazing    December        Withdrawn; 2/3/95     7 years 2
    Fees                                7987                                  months
    Range Management Grazing            July 1994       Withdrawn; 2/3/95     8 months
    Fees in the West; Qualification
    Criteria

aEnclosure I provides the complete title and regulatory identification number of these rules.

bThe time spent is an approximation since the Forest Service does not maintain information showing
when staff started to work on the rules. Therefore, we had to rely on staff recollections or information
in the Forest Service’s files to derive a start date.

l‘ime    spent as of July 31, 1997.

dln fiscal years 1996 and 1997, the Congress imposed a moratorium on the agency’s implementing
this rule.




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B-277622

FACTORS CONTRIBUTING TO THE TIME SPENT
ON MAJOR OR SIGNIFICANT RULES

On the basis of our discussions with the principal authors as well as other
agency officials, some of the reasons for the time spent on the rules shown in
tables 1 and 2 include

- pending legislation-for example, BLM delayed moving forward on a mining
  claims rule and the Forest Service delayed moving forward on a grazing rule
  while the Congress considered new legislation in these areas;

- congressional actions in fiscal years 1996 and 1997 that imposed a
  moratorium on both agencies moving forward with regulations related to the
  export of federal timber;

- presidential moratoriums in January and April 1992 that lasted until August
  28, 1992, and a January 1993 postponement of regulations until the sub-
  Cabinet-level official or agency head had been confirmed by the Senate; for
  BLM, the postponement lasted until May 18, 1993, and for the Forest
  Service, until May 12, 1993;

- the lack of full-time agency staff with subject matter expertise to work on
  ruIes; according to both BLM and Forest Service officials, staff work on
  rules along with carrying out their other responsibilities.

In addition, BLM regulatory affairs officials said that low staff levels and
competig priorities affected the time spent on rules. For the entire Bush
administration and the first 2 years of the Clinton administration, BLM had
only two regulatory specialists, one of whom spent almost 2 years working on
range reform while the other specialist handled all other activities, including
congressionally directed rules that did not qualify as major or significant.
Forest Service regulatory personnel in the Directives and Regulations Branch
 said that the downsizing of the Forest Service staff had resulted in the loss of
the agency’s most experienced staff and that the agency had difficulty in
 replacing the lost expertise for rules already in progress. They also noted that
 the Forest Service had to redirect its regulatory resources to respond to the
 Regulatory Reform Phase II Initiative of the National Performance Review,
 which delayed some rules under development.

 Enclosure I provides information on the reasons for the time spent by BLM
 and the Forest Service on the major or significant rules proposed since
 October 1988.


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AGENCY COMMENTS

We provided a draft of this report to the Departments of Agriculture and the
Interior for review and comment, We met with officials of the agencies,
including BLM’s Deputy Director and the Forest Service’s Branch Chief,
Directives and Regulations Branch. The agencies agreed with the information
presented but offered the following comments.

According to BLM, it did not work each day on the rules shown in table 1.
BLM noted that a certain level of uncertainty exists with any rule, staff do not
necessarily begin to work on a rule on a specific date, and staff may work on
more than one rule concurrently.      Although we recognize that the time shown
in table 1 reflects total calendar time, BLM has no mechanism by which we
could determine the actual time spent on the rules we reviewed. Lacking such
information, we could report only total calendar time. BLM also noted that it
must consider and assess various factors at each step in the process. If the
proposed rule is determined to have an adverse effect, then BLM rethinks the
rule and how to proceed with it. BLM noted that increasing the number of
staff involved with developing rules would not necessarily expedite the
process. Rather, it was an issue of staff effectively utilizing their time and
making difficult choices between all work priorities. According to BLM, speed
is not necessarily a good measure when discussing rules. BLM believes that
the checks and balances and slowness of the process is an asset (i.e., public
involvement and comment is a vital aspect of the process and takes time).
BLM acknowledged that it should strive to improve the rulemaking process by
focusing attention on priority rules and dropping low priority rules. We agree
these are actions that BLM could take to facilitate the issuance of rules. At
the tune of our review, however, BLM had not done so.

