United States General Accounting Office

GAO Report to Congressional Requesters

March 1995 CLEAN AIR

RULEMAKING

Tracking System Would

Help Measure Progress

of Streamlining

Initiatives

GAO/RCED-95-70

GAO United States

General Accounting Office

Washington, D.C. 20548

Resources, Community, and

Economic Development Division

B-259647 

March 2, 1995

The Honorable Max S. Baucus

Ranking Minority Member

Committee on Environment

 and Public Works

United States Senate

The Honorable Joseph I. Lieberman

United States Senate

The Clean Air Act Amendments of 1990 established ambitious milestones

for protecting and enhancing the quality of the nation’s air. A key step in

meeting these milestones—translating the act’s statutory mandates into

workable rules and regulations—requires that the Environmental

Protection Agency (EPA) develop and issue rules at an unprecedented rate.

At the time of the act’s passage, EPA’s rulemaking process averaged more

than 3 years, and some rules took as many as 9 years to complete.

According to EPA, this rulemaking process needed to be reformed if the

agency was to meet the act’s milestones. Consequently, EPA and the Office

of Management and Budget (OMB) initiated changes to reduce the time

required to promulgate clean air rules. Concerned that EPA has continued

to miss statutory deadlines, you asked us to (1) describe EPA’s progress in

streamlining the process for developing and issuing clean air rules and

identify improvements that might enhance EPA’s streamlining activities and

(2) describe OMB’s corresponding efforts to reduce the time associated

with reviewing EPA’s rules. (App. I contains further details on our

objectives, scope, and methodology.)

Results in Brief EPA has taken several actions to expedite clean air rulemakings. In

January 1991, EPA eliminated a duplicative step in the agency’s internal

review process, which officials estimate saved an average of about 4

months for rulemakings. In June 1994, EPA made its most far-reaching

change—grouping rules into three categories and varying the amount of

interoffice coordination and management review needed in each category.

Under this process, over half of EPA’s ongoing clean air rules have been

assigned to a “fast track” category. EPA officials believe that if they involve

senior managers earlier and eliminate unneeded coordination for the rules

in this category, the rules will be completed 3 months sooner than the

current average. However, despite efforts to reform the rulemaking

process, the agency acknowledges having missed over 60 percent of the

Page 1 GAO/RCED-95-70 Clean Air Rulemaking
B-259647 

statutory deadlines imposed by the 1990 act. Exacerbating this situation is

the fact that the agency does not have a system for identifying problem

areas in the rulemaking process or for assessing and tracking the impact of

the streamlining efforts. Consequently, EPA can neither demonstrate that

its streamlining efforts are actually reducing the time to issue clean air

rules, nor assess the effectiveness of its various initiatives, such as

reaching out to affected parties early in the rule development process.

Although agency officials recognize that such a system could be useful,

they said that in view of their limited resources, issuing rules warrants a

higher priority.

Although OMB has reduced the number of rules it reviews, it is too early to

tell if the changes that OMB has implemented will significantly enhance

EPA’s ability to expedite clean air rules because so few rules have been

completed under the new process. Since October 1, 1993, OMB has

eliminated its review of over one-third of EPA’s ongoing clean air

rulemakings in accordance with the requirement of Executive Order 12866

that OMB focus only on significant rules. OMB’s past practice of reviewing

most clean air rules may have contributed to the lengthy rulemaking

process. EPA officials estimate that eliminating OMB’s review of

nonsignificant rules may save from several days to 6 months for each rule.

We are recommending that the Administrator of EPA implement a tracking

system to record key dates, resources, and historical information needed

to monitor and evaluate the agency’s clean air rulemaking process.

Background The passage of the Clean Air Act Amendments in November 1990 placed

many new and increased requirements on EPA to address significant air

pollution issues facing the nation, including ozone, acid rain, urban air

pollution, mobile source emissions, and toxic air pollution. EPA and most

other federal agencies use an informal (also known as

notice-and-comment) rulemaking process to translate statutory mandates

into rules and regulations.

In developing and issuing environmental rules, EPA must follow procedures

enumerated in several statutes, including the Administrative Procedure

Act, the Paperwork Reduction Act, and the Regulatory Flexibility Act,

among others. Additionally, most clean air rulemakings must follow

specific rulemaking procedures contained in the Clean Air Act to ensure

that EPA has considered the views of interested and affected parties. EPA’s

standard rulemaking process, employed agencywide since 1986, entails a

Page 2 GAO/RCED-95-70 Clean Air Rulemaking
B-259647 

multitude of activities in order to take a rulemaking from inception to

promulgation. (App. II provides a flow chart (fig. II.1) and description of

the major steps in this process.)

Since the passage of the 1990 act, EPA has issued more proposed and final

air quality regulations and guidance documents in a shorter period of time

than at any other time in its history—over 150 by the fall of 1993. However,

delays in meeting many statutory deadlines have continued. These delays

have resulted in lawsuits and, in some instances, court-ordered deadlines

that, according to the EPA Administrator, have hindered effective planning

efforts. For example, in the first 2 years of the act’s implementation, EPA

was sued for missing 42 statutory deadlines. Generally, agency officials

cite three reasons for missing these deadlines: insufficient resources,

unrealistic original deadlines, and the lengthy rulemaking process. As

agreed with your offices, this report focuses only on the last of these

reasons.1

EPA’s Efforts to

Streamline Clean Air

Rulemakings

In 1990, EPA recognized that it needed to change its internal rulemaking

process if the agency was to meet the expanded rulemaking

responsibilities envisioned under the impending Clean Air Act

Amendments.2

 In January 1991, EPA’s Office of Air and Radiation (OAR)3

modified the traditional rulemaking process by eliminating a duplicative

step in the process. According to OAR officials, this action cut about 4

months out of a rulemaking process that was averaging over 3 years.