The Forest Service noted that the time shown in table 2 reflects total calendar
time for each rule and does not reflect the time that Forest Service staff
actually worked on the rule while juggling other priorities and responsibilities.
Although we recognize that the time shown in table 2 reflects total calendar
time, the Forest Service has no mechanism by which we could determine the
actual time spent on the rules we reviewed. Lacking such information, we
could report only total calendar time. The Forest Service also noted that since
October 1988 it has published Eve proposed policies that OMB designated as
significant under Executive Order 12866. ‘As a result of the significant
designation, the Forest Service had to conduct a rigorous cost and benefit
analysis related to the policies, which affected the time spent by agency staff
on preparing and issuing rules. We recognize that some Forest Service policies



7                                             GAO/RCED-97-226R   Time Spent on Rules
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were designated significant; however, the policies were outside the scope of
this review.



We obtained information on all rules that had been initiated or completed by
BLM and the Forest Service since October 1988 from the semiannual Unified
Agenda of Federal Regulations published by the General Service
Administration’s  (GSA) Regulatory Information Service Center for the Office of
Information and Regulatory Affairs within OMB. As shown in the unified
agenda, BLM had worked on 210 rules and the Forest Service on 126 rules.
We provided a list of these rules to the agencies and asked BLM to eliminate
duplicates and the Forest Service to eliminate policies and directives. BLM
identified 42 duplicate rules and the Forest Service identified 30 policies and
directives. In addition, we identified three Forest Service rules that were
announcements of periodically required reviews.

We asked GSA to provide us with information on the rules that OMB had
reviewed between October 1988 and September 30, 1993, and the rules that the
agencies recommended and OMB identified as significant after September 30,
1993. Because OMB reviewed all rules before September 30, 1993, and neither
GSA’s nor OMB’s tracking systems delineated whether the rule was considered
major under Executive Order 12291, we asked BLM and the Forest Service to
identify the major rules. In addition, we relied on the agencies and/or
information in the unified agenda to determine whether a rule met the
definition of significant under Executive Order 12866.

To determine dates and time spent for key steps in the rulemaking process and
the factors that contributed to the time spent, we obtained information from
GSA’s tracking system, agency officials, and Hes maintained either by the
principal author or regulation group within the agencies. Because neither the
Forest Service nor BLM maintain information showing when agency staff
started to work on rules, we relied on the recollection of agency officials or
documentation that indicated when staff took some action related to the rules.
Therefore, the time spent by the agencies on the rules that we examined may
be longer than we were able to determine. In addition, if the agencies’
 documents indicated a date that was earlier than the officials’ recollections, we
 used the documented date. We performed our work from May 1997 through
 August 1997 in accordance with generally accepted government auditing
 standards.




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As arranged with your office, unless you publicly announce its contents earlier,
we plan no further distribution of this report until 7 days after the date of this
letter. At that time, we will send copies of the report to the Secretaries of
Agriculture and the Interior; appropriate congressional committees; and other
interested parties. We will also make copies available to others upon request.

If you or your staff have any questions about this report, please call me at
(206) 287-4810. Major contributors to this report are Richard Iager, Alan
Kasdan, Mary Ann Kruslicky, and Carolyn McGowan.




    Resources, and Science Issues

Enclosure




9                                              GAOLRCED-97-226R   Time Spent on Rules
 ENCLOSURE I                                                                     ENCLOSURE I

             INFORMATION ON MAJOR AND SIGNIFICANT RULES INITIATED
                BY BLM AND THE FOREST SERVICE SINCE OCTOBER 1988

 Since October 1988, the Bureau of Land Management (BLM) initiated 168 rules and the
 Forest Service initiated 93 rules. Of the totals, the Office of Management and Budget
 designated 17 as major or significant (7 for BLM and 10 for the Forest Service). The
 sections following provide information on the 17 major or significant ruIes.

  BUREAU OF LAND MANAGEMENT

  The seven significant   BLM rules are described below.

  Sales of Forest Products: General. Prenaration   for Sale (RIN-1004-AB34)

  Purpose: This rule would prohibit the export of unprocessed timber from western
  federaI timber lands and direct or indirect substitution for such timber.

  Timing: BLM officials could not determine when the agency began to work on this rule.
  However, the rule first appeared in the Unified Agenda on April 27, 1987. BLM drafted
’ several Notices of Proposed Rulemaking but did not publish them. In the Omnibus
  Consolidated Recessions and Appropriations Act of 1996, the Congress imposed a
  moratorium on this rule. As a result, BLM withdrew the proposed rule on October 1,
  1996-9-l/2 years after BLM began working on it. In the Department of Interior and
  Related Agencies Appropriations Act of 1997 of the Omnibus Consolidated Appropriations
  Act of 1997, the Congress continued the moratorium until October 1, 1997.

  Reasons for the time taken: Several factors contributed to the time spent on this rule.
  According to BLM officials, the agency and the then Deputy Assistant Secretary for Land
  and Minerals Management had differing views on the form and content of the rule. In
  1990, the Congress enacted the Forest Resources Conservation and Shortage Relief Act
  that, according to BLM officials, paralleled this rule. An internal memo by the principal
  author of the rule noted that a revised draft of the proposed rule was prepared in 1990
  and languished through internal departmental review until early 1995 (5 years). Sometime
  in the late summer of 1995, Boise Cascade filed a lawsuit claiming that BLM and the
  Forest Service did not promulgate ruIes and regulations in compliance with the Forest
  Resources Conservation and Shortage Relief Act. According to BLM’s Acting Group
  Manager, Regulatory Affairs, the Department of the Interior settled the suit in 1996. The
  Acting Manager said that the lawsuit impacted the time that BLM spent on this rule
   during the last several months of the process.




   10                                                      GAO/NED-97-226R    Time Spent on Rules
ENCLOSURE      I                                                             ENCLOSURE        I

Grazing Administration   Exclusive of Alaska (RIN-1004AB89)

Purpose:    This rule amended many of the provisions for the management of public
rangelands, provided for nonmonetary settIement for unauthorized grazing use determined
by BLM to have resulted from circumstances beyond the control of the permittee or
lessee, provided for public participation in the management of public rangelands, and
provided for the development of standards and guidelines to be met in the administration
of livestock grazing. The rule also amended many of the provisions for the formulation,
structure, and roles of advisory committees.

Timing: The Secretary of the Interior announced this initiative at an aII employees
meeting in about May 1993. BLM published an Advance Notice of Proposed Rulemaking
on August 13, 1993, a Notice of Proposed Rulemaking on March 25, 1994, and a Final Rule
on February 22, 1995. The final ruIe took effect on August 21, 1995, but one provision on
a grazing surcharge for sublessees was delayed until the spring of 1996. Through August
1995, about 2 years and 3 months had elapsed since BLM began working on this rule.

Reasons for the time taken: According to officials, this rule was the highest regulatory
priority during the time BLM developed it. BLM and the Department of the Interior
devoted substantial staff and management time and effort to its preparation. For
example, from November 1993 through February 1994, the Secretary of the Interior met
20 times with affected parties in the west. On June 8, 1994, BLM and the Forest Service
held 48 simultaneous hearings around the west, plus one at BLM’s Eastern States Office
at which more than 1,900 people testified. BLM received about 12,600 letters commenting
c,n the Advance Notice of Proposed Rulemaking and more than 20,000 letters commenting
on a draft environmental impact statement, published on May 13, 1994, and the proposed
rule.

Rights-of-Wav. Rental Schedule for Communication    Uses (RIN-1004-AC121

Purpose:     This rule established a schedule for fair market rental for communication uses
of rights-of-way under the Federal Land Policy and Management Act. The schedule wiII
help reduce administrative costs related to appraisals, protests, and appeals.

Timing: BLM began working on this rule in the late spring of 1993 and published a
Notice of Proposed Rulemaking in the Federal Register on July 12, 1994. BLM published
the final ruIe on November 13, 1995; the rule took effect on December 13, 1995-about 2
years and 7 months after BLM began working on this rule.

Reasons for the time taken: The principal author of this rule could not identify
specific reasons for the time spent on this rule. In his view, the rule moved through the
process fairly efficiently.


11                                                   GAOiRCED-97-226R   Time Spent on Rules
ENCLOSURE I                                                                   ENCLOSURE I

Logical Mining Units: General: LMU Annlication Procedures: LMU Annroval Criteria: LMU
Diligence: Administration of LMU Onerations (RIN-1004AC15)

Purpose:   This rule would amend the regulations dealing with coal logical mining units
(LMUs) by improving procedures for review of applications and administering operations.
The rule. would place a greater emphasis on stewardship of federal coal resources and
would ensure that coal resources are developed in a legal, efficient, economical, and
orderly manner within the concept of ecosystem management. BLM initiated this rule in
response to a GAO report.’