In a further effort to expedite clean air rules, in June 1994 EPA

implemented its most far-reaching change—a revised agencywide process

designed to improve the quality and efficiency of rulemakings. This new

process groups rules into three categories, or tiers, designed to produce

quality rules at the lowest management level practicable and with minimal

administrative processes. The new process calls for fundamental changes

in how EPA approaches rulemakings, including the early involvement of

senior managers; early and frequent consultation and consensus-building

with interested and affected parties outside of EPA; and, for many rules,

minimal internal coordination.

1

Resource issues were addressed separately in our report entitled Air Pollution: Reductions in EPA’s

1994 Air Quality Program’s Budget (GAO/RCED-95-31BR, Nov. 29, 1994).

2

As noted in the July 1990 report by the Clean Air Act Implementation Task Force.

3

OAR is responsible for promulgating clean air rules.

Page 3 GAO/RCED-95-70 Clean Air Rulemaking
B-259647 

EPA envisions that tier 1 rules—generally expected to be those rules that

are the most costly, controversial, or of significant concern to other EPA

offices—will need the most management attention and internal

coordination. For such tier 1 rules, the new process calls for ongoing

involvement by the EPA Administrator’s office and formal cross-agency

coordination at four distinct stages in rule development: (1) early

guidance, when EPA senior managers identify the priority issues that must

be addressed; (2) analytic blueprint, when participants agree on the

scientific, technical, economic, legal, and intergovernmental information

and analyses needed; (3) alternatives selection, when the potential

regulatory options are narrowed down to one, or a few, preferred

alternatives; and (4) workgroup closure,4

 when workgroup members

resolve all remaining issues. While EPA’s guidelines state that the new

tiered process will improve the quality and efficiency of rulemakings,

agency officials told us they do not anticipate any time savings for the

rules promulgated under tier 1 because of their complexity.

Rules promulgated under tier 2 need less high-level management attention

but still require senior management involvement at two distinct stages in

the rulemaking process—analytic blueprint and workgroup closure.

Because no rules in tier 2 have been completed using the new process, OAR

officials believe that it is too early to assess whether tier 2 rules will be

issued more quickly.

According to senior OAR officials, tier 3 is EPA’s “fast track” category. The

clean air rules in this category are generally the least costly and

controversial and often involve only OAR staff and management and EPA’s

Office of Enforcement and Office of General Counsel. No analytic

blueprint or workgroup closure is required for the rules in tier 3. EPA

officials anticipate that the rules in tier 3 will be promulgated faster than

the rules in the other two tiers. Table 1 shows EPA’s distribution of the 207

ongoing clean air rulemakings as of December 15, 1994.

Table 1: Ongoing Clean Air

Rulemakings in Each Tier as of

December 15, 1994, and Time Savings

Predicted by EPA

Category Number Percent Predicted time savings

Tier 1 9 4 None

Tier 2 90 43 Uncertain

Tier 3 108 52 Up to 3 months

4

Workgroups are EPA-wide, staff-level groups formed to ensure that the agency’s data collection and

analysis methodology is sound and to identify, assess, and, if possible, resolve key technical and policy

issues necessary to develop a proposed or final regulation.

Page 4 GAO/RCED-95-70 Clean Air Rulemaking
B-259647 

OAR officials explained that because the changes are new and the process

of taking a rule from inception to promulgation still involves many

activities, it will be 2 or more years before OAR will be able to judge if these

recent changes have had an effect on the clean air rulemaking process.

EPA’s Other Regulatory

Streamlining Initiatives

In addition to instituting the tiered process, OAR officials told us they are

implementing other initiatives to try to expedite the rulemaking process

for selected clean air rules. Generally, these initiatives involve reaching

out to interested and affected parties early in the rule development

process or establishing partnerships with state and local agencies,

industry, and environmental groups; such partnerships will allow EPA to

benefit from the expertise and resources these organizations can offer.

(App. III provides a detailed description of these rulemaking techniques.)

Because their experience with these techniques is limited, OAR officials

could not estimate the time savings from their use. For example, one

technique—regulatory negotiation5

—has been used only five times since

the passage of the 1990 act, and another technique—partnerships with

state and local agencies and industry and environmental groups—is so

new that only two pilot projects are ongoing, and none have been

completed. Furthermore, some officials cautioned that EPA must be

selective in choosing which rules will involve these rulemaking techniques

because not all techniques are appropriate for all clean air rules. In their

opinion, using these techniques on some rulemakings may cause the initial

stages of the process to take longer than they would have under the

traditional process. For example, regulatory negotiations that address

complex and/or controversial issues may initially take longer because such

negotiations are a very resource-intensive process for both EPA and the

participating groups. However, these techniques may save time in the long

run because they can produce a better quality rule that receives fewer and

less severe public comments and is less likely to be challenged in court.

EPA Lacks System for

Assessing Effectiveness of

Its Streamlining Efforts

To date, EPA has not established a systematic way of assessing the

effectiveness of its initiatives to expedite the rulemaking process. As a

result, the agency is unable to demonstrate that its past streamlining

initiatives have actually reduced the time required to issue clean air rules.

As shown in appendix IV, even though EPA missed 91 of 145 (63 percent) of

the 1990 act’s statutory deadlines, the agency has not collected accurate,

5

A regulatory negotiation is a formal process, under the Negotiated Rulemaking Act of 1990, for

allowing interested and affected parties to negotiate the detailed requirements of a proposed

regulation.