Timing: BLM began working on this rule in the faII of 1993. BLM published an Advance
Notice of Proposed Rulemaking on December 10, 1993, and a Notice of Proposed
Rulemaking on December 28, 1994. BLM withdrew the rule on August 26, 1996, when the
agency combined it with another rule (RIN-1004AC37) discussed below. BLM withdrew
the general coal management rule (RIN-1104AC37) on February 14, 1997, and reinstituted
the separate LMU rule as RIN-1004AD12. BLM expects to publish a final rule by the end
of August 1997. As of July 31, 1997, about 3 years and 8 months had elapsed since BLM
began working on this ruIe.

Reasons for the time taken: According to BLM officiaIs, the combination of this rule
with and separation from the broader more complex coal management rule contributed to
the time that the agency spent developing it. Because the rule dealt with the same Code
of Federal Regulations sections as the general coal management rule, BLM decided to
combine the rules to respond to the reinventing government effort to simplify and reduce
the number of federal rules. In addition, BLM rewrote the rule in “plain English” to 2,
comply with the Reinventing Government Initiative.

Waiver, Susnension. or Reduction of Rental. Rovaltv. or Minimum      RovaItv IRIN-1004-
AC261

Purpose: This ruIe encourages the continued     operation   of wells that produce heavy oil
by providing reduced royalty rates.

Timing: BLM started working on this rule in December 1993 and published a Notice of
Proposed Rulemaking in the Federal Register on April 10, 1995. BLM published the final
rule on February 8, 1996; the rule took effect on March 11, 1996-about 2 years and 3
months after BLM began working on this rule.




 ‘Mineral Resources:    Federal Coal-Leasing Program Needs Strengthening    (GAO/RCED-94
 10, Sept. 16, 1994).

 12                                                    GAO/RCED-97-226R    Time Spent on Rules
ENCLOSURE     I                                                               ENCLOSURE I

Reasons for the time taken: With the exception of minor delays because of a BLM and
Department of the Interior reorganization, the principal author could not identify any
specific issues that impacted the time spent on this rule. In his view, the initiative moved
through the rulemaking process at a fairly efficient pace.

Coal Management [RIN-1004AC37)

Purpose:    This rule would amend the exploration and mining operations regulations, as
well as other operations-related regulations, to streamline them and to reflect current
policy and standard industry operating practices relating to federal coal.

Timing: BLM officials could not estimate when the agency began to work on this rule.
BLM listed the rule in the October 1988 Unified Agenda as Coal Exploration and Mining
Operations Rules (RIN-1004AB44) and published a Notice of Proposed Rulemaking on
July 12, 1991. BLM withdrew the rule on June 30, 1993. BLM listed the rule in the
November 1995 Unified Agenda as Coal Management @IN-1004AC37) and withdrew it on
February 14, 1997. BLM now shows this rule as Coal Management (RIN-1004-ADll) and
published an Advance Notice of Proposed Rulemaking on April 9, 1997. At the public’s
request, BLM extended the comment period to July 21, 1997. As of July 31, 1997, about 8
years and 9 months had elapsed since BLM began working on this rule.

Reasons for the time taken: BLM officials with whom we met could not provide
specific reasons for the time spent on this rule They noted that BLM had briefed
Department of the Interior officials on the status of the rule in August 1992. As discussed
above, BLM withdrew the rule in June 1993. However, in Au,bust 1996, BLM decided to
combine this rule with the Logical Mining Units rule (RIN 1004AC15) discussed above.
As BLM revised the rule for publication in late 1996, the industry obtained an unofficial
copy and asked BLM to seek additional public comments due to changes in the industry
since comments were sought in 1991. BLM withdrew the final rule on February 14, 1997.
BLM separated the Logical Mining Units sections from this general rule and published an
Advanced Notice of Proposed Rulemaking on April 9, 1997, for the remaining general coal
management regulations (RIN-1004~ADl l).

Mining Claims Under the General Mining Laws (Bonding)       (RIN-1004AC401

Purpose: This rule requires the submission of financial guarantees for reclamation of all
mining operations greater than casual use, creates additional financial instruments for this
purpose, and requires operators with a record of noncompliance to file plans of operation.

Timing: BLM officials could not estimate when the agency began to work on this rule.
However, on July 11, 1991, BLM published a Notice of Proposed Rulemaking in the



13                                                    GAOLRCED-97-226R   Time Spent on Rules
ENCLOSURE I                                                                     ENCLOSURE I

Federal Register. BLM published a final rule on February 28, 1997; the rule took effect on
March 31, 1997-5 years and 8 months after the notice was published.