Page 5 GAO/RCED-95-70 Clean Air Rulemaking
B-259647 

reliable information on the time it takes to develop and issue rules. Such

data would allow the agency to identify problem areas or bottlenecks in

the rulemaking process and to accurately gauge the impact of streamlining

efforts.

EPA’s lack of data on rulemakings was also noted by the National

Performance Review’s Regulatory Development Team in its August 1993

report to the EPA Administrator on EPA’s regulation development process.

The report pointed out that

“Adequate data are not collected to allow the Agency to continuously measure and evaluate

the regulation development process and the Agency does not routinely assess the

efficiency of its process or the quality of its product.”

In July 1994, EPA’s Assistant Administrator for Air and Radiation tasked

OAR with developing a system that senior managers could use to monitor

the progress of individual rules with statutory or court-ordered deadlines,

including each rule’s deadlines and current stage in the rulemaking

process. While the resulting system—a subset of OAR’s Management and

Accountability Process System (MAPS)—is an improvement in EPA’s

rulemaking data base, it does not maintain the key dates, length of time in

each major phase of the rulemaking process, allotted resources, or other

historical information that agency managers can use to assess the

rulemaking process. According to the manager of the MAPS data base,

limitations in the system’s capacity cause some historical data to be

eliminated when new deadlines are entered. Thus, the new system still

does not allow the agency to identify problem areas in the rulemaking

process or measure the impact of streamlining efforts.

OAR officials said that developing a system for tracking the time required to

promulgate clean air rules has not been as high a priority as committing

their limited resources to issuing rules, although they recognize that such a

system could be useful. (App. IV provides the best available data on EPA’s

record for meeting clean air statutory deadlines through December 20,

1994—about 4 years since the act’s passage. Because of EPA’s lack of data

on rulemakings, the agency was unable to provide us with information on

the time required to develop and promulgate clean air rules for this time

period.)

OMB’s Review of

EPA’s Rules

OMB has taken several actions to help expedite the rulemaking process

since Executive Order 12866 was issued on September 30, 1993. For

Page 6 GAO/RCED-95-70 Clean Air Rulemaking
B-259647 

example, OMB has begun focusing its in-depth reviews on significant

rulemakings, defined in the executive order as those that have one or more

of the following effects:

• Have an expected annual effect on the economy of $100 million or more.

• May adversely affect the economy in a material way.

• Create a serious inconsistency or otherwise interfere with an action taken

or planned by another agency.

• Materially alter the budgetary impact of entitlements, grants, user fees, or

loan programs or the rights and obligations of recipients thereof.

• Raise novel legal or policy issues arising out of legal mandates, the

President’s priorities, or the principles set forth in Executive Order 12866.

Whereas OMB’s past practice was to review all nonroutine6

 clean air rules,

OMB and EPA have agreed that 52 of 125, or 42 percent, of such ongoing

rules will not undergo OMB review because these rules do not meet the

above criteria for an in-depth review by OMB. According to EPA officials, the

agreement means that these 52 rules may be promulgated from several

days to 6 months sooner than they would have been before the issuance of

Executive Order 12866. (App. II shows the steps eliminated from the clean

air rulemaking process when OMB forgoes its review.)

Executive Order 12866 specifies that nonsignificant rules—those that do

not meet the criteria listed above—do not have to be reviewed by OMB. OMB

officials said that EPA provides them with a one-page summary of all

proposed or final rules and that, on the basis of their review of this

summary, OMB concurs or disagrees with EPA’s determination of a rule’s

significance. Subsequently, EPA and OMB representatives may further

discuss and resolve their differing views on a rule’s significance. Since

September 30, 1993, when Executive Order 12866 was issued, OMB has

disagreed with EPA’s classification of 26 (21 percent) of EPA’s 125 clean air

rules. In most of these cases, EPA had classified the rule as nonsignificant,

but OMB believed these rules were significant. After providing more

information to OMB on some rules, EPA obtained OMB’s agreement that 3

rulemakings were nonsignificant and redesignated 23 rules as significant.

Nonetheless, EPA officials view this process favorably and noted that OMB

has agreed with over 75 percent of their classifications (99 of 125

rulemakings).

6

Under both the prior and current executive orders, OMB does not review routine regulatory actions,

such as State Implementation Plans (SIP). According to OMB, SIP actions have risen from about 120

actions in 1991 to nearly 500 actions in 1994.

Page 7 GAO/RCED-95-70 Clean Air Rulemaking
B-259647 

OMB’s Other Streamlining

Initiatives

OMB has initiated other actions to help expedite the rulemaking process.

For example, EPA and OMB officials said that in keeping with the

requirements of Executive Order 12866, OMB has generally completed its

reviews of significant clean air rulemakings within 90 days. OMB officials

pointed out that they can complete reviews more quickly now, in part

because they are reviewing from one-fourth to one-third fewer clean air

rules than in past years. Although this process is new, OMB’s review of 60

proposed and final clean air rules through September 30, 1994, averaged 34

days each, ranging from 1 to 116 days.7

 Two proposed clean air rules

exceeded the 90-day review period allowed under Executive Order 12866,

but according to OMB officials, EPA requested the extension in both cases.

However, EPA officials pointed out that since OMB reviews both the

proposed and final rule, OMB’s impact on the length of the rulemaking

process is cumulative; thus, when OMB’s review of both the proposed and

final rule is considered, the average of 34 days would double to an average

of 68 days—over 2 months—for a complete rulemaking.