Reasons for the time taken: BLM officials with whom we met said that the agency
initially worked concurrently on this rule and another ruIe that addressed the use and
occupancy of mining claims. BLM subsequently decided to focus first on the use and
occupancy rule, which preceded this ruIe by 7 or 8 months. They also noted that in 1993
and 1994, the Congress was considering legislative changes to the mining law, and BLM
officials exercised caution with advancing this rule in anticipation of possible new
legislation. Subsequent to the effective date of this ruIe, on May 12, 1997, the Northwest
Mining Association fiIed a lawsuit alleging that BLM violated both the Administrative
 Procedure Act by not allowing the public an opportunity to comment since 1991 and the
 Regulatory Flexibility Act by incorrectly defining a small entity.

FOREST SERVICE

Between October 1, 1988, and April 30, 1997, the Forest Service initiated    one major and
nine significant rules. Each rule is described below.

Management of Grazing Use Within Rangeland Ecosvstems         (RIN-0596-AA35)

Purpose: This rule would streamline management of National Forest System rangelands
by revising the provisions for livestock grazing, improving program efficiency, and
clarifying regulatory language as well as addressing such subjects as ecosystem
management, fees for processing charges, and national goals and objectives.

Timing: The Forest Service began working on this rule about December 1987.
Subsequent to a March 1987 conference on rangeland management, the Forest Service
reexamined its rangeland management policies and procedures and began to develop this
ruIe. The Forest Service published a proposed rule in the Federal Register on April 28,
1994. The Forest Service withdrew the rule from the Unified Agenda on October 1, 1996-
almost 9 years after starting to develop it.

Reasons for the time taken:      Between 1988 and 1993, the Forest Service was
developing this rule and addressing various internal agency and other concerns with the
proposed rangeland management changes. In mid 1993, the Forest Service and BLM
began a coordinated effort to revise and ensure consistency of their range management
ruIes. According to Forest Service officials, the coordinated approach made sense, but it
resulted in a broader and more substantial effort that became highly controversial in such
areas as grazing fees and the rights of operators and made it more difficult for the Forest
Service to proceed with a final rule. The officials noted that the agencies prepared and
issued for comment a draft environmental impact statement, and BLM published a fir-&


 14                                                    GAO/RCED-9’7-226R    Time Spent on Rules
ENCLOSURE     I                                                               ENCLOSURE I

rule for grazing management on February 22, 1995, absent fees and several other
provisions, but delayed the effective date of the rule until August 21, 1995. About the
same time, the Congress had started to consider legislation on range management issues.
Anticipating that new legislation could impact this effort, the Forest Service withdrew the
rule from the Unified Agenda on October 1, 1996.

Grazing Fees: Eastern and Southern Regions (RIN-0596-AA.551

Purpose:   Because the Forest Service used different grazing fee systems in its Eastern
and Southern Regions, the agency sought comments on two alternatives. The first would
have continued the two different fee systems; the second would have implemented a
uniform market driven fee system in both regions.

Timing: The Forest Service began working on this rule on or before December 1, 1987.
While preparing a congressionally requested report on grazing fees in western states, the
Forest Service realized that it also needed to revise the grazing fee system in the eastern
and southern states. According to an official, the Forest Service had paid little attention
to such fees in the recent past. The Forest Service published a Notice of Proposed
Rulemaking in the Federal Register on February 10,1989, and a final rule on January 26,
1990. This rule took effect on March 1, 1990-2 years and 3 months after the Forest
Service began working on it.

Reasons for the time taken: A Forest Service official with whom we met said that this
rule moved though the process at a reasonable pace. The official did not identify any
particular events that affected the time spent on this rule.

National Forest Prohibitions   IRIN-0596~AA75)

Purpose:    The Forest Service’s regulations (36 CFR 261, subpart A) set out acts
prohibited on National Forest System lands. These prohibitions derive from either
statutes governing national forest programs or other regulations. Subpart B of the
regulations authorize Regional Foresters, Forest Supervisors, or Research Station
Directors to close National Forest System lands under their jurisdiction to certain uses or
to restrict some uses of such lands.

Timing: The Forest Service began working on this ruIe sometime before October 1987
and issued a Notice of Proposed Rulemaking on February 16, 1994. Because of the high
level of public interest in this rule, the Forest Service decided to issue a second proposed
rule for comment, eliminating revisions relating to law enforcement support activities that
the agency will undertake as a separate action. As of July 1997, about 9 years and 9
months had elapsed since the Forest Service began to work on this rule, and the agency



15                                                    GAO/WED-97-226R    Time Spent on Rules
ENCLOSURE I                                                                      ENCLOSURE         I

had not issued the second Notice of Proposed Rulemaking.         Officials could not estimate
when the agency would do so.