EPA officials said it is difficult to compare the time OMB took to review

clean air rules before and after the issuance of Executive Order 12866.

Before the new order, they said that in some instances OMB would suspend

its review and thus “stop the clock.” OMB officials said that they suspended

a rule’s review when EPA needed additional time to collect more data,

complete new analyses, or make changes to the rule and that they

restarted the “clock” and continued the review when EPA resubmitted the

rule to OMB. Thus, in the past, although months or years might have passed

before a rule cleared OMB’s review, OMB’s data would show a much shorter

time period. Executive Order 12866 does not provide for “suspending” the

review of rules, and OMB officials said that OMB is no longer engaging in this

practice. Currently, to ensure timely reviews, OMB’s Office of Information

and Regulatory Affairs (OIRA)8

 staff meet weekly with the Administrator of

OIRA to discuss and resolve any outstanding issues on rules that have been

at OMB for 60 or more days or rules approaching statutory or judicial

deadlines. According to OMB staff, this process is working well, as

evidenced by the sparse number of rulemakings that have exceeded 90

days.

7

This analysis excludes eight clean air rules submitted before OMB’s 90-day review criteria were

imposed on October 1, 1993, but which OMB subsequently approved. Review time for these eight rules

averaged 79 days, ranging from 17 to 158 days. Of the 60 rules, only 1 rule had received both proposed

and final reviews by OMB since October 1, 1993.

8

OIRA is responsible for reviewing clean air and other federal agency rules.

Page 8 GAO/RCED-95-70 Clean Air Rulemaking
B-259647 

Additionally, OMB has instituted several measures to improve cooperation

and communication with EPA staff. For example, in a series of meetings

with EPA staff over the last year, OMB and EPA clarified the criteria for

determining whether an EPA rule should be classified as significant or

nonsignificant. EPA staff are optimistic that this guidance will assist them

in correctly classifying proposed and ongoing rulemakings and will reduce

the number of initial disagreements with OMB about a rule’s significance.

Additionally, another initiative calls for the use of regulatory policy

officers as focal points for resolving conflicts with EPA and other

regulatory agencies. This mechanism gives the OIRA Administrator a quick

contact in each agency for elevating and resolving rulemaking issues in a

timely manner. Finally, OIRA officials also pointed out that they have

improved communications with regulatory agencies’ staffs by providing

informal training in how OMB conducts its regulatory reviews; the officials

believe that the training will help EPA staff understand and address OMB’s

concerns and, in turn, issue rules faster.

EPA officials generally agreed with OIRA’s May 1994 report, which noted

that a vastly improved relationship has developed between OIRA and

federal agencies since Executive Order 12866 was issued on September 30,

1993. However, because only one clean air rule has been completed under

the new process (with both proposed and final reviews by OMB), it is too

early to assess the full impact of these changes on EPA’s ability to expedite

clean air rulemakings. OIRA officials said it will probably be 2 years or more

before they can assess the overall impact of these changes on the

rulemaking process.

Conclusions Officials from both EPA and OMB believed that the cumulative impact of

their collective efforts to reform the rulemaking process could save from 4

to 13 months in a process that averaged nearly 37 months at the time of

the act’s passage in 1990. Staffs of both agencies said that communication

and coordination have improved, which should be helpful in resolving

impasses that, in the past, resulted in rules that took years to be issued.

However, the act clearly places the responsibility for meeting milestones

on EPA, and while the agency believes that these changes will reduce the

time to issue rules, it does not have a systematic way of measuring the

impact of its efforts. In our opinion, a rulemaking tracking system would

provide EPA with the information needed to assess the impact of current

and future changes to its rulemaking process.

Page 9 GAO/RCED-95-70 Clean Air Rulemaking
B-259647 

Recommendation To better ensure that EPA managers efficiently and appropriately monitor

the agency’s efforts to meet statutory deadlines, we recommend that the

Administrator, EPA, implement a rulemaking tracking system that

maintains key dates for major phases in the rulemaking process, provides

for analysis of the length of time that rules spend in major phases of the

rulemaking process, and tracks the resources allotted to rules and other

historical information that managers need to identify problem areas and

measure the impact of changes made.

We discussed the information contained in this report with officials from

both OMB and EPA. At OMB, we talked to representatives of the

Administrator of the Office of Information and Regulatory Affairs. At EPA,

we discussed this information with representatives of the Assistant

Administrator for Air and Radiation, the Director of the Office of Air

Quality Planning and Standards, the Director of the Office of Mobile

Sources, and the Director of the Office of Policy, Planning, and Evaluation.

Officials from both agencies generally agreed with the facts contained in

this report and noted that the report fairly characterized their efforts to

expedite the development and issuance of clean air rules, as well as the

improved working relationship between the staffs of the two agencies.

Furthermore, while EPA officials agreed that a rulemaking tracking system

could be useful, they indicated that issuing more rules was a higher

priority than developing and maintaining such a system. In our opinion,

however, the value of a tracking system—including identifying problem

areas and bringing about rulemaking efficiencies—warrants such a

management tool. EPA and OMB officials’ comments are included where

appropriate. However, at your request we did not obtain written agency

comments on a draft of this report. We conducted our review from March

through December 1994 in accordance with generally accepted

government auditing standards.

Unless you publicly announce its contents earlier, we plan no further

distribution of this report until 30 days after the date of this letter. At that

time, we will send copies to the Director of OMB and the Administrator of

Page 10 GAO/RCED-95-70 Clean Air Rulemaking
B-259647 

EPA and make copies available to others upon request. If you have any

questions, please call me at (202) 512-6111. Major contributors to this

report are listed in appendix V.

Peter F. Guerrero

Director, Environmental

 Protection Issues

Page 11 GAO/RCED-95-70 Clean Air Rulemaking
Contents

Letter 1

Appendix I 

Objectives, Scope,

and Methodology

14

Appendix II 

Overview of the

Traditional Process

for Clean Air

Rulemaking

15

Appendix III 

Additional

Information on EPA’s

Initiatives to

Streamline the Clean

Air Rulemaking

Process

18

Appendix IV 

Statutory Deadlines

Met and Missed for

EPA’s Clean Air

Rulemakings

21

Appendix V 

Major Contributors to

This Report

23

Tables Table 1: Ongoing Clean Air Rulemakings in Each Tier as of

December 15, 1994, and Time Savings Predicted by EPA

4

Page 12 GAO/RCED-95-70 Clean Air Rulemaking
Contents

Table IV.1: Number of Statutory Deadlines Met and Missed,

Annually, Through November 15, 1994.

21

Table IV.2: Unmet Clean Air Act Statutory Deadlines as of

December 20, 1994

21

Figure Figure II.1: Steps Shortened or Eliminated by New Rulemaking

Process

15

Abbreviations

EPA Environmental Protection Agency

GAO General Accounting Office

GPO Government Printing Office

MACT maximum achievable control technology

MAPS Management and Accountability Process System

OAR Office of Air and Radiation

OIRA Office of Information and Regulatory Affairs

OMB Office of Management and Budget

SAN Start Action Notice

SIP State Implementation Plan

Page 13 GAO/RCED-95-70 Clean Air Rulemaking
Appendix I 

Objectives, Scope, and Methodology

Concerned about the Environmental Protection Agency’s (EPA) lengthy

rulemaking process and the fact that the agency missed statutory

deadlines for clean air rules, the Ranking Minority Member of the Senate

Committee on Environment and Public Works and Senator Joseph I.

Lieberman asked us to describe EPA’s progress in streamlining the clean air

rulemaking process and identify improvements that might enhance EPA’s

efforts. They also asked us to describe the corresponding efforts of the

Office of Management and Budget (OMB) to reduce the time associated

with its review of such rules.

Our work focused on EPA’s and OMB’s completed, ongoing, and planned

efforts to reduce the time required to issue clean air rules since the

passage of the Clean Air Act Amendments in November 1990. In carrying

out our work, we also considered both agencies’ initiatives to streamline

their rulemaking procedures as part of their efforts to implement

Executive Order 12866 and the recommendations of the National

Performance Review. To address the efforts made at EPA to streamline the

agency’s clean air rulemaking procedures, we interviewed officials and

obtained documents from the following EPA offices:

• Office of Air and Radiation, Washington, D.C.;

• Office of General Counsel, Washington, D.C.;

• Office of Policy, Planning and Evaluation, Washington, D.C.;

• Office of Enforcement and Compliance Assurance, Washington, D.C.;

• Office of Mobile Sources, Washington, D.C.; and

• Office of Air Quality Planning and Standards, Durham, N.C.

To address efforts made by OMB to streamline the agency’s review of clean

air rules, we interviewed officials and obtained documents from OMB’s

Office of Information and Regulatory Affairs.

Page 14 GAO/RCED-95-70 Clean Air Rulemaking
Appendix II 

Overview of the Traditional Process for

Clean Air Rulemaking

We developed the following flow chart (fig. II.1) in an effort to simplify

and categorize the multitude of activities involved in developing and

promulgating clean air rules. While this flow chart is not a formal agency

model, it was prepared with the assistance of EPA senior air program

officials who agreed that these steps present a fair framework for

depicting the traditional rulemaking process and illustrating the steps

where EPA’s and OMB’s initiatives may expedite rulemakings. A general

description of each step follows the chart.

Figure II.1: Steps Shortened or Eliminated by New Rulemaking Process

EPA Develops a


Start Action 


Notice Describing


Problem

EPA's OAR


Management


Reviews Draft


Rule

EPA Collects 


and Analyzes 


Information and 


Develops Rule

EPA Receives


Public Comments

EPA Addresses


Comments; Collects


and Analyzes


More Information;


Revises Rule

EPA's OAR


Management


Reviews Final


Rule

EPA Administrator


Approves Draft 


Rule; Places It in 


Federal Register

EPA Administrator


Approves Final 


Rule; Places It in


Federal Register

Step 1 Step 2


44 to 64 weeks

Step 3 


4 to 10 weeks

Step 4


1 to 4 weeks

Step 5


1 to 12 weeks

Step 6


3 to 6 weeks

Step 7


4 to 12 weeks

Step 8


14 to 27 weeks

Step 9


4 to 10 weeks

Step 10


1 to 4 weeks

Step 11


1 to 12 weeks

Step 12


3 to 6 weeks

End

Start

EPA Coordinates


Draft Rule


Internally

EPA Coordinates


Final Rule 


Internally, If


Necessary

OMB Reviews


and Concurs 


With Draft


Rule

OMB Reviews and


Concurs With 


Final Rule

Total Time: 80-167 weeks or 1-1/2 to 3-1/4 years.

Indicates steps eliminated for rules determined not to be significant by OMB.

Indicates steps shortened or eliminated by Tier 3 rules.

Note: Time estimates were taken from a report by the Clean Air Act Implementation Task Force to

the Deputy Administrator, dated July 1990, and EPA/OAR officials.

Page 15 GAO/RCED-95-70 Clean Air Rulemaking
Appendix II 

Overview of the Traditional Process for

Clean Air Rulemaking

In step 1, EPA develops a one page description of the environmental

problem(s) to be addressed by the rule and assigns the rule a Start Action

Notice (SAN) number. In concept, this is the rule’s beginning.