Reasons for the time taken: According to Forest Service officials, this rule entailed
working with multiple staffs in such activities as recreation, timber, roads, fire, and
wildlife as well as extensive coordination with U.S. magistrates and U.S. attorneys to
obtain ideas and recommendations for the rule. The agency not only wanted to change
specific aspects of its regulations but also wanted to ensure consistency in the wording
used. The Forest Service received about 50,000 comments as a result of the February
1994 Notice of Proposed Rulemaking not only from the public but also from within the
agency. Since that time, the Forest Service has been reexamining what it wants to
accomplish with this rule and whether it should strive for the consistency envisioned by
the first notice. The Forest Service does not plan to go forward with the prohibitions rule
until it has completed a separate rule on law enforcement support activities (RIN-0596
AB61). Although AR61 has been determined to not meet the criteria for significance
under Executive Order 12866, Forest Service officials said that the proposed rule on
prohibitions will likely be designated significant because of the high level of public
interest shown in the original proposal.

In the October 1988 Unified Agenda of Federal Regulations, the Forest Service showed
that it planned to propose two rules: (1) 36 CFR Law Enforcement Support Activities
(RIN-0596-M65)     and (2) 36 CFR 261 Prohibitions (RIN-0596~AA75). However, on
February 6, 1990, the Forest Service combined both proposed rules, entitled 36 CFR 261
Prohibitions (RIN-0596AA75).     The rules remained combined until April 1996 when the
agency asked the Chief, Forest Service, to separate the law enforcement support
 activities. The Forest Service proposed this action, noting that most of the controversy
 and public comments over the proposed rule dealt with the Part 261 Prohibitions and that
 the law enforcement support activities (Part 262) received little public attention. The
 Forest Service also said that separating the two rules would allow the agency to
 implement regulatory reform as directed by the National Performance Review by moving
 ahead with the Part 262 rule. In the November 1996 Unified Agenda, the Forest Service
 notes that the rule no longer includes the Part 262 proposed revisions, which were listed
 separately as Law Enforcement Support Activities (RIN-0596AB61).        The agency expects
 to publish a proposed rule on the support activities in October 1997.

 Land Uses and Prohibitions:    Noncommercial     Groun Uses (RIN-0596-AA80)

 Purpose: In 1988, a     federal district court ruled that the Forest Service’s regulations
 discriminated against    groups that wish to gather on national forests to exercise their first
 amendment rights to     free speech. This rule would remove ambiguities regarding first
 amendment rights of     assembly and free speech in national forests.



 16                                                       GAOLRCED-97-226R   Time Spent on Rules
ENCLOSURE I                                                                     ENCLOSURE I

Timing: The Forest Service began working on this ruIe on or about May 11, 1992. The
agency published a proposed nile in the Federal Register on May 6, 1993, and the final
rule on August 30, 1995. The rule took effect on September 30, 1995-3 years and 4
months after the Forest Service began working on it.

Reasons for the time taken: The need for this rulemaking dates back to September
1982, when the Fifth Circuit Court of Appeals ruled that the Forest Service’s regulations
did not govern certain activities, specifically private group use of national forests. As a
result of the 1982 ruling, in June 1984 the Secretary of Agriculture promulgated revised
rules. However, in May 1986, the FederaI District Court for the District of Arizona held
that the 1984 rules were unconstitutional.     In an effort to respond to the court’s finding,
the Secretary issued an interim rule in May 1988 to amend the regulations but in June
 1988, the Federal District Court for the Eastern District of Texas ruled the interim rule
invalid. Between the June 1988 court ruling and the summer of 1992, action on the ruIe
languished. After the Forest Service sent a proposed rule to the Office of Management
and Budget for its review, the U.S. Department of Agriculture’s (USDA) Office of GeneraI
Counsel determined that the rule was not legally sufficient. Because of the Constitutional
issues involved in the rule, the Forest Service requested USDA’s Office of General
Counsel to draft the proposed and final rule.

National Forest Svstem Land and Resource Management         Planning (RIN-0596AB201

Purpose: This rule would revise the regulations governing forest land and resource
management planning to reflect agency experience in preparing initial forest plans as
required by the National Forest Management Act. The rule would, among other things,
articulate and clarify the forest planning and decisionmaking process and propose ways to
streamline plan amendments and revisions.