For air rules, in step 2, EPA establishes a workgroup, led by a

representative of the Office of Air and Radiation, to identify, assess and, if

possible, resolve key technical and policy issues; assess any data needs

and limitations; devise a work plan; collect the necessary scientific and

technical information to support and defend the rulemaking action; and

evaluate regulatory options, including assessing the health and

environmental risks and the costs-benefits of available regulatory options.

Once sufficient information has been collected and analyzed, a draft

regulatory package is prepared that includes the intent, purpose, scope,

and authority for the regulation. At this point, the workgroup assesses the

quality of the proposed regulation and reaches agreement on as many

open issues as possible before forwarding the regulatory package to OAR

senior management for review, resolution of any significant unresolved

issues, and approval.

After OAR management approves the regulatory package, it moves to step 3

for coordination with other EPA media offices (such as the Office of

Water). This is called cross-agency coordination. All tier 1 or tier 2 rules

receive this coordination. Tier 3 rules that do not affect other EPA offices

skip this step. Other tier 3 rules may have this step shortened because they

would be coordinated only with the media office they may affect. In this

step, senior managers from all other interested or affected media offices

within EPA review the draft regulation and supporting materials to assess

the rule’s impact on their programs, resolve any remaining issues, and

assess the quality of the proposed regulation.

Draft air rules then move to step 4 for review and approval by OAR.

Once EPA management is satisfied internally with the proposed rule, a

significant rule moves to step 5. This step is eliminated for nonsignificant

rules. A rule that undergoes this step is submitted to OMB/OIRA for an

independent assessment of the rule’s costs and benefits and impact on the

economy, among other things. After OIRA approves it, the proposed rule is

returned to EPA.

In step 6, the EPA Administrator reviews and approves draft rules, after

which they are published in the Federal Register.

Page 16 GAO/RCED-95-70 Clean Air Rulemaking
Appendix II 

Overview of the Traditional Process for

Clean Air Rulemaking

In step 7, interested and affected parties have an opportunity to comment

on the proposal. These comments are placed in a docket1

 that is open for

public review.

In step 8, depending on the severity of the comments and whether new

information has been introduced, EPA may have minimal or substantive

issues to be addressed before the agency can proceed to final rulemaking.

Comments may cause EPA to have to reconvene the agency workgroup,

collect and analyze more data in support of a rule, more thoroughly

evaluate other regulatory options previously excluded or given low

priority, or significantly alter selected aspects of the proposed rule. Except

for public comment, final rules generally follow the same review and

approval process that proposed rules follow. Under the Clean Air Act, for

most rules, EPA must respond to all substantive comments in the docket, as

well as provide a written explanation of any substantive changes between

the proposed and final rules, at the time the final rule is issued. According

to agency officials, in practice EPA takes these actions for all clean air

rules.

In step 9, final draft tier 1 and tier 2 rules receive cross-agency

coordination, as in step 3. Also, tier 3 rules may have this step shortened

or eliminated, as described in step 3.

In step 10, final rules are reviewed and approved by OAR management, as in

step 4, before being sent to OMB.

In step 11, all significant final rules receive OMB’s review and concurrence,

as in step 5. However, nonsignificant rules eliminate this review step, as

they did in step 5.

In step 12, the EPA Administrator reviews and approves all final rules and

publishes them in the Federal Register.

1

The docket is the collection of documents that form the record for any judicial review of EPA’s

rulemaking actions. It generally consists of scientific and technical reports and data, transcripts of

public hearings, drafts of proposed and final rules, and the correspondence, memorandums, and

comments that EPA used or considered to make a rule.

Page 17 GAO/RCED-95-70 Clean Air Rulemaking
Appendix III 

Additional Information on EPA’s Initiatives

to Streamline the Clean Air Rulemaking

Process

Since the passage of the Clean Air Act Amendments of 1990 but before EPA

instituted the tier process in June 1994, the agency initiated five other

completed or ongoing efforts to reduce the time required to promulgate

clean air rules. This appendix provides additional details on each of the

five initiatives, including their benefits, limitations, and extent of use

through September 30, 1994.

Elimination of Red Border

Review

Before the passage of the Clean Air Act Amendments in November 1990,

EPA’s Clean Air Act Implementation Task Force recognized that EPA needed

to change its internal rulemaking process if the agency was to meet its

expanded rulemaking responsibilities envisioned under the impending act.

In its July 1990 report, the task force recommended, among other things,

that EPA use “workgroup closure”1

 as the agency’s final approval of a

rulemaking, in lieu of the traditional consecutive review processes that EPA

had been using. In January 1991, OAR eliminated one step in the agency’s

traditional rulemaking process—red border review—saving an estimated

16 weeks, or about 4 months, according to an OAR senior official.

Consultation and

Consensus-Building

Under the consultation and consensus-building technique, EPA recognizes

that the most effective rules are not only technically sound and legally

defensible, but also readily implementable—that is, rules for which the

concerns of major interest groups have been thoroughly considered and

fairly addressed. EPA believes that early, informal consultation with

interested groups and affected parties can save time by allowing direct

input into the drafting of the regulation, seeking a more pragmatic solution

among competing interests, reducing the number and severity of adverse

comments during the public comment period, and minimizing the

likelihood of litigation after promulgation. OAR officials said that they have

not tracked the number of clean air rules for which this technique has

been used, but they estimate that some form of this technique—such as

convening a multidisciplinary roundtable early in rule development—has

been employed on more than 100 rulemakings since 1990.

Regulatory Negotiation Under the regulatory negotiation technique, interested and affected parties

negotiate the detailed requirements of a proposed clean air rule.

Negotiation is done by a federally chartered advisory committee consisting

of one or more representatives of the regulated public, public interest

1

Workgroups are EPA-wide, staff-level groups formed to ensure that the agency’s data collection and

analysis methodology is sound and to identify, assess, and, if possible, resolve key technical and policy

issues necessary to develop a proposed or final regulation.

Page 18 GAO/RCED-95-70 Clean Air Rulemaking
Appendix III 

Additional Information on EPA’s Initiatives

to Streamline the Clean Air Rulemaking

Process

groups, and state and local governments who join with an EPA

representative to negotiate the text of a proposed rule before it is

published in the Federal Register. Regulatory negotiations are carried out

in accordance with the Negotiated Rulemaking Act of 1990, the Federal

Advisory Committee Act, and EPA’s internal policies. EPA officials said

regulatory negotiations can save time by allowing interested and affected

parties more direct input into the drafting of the regulation, seeking a

more pragmatic solution among competing interests, reducing the number

and severity of adverse comments during the public comment period, and

minimizing the likelihood of litigation after promulgation. Regulatory

negotiations still have to undergo the traditional public comment period.

Furthermore, EPA officials said this technique will not work for all

rulemakings because it is initially very resource-intensive for EPA and the

participating groups, a factor that has caused EPA to be highly selective in

choosing this approach. They also said this technique may take longer in

some cases than the traditional rulemaking approach because more

planning and negotiations take place to develop a better rule. As of

September 30, 1994, the agency had used regulatory negotiations for only

five clean air rulemakings. The five clean air rules negotiated under this

approach were

• Small Non-Road Engines Emissions Controls,

• Reformulated Fuels,

• National Emissions Standards for Coke Oven Batteries,

• Wood Furniture Manufacturing Industry VOC (volatile organic

compounds) Emission Controls, and

• Architectural and Industrial Maintenance Coatings.

Electronic Federal

Registering

Under the electronic federal registering technique, EPA officials said the

agency saves money by eliminating the need to pay the Government

Printing Office (GPO) for proofing and typesetting thousands of pages for

the Federal Register. Instead, EPA staff ensure the accuracy of notices and

deliver a data disk to GPO ready for printing. While EPA officials said that

this technique does not save time, it saves money that can be used

elsewhere to develop data to support rules and thereby possibly save time

in the rulemaking process. EPA officials estimate this technique is saving

about $500,000 yearly.

Developing Air Pollutant

Standards With Partners

Under the 1990 act, EPA must establish maximum achievable control

technology (MACT) standards for 189 of the nation’s most hazardous and

Page 19 GAO/RCED-95-70 Clean Air Rulemaking
Appendix III 

Additional Information on EPA’s Initiatives

to Streamline the Clean Air Rulemaking

Process

pervasive toxic air pollutants. For a limited group of rules for toxic air

pollutants, EPA plans to establish informal partnerships with state and local

governments, industry, and environmental groups that allow the agency to

benefit from the expertise and resources these organizations can offer.

These partnerships are established early in the MACT rulemaking process

for the purpose of identifying the data available, resolving critical issues

early, and reaching agreement on which non-EPA organization will either

take the lead in developing the rule or work closely with EPA in developing

the rule. By taking this approach, EPA officials believe that the time and

resources required to set each MACT standard will be reduced if EPA, during

the process, can obtain consensus from those groups who have stakes in

regulating toxic air pollutants.

EPA is currently exploring two types of partnering techniques. The first,

“share-a-MACT,” is an approach whereby EPA shares MACT development

responsibilities with one or more groups having a strong interest in the

rule. EPA officials said that in such cases, a non-EPA group willing to

commit resources to developing supporting data and, in some instances,

the initial draft of the proposed rule, agrees to operate under EPA’s general

direction. Such nontraditional rulemakings are expected to save EPA time

and resources, but they may be limited by the need for the affected

industries to be relatively homogenous and have a strong national

association with authority to act in their collective best interests. EPA

currently has two pilot projects under way to evaluate this technique.

A second technique is “adopt-a-MACT,” an approach whereby EPA allows

either a state or local air pollution agency with expertise in the particular

toxic air pollutant in question to take the lead in developing the supporting

data and initial draft of the proposed rule. Such rulemakings are expected

to save EPA time and resources, but they are limited to situations in which

the industry to be regulated is located in one or a few states. According to

EPA officials, as of September 30, 1994, this approach had not been used,

although EPA officials said that some states have expressed a willingness to

undertake projects under this approach. For example, they said the states

of Arizona and New Mexico are interested in jointly undertaking the

development of MACT for primary copper smelters. Their interest is

important because these two states have the expertise in regulating this

industry, since all of the copper smelters in the United States are located

in those states.

Page 20 GAO/RCED-95-70 Clean Air Rulemaking
Appendix IV 

Statutory Deadlines Met and Missed for

EPA’s Clean Air Rulemakings

Table IV.1: Number of Statutory

Deadlines Met and Missed, Annually,

Through November 15, 1994.