Timing: The Forest Service began working on this rule around March 1989. On February
15, 1991, the Forest Service published an Advance Notice of Proposed Rulemaking and on
April 13, 1995, a Notice of Proposed Rulemaking in the Federal Register for public
comment. An agency official estimates that the Forest Service w-ilI not finalize this rule
until June 1999 at the earliest. As of July 31, 1997, about 8 years and 4 months had
elapsed since the Forest Service began working on this rule.

Reasons for the time taken: This rule is based on the results and recommendations of
a June 1990 critique of the Forest Service’s land management planning process. Between
the 1991 and 1993 notices, the administration imposed a moratorium on federal agencies’
rulemaking activities and the administration changed. In January 1996, the Forest Service
sent a draft final rule to USDA for its review and approval. Subsequently, the Forest
Service changed a portion of the rule. Also, later that year, the Chief retired. On June 21,
1996, USDA’s Office of Budget and Program Analysis sent the draft final rule to other

17                                                      GAOLRCED-97-226R   Time Spent on Rules
ENCLOSURE I                                                                  ENCLOSURE I

offices in the Department for their review. In January 1997, USDA returned the proposed
rule to the Directives and Regulations Branch pending a decision on whether to go
forward with the rule. Subsequently, USDA decided to draft a new proposed rule. USDA
is considering chartering a committee of scientists to advise the agency in developing a
new proposal.

Disnosal of National Forest Timber: Cancellation   of Timber Sale Contracts (RIN-0596-
ABLY)

Purpose:     Current regulations do not adequately protect the government’s financial
interests if the Forest Service must cancel timber sale contracts to protect threatened and
endangered species. This rule would remove an unworkable compensation-of-damages
formula and establish a termination for environmental protection clause in timber sale
contracts, a standard in most federal procurement contracts.

Timing: The Forest Service began working on this rule about June 1989 and issued a
Notice of Proposed Rulemaking on August 31, 1990, and again on December 30, 1996.
Agency officials estimate that the Forest Service will issue a final rule no later than
October 1998. The Branch Chief, Directives and Regulations, noted that the Forest
Service is optimistic that it can publish the rule much sooner than October 1998. As of
July 31, 1997, 8 years and 2 months had elapsed since the Forest Service began working
on this rule.

Reasons for the time taken: We previously reported that the Forest Service had
published proposed regulations in August 1990 but did not issue a final rule because it
subsequently identified additional changes that should have been included and because
litigation was occurring at that time.” In 1992, the Forest Service again instituted an
effort to incorporate two of its contract provisions-one to protect the habitat of
endangered species and the other to specify the settlement that will be provided when the
agency cancels a timber sale contract to protect threatened or endangered species-into
its regulations. Attorneys from USDA’s Office of General Counsel and the Deputy
 Director, Timber Management, noted that changing environmental circumstances, the
tremendous increase in the number of lawsuits, and the decisions resulting from the
 numerous lawsuits have resulted in proposed cancellation regulations that differ
 significantly from the Forest Service’s original proposal in 1990.




 ‘Timber Management: Onnortunities to Limit Future Liabilitv    for Suspended or Canceled
 Timber Sale Contracts (GAO/RCED-97-14, Oct. 31, 1996).

 18                                                    GAOIRCED-97-226R   Time Spent on Rules
ENCLOSURE I                                                                         ENCLOSURE I

Federal Timber Exoort and Substitution    Restrictions     (Comprehensive     Revision) (RIN-
05964322)

Purpose:    This rule was mandated by the Forest Resources Conservation and Shortage
Relief Act of August 20, 1990, and would restrict the (1) export of unprocessed timber
from federal lands and (2) direct or indirect purchase of federal logs to be used in
substitution for the export of unprocessed timber originating from private lands.

Timing: Agency documentation indicates that the Forest Service was working on this
rule on August 30, 1990. The final rule took effect a little more than 5 years later-on
September 8, 1995.

Reasons for the time taken: The Forest Service published (1) an interim rule on
November 20, 1990, to comply with some statutory requirements that took effect before
the final rule could be issued; (2) a proposed comprehensive rule on January 29, 1991, to
fully implement the act; (3) a proposed rule of limited scope on January 29, 1991; (4) a
final rule on April 5, 1991, delegating the Secretary of Agriculture’s authority to make the
final decision on sourcing area applications; (5) a final rule on May 14, 1991, amending
the Department’s rules of practice governing formal adjudicatory proceedings under
various statutes, including log export and substitution disputes arising from the act; (6) a
final rule on April 2, 1992, to delegate the Secretary’s authority to adjudicate sourcing
area applications; (7) a final ru.Ie on February 24, 1994, to establish procedures for
adjudicating and reviewing sourcing areas; and (8) a final, comprehensive rule on
September 8, 1995.

On October 13, 1995, the Secretary of Agriculture suspended part of the final rule for 120
days to provide for a more orderly and planned implementation       by the forest products
industry and the Forest Service. The suspension took effect on October 17, 1995. During
the suspension, existing regulations provided some export control, such as the
requirement to mark (double-end brand and paint) national forest logs and an agreement
that the first purchaser of national forest logs wiII process them domestically.
Subsequently, in the Omnibus Consolidated Rescissions and Appropriations Act of 1996,
the Congress imposed a moratorium on the implementation of this rule. In the
Department of Interior and Related Agencies Appropriations      Act of 1997 of the Omnibus
Consolidated Appropriations Act of 1997, the Congress continued the moratorium until
October 1, 1997.

State and private Forestrv Assistance Stewardshin        Incentive   Program (RIN-0596~AR321

Purpose:   This rule established interim procedures for administering the Stewardship
Incentive Program, which is intended to encourage private landowners, through cost-share



19                                                         GAO/RCED-97-226R    Time Spent on Rules
ENCLOSURE      I                                                                  ENCLOSURE I

assistance, to manage their forest lands for economic, environmental,       and social benefits.

Timing: The Forest Service began working on this rule about April 1991 and published
an interim final rule in the Federal Register on December 4, 1991. In March 1994, the
agency began drafting the final rule and in November 1996 sent it to USDA for its review.
In February 1997, USDA requested the Forest Service to rewrite the benefit and cost
analysis, which the agency is doing. Forest Service officials expect to issue the final rule
in the fall of 1997. As of July 31, 1997, 6 years and 3 months had elapsed since the Forest
Service began to work on this rule.

Reasons for the time taken: Forest Service officials with whom we met cited two
major reasons for the time spent on this rule. First, the Office of Management and
Budget designated the final rule as significant. Because the interim final rule was not
designated as significant, the Forest Service had to undertake and complete various
analytical requirements, such as a rigorous cost and benefit analysis. Second, the Forest
Service lacked the resources to provide prompt review and revision of the rule.

36 CFR 22.2 Range Management.      Subpart C Grazing Fees (RIN-0596-Al3421

Purpose:    This rule sought to address public concerns about the level of fees charged for
livestock grazing on National Forest System lands in the Western United States. The
Forest Service joined with BLM to establish new grazing fees; the agencies had expected
to issue the final rules simultaneously.

Timing: The Forest Service began working on this rule around December 1, 1987. The
rule had been part of Management of Grazing Use Within Rangeland Ecosystems (RIN-
0596-AA35) (discussed earlier). The Forest Service published an Advanced Notice of
Proposed Rulemaking on August 13, 1994, and withdrew it on February 3, 1995-about 7
years and 2 months after it began working on it.

Reasons for the time taken: The Forest Service deferred action on this rule,
anticipating that legislation being considered by the Congress would impact this
rulemaking effort.

Range Management      Grazing Fees in the West: Qualification   Criteria (RIN-0596Al3501

Purpose:     This rule would have provided eligibility criteria for granting a 30-percent
reduction   in grazing fees for permittees who met the criteria.

 Timing: The Forest Service began working on this rule about the end of July 1994 and
 withdrew it on February 3, 1995-8 months later.



 20                                                      GAOIRCED-97-226R     Time Spent on Rules
ENCLOSURE I                                                                 ENCLOSURE I

Reasons for the time taken: When the Forest Service issued the Advanced Notice of
Proposed Rulemaking for 36 CFR 222 Range Management, Subpart C Grazing Fees (RIN-
0596AR42) (discussed earlier), it stated that it would issue qualification criteria as a
separate action. The agency took this approach believing that it would take longer to
finalize the criteria than the fees. When the Forest Service withdrew RIN-0596~AI342
pending future congressional action, a need did not exist to proceed with this ruIe.




(141054)



21                                                  GAO/RCED-97-226R   Time Spent on Rules
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