Status 11/15/91a 11/15/92b 11/15/93c 11-15-94d

Number due 23 53 27 42

Number met 11 13 10 20

Number missed 12e 40f 17g 22h

Note: The information presented includes some statutorily mandated studies, reports, or other

activities; however, according to agency officials, the majority of the actions required were clean

air rulemakings due on or before the date indicated.

aIncludes statutorily mandated actions from 11/16/90 to 11/15/91.

bIncludes statutorily mandated actions from 11/16/91 to 11/15/92.

cIncludes statutorily mandated actions from 11/16/92 to 11/15/93.

dIncludes statutorily mandated actions from 11/16/93 to 11/15/94.

eEPA has since issued 11 of 12 rules that did not meet the 11/15/91 deadline.

f

EPA has since issued 36 of 40 rules that did not meet the 11/15/92 deadline.

gEPA has since issued 8 of 17 rules that did not meet the 11/15/93 deadline.

hEPA has since issued 4 of 22 rules that did not meet the 11/15/94 deadline.

SUMMARY: Of 145 statutorily mandated actions from 11/15/90 to 11/15/94, EPA met 54 deadlines

and missed 91. As of 12/15/94, EPA had issued 59 of the 91 rulemaking actions that missed the

statutory deadlines; work was under way on the remaining rules missed as well as new

rulemakings required in coming years. EPA officials pointed out that while the agency’s record on

meeting statutory milestones could be better, EPA has not missed any court-ordered deadlines

for clean air rules.

Source: EPA’s Management and Accountability Process System; data as of November 15, 1994.

Table IV.2: Unmet Clean Air Act

Statutory Deadlines as of

December 20, 1994 Name of rule

Statutory

deadline

States submit selected State Implementation Plan (SIP) provisions for

moderate and above ozone nonattainment areas 11/15/93

Report to Congress on the California low-emissions vehicle 06/30/94

EPA action on final phase I sulfur dioxide and nitrogen oxide permits 08/15/93

Submit consumer/commercial products emissions report to Congress 11/15/93

Submit Section 811 report (international competitiveness) to Congress 08/15/92

Publish results of ozone design value study 11/15/93

Publish wood furniture emissions control techniques guidelines 11/15/93

Finalize sulfur dioxide allowance opt-in-regulation - combustion sources 05/15/92

Publish final acid deposition standards study 11/15/93

Final guidance for modification of major sources of hazardous air

pollutants 05/15/92

(continued)

Page 21 GAO/RCED-95-70 Clean Air Rulemaking
Appendix IV 

Statutory Deadlines Met and Missed for

EPA’s Clean Air Rulemakings

Name of rule

Statutory

deadline

Final maximum achievable control technology (MACT) standards for

secondary lead smelters 11/15/94

Finalize MACT standards for petroleum refineries 11/15/94

Final MACT standards for aerospace industry 11/15/94

Promulgate standards for large municipal waste combustors 11/15/91

Promulgate standards for small municipal waste combustors 11/15/92

Finalize rules for risk management plans and prevention of accidental

releases of hazardous air pollutants 11/15/93

Study of emissions from electric utilities generating units 11/15/93

Nitrogen oxides New Source Performance Standards for new fossil fuel

fired utilities 01/01/94

Publish surface coal mining emissions study 11/15/93

Promulgate nitrogen oxides emissions reduction rule 05/15/92

Initiate operation of allowance tracking system 05/15/92

Report to Congress: production/consumption of ozone depleting

chemicals 11/15/93

Report on Acid Rain program in Canada 01/01/94

Promulgate rules for enhanced monitoring of major stationary sources 11/15/92

Promulgate chlorofluorocarbon labeling regulations 05/15/92

MACT standards for polymers and resins I 11/15/94

MACT standards for polymers and resins II 11/15/94

Medical waste incinerator rule 11/15/92

Promulgate MACT standards for printing and publishing 11/15/94

Promulgate MACT standards for asbestos 11/15/94

Promulgate MACT standards for wood furniture 11/15/94

Promulgate MACT standards for off site waste 11/15/94

Promulgate MACT standards for shipbuilding 11/15/94

Promulgate tank vessel emissions rule 11/15/92

Source: Planning Staff, Office of the Director, Office of Air Quality Planning and Standards, EPA’s

Office of Air and Radiation.

Page 22 GAO/RCED-95-70 Clean Air Rulemaking
Appendix V 

Major Contributors to This Report

Resources,

Community, and

Economic

Development

Division, Washington,

D.C.

Allen Li, Associate Director

William F. McGee, Assistant Director

Norfolk Regional

Office

James R. Beusse, Evaluator-in-Charge

Hamilton C. Greene, Jr., Evaluator

Philip L. Bartholomew, Evaluator

(160254) Page 23 GAO/RCED-95-70 Clean Air Rulemaking
Ordering Information

The first copy of each GAO report and testimony is free.

Additional copies are $2 each. Orders should be sent to the

following address, accompanied by a check or money order

made out to the Superintendent of Documents, when

necessary. Orders for 100 or more copies to be mailed to a

single address are discounted 25 percent.

Orders by mail:

U.S. General Accounting Office

P.O. Box 6015

Gaithersburg, MD 20884-6015

or visit:

Room 1100

700 4th St. NW (corner of 4th and G Sts. NW)

U.S. General Accounting Office

Washington, DC

Orders may also be placed by calling (202) 512-6000 

or by using fax number (301) 258-4066, or TDD (301) 413-0006.

Each day, GAO issues a list of newly available reports and

testimony. To receive facsimile copies of the daily list or any

list from the past 30 days, please call (301) 258-4097 using a

touchtone phone. A recorded menu will provide information on

how to obtain these lists.

PRINTED ON RECYCLED PAPER
United States

General Accounting Office

Washington, D.C. 20548-0001

Official Business

Penalty for Private Use $300

Address Correction Requested

Bulk Mail

Postage & Fees Paid

GAO

Permit No. G100
GAO/RCED-95-70 Clean Air Rulemaking