Posthearing Questions
Major Management Challenges at the Department of the Interior Gao ID: GAO-07-659R March 28, 2007On February 16, 2007, GAO testified at the Committee on Natural Resources' oversight hearing on "Reports, Audits, and Investigations by the Government Accountability Office and the Office of Inspector General Regarding the Department of the Interior." This letter responds to the February 26, 2007 congressional request, in which members of the Committee asked additional questions about GAO's past reports. To answer these questions, we relied primarily on a number of GAO reports, as well as our body of knowledge in these areas. We prepared this letter during March 2007 in accordance with generally accepted government auditing standards. Because this letter was primarily based on previously issued reports, we did not seek agency comments on a draft of this letter.
Past GAO reports have identified a number of areas in which the Department of the Interior (Interior) has not collected all revenue authorized. The most significant source of forgone revenue owing to mismanagement is the department's implementation of the Outer Continental Shelf Deep Water Royalty Relief Act enacted in 1995--amounting to at least $1 billion--because of the failure to include price thresholds in leases issued in 1998 and 1999. All other sources of potential lost revenue from Interior programs that we have reported on pale in comparison with this amount. In June 2005, we reported that the increased permitting activity between 1999 and 2004 had occurred at the expense of environmental mitigation activities owing to a lack of resources available to conduct mitigation activities. The effect of a continued increase in permit approvals on surrounding communities and the environment will depend on (1) the environmental stipulations in the leases, (2) the conditions of approval in the permits, and (3) the Bureau of Land Management's (BLM) level of monitoring and enforcement of the lease stipulations and permit conditions. If BLM is required to process even more permits without receiving any additional resources, it is likely that the agency's ability to perform the necessary environmental mitigation activities would continue to be eroded. While we have long recommended consideration of a legislated process for settlement of Indian tribe claims before litigation is filed, we do not have a position on legislated settlement of the existing lawsuits or extension of the statute of limitations for tribal trust fund claims. As early as 1992, we recommended to Interior that it consider alternatives to account reconciliation including, if other options were unsuccessful, seeking a legislated settlement process. Since 1997, many tribes have initiated lawsuits with claims related to account balances. The Congress, in its review of Interior's timetable, may disagree with the duration of the trust reforms and choose an alternative completion and termination date. The Office of the Special Trustee (OST) plans to complete almost all of its key trust fund management reforms by November 2007. OST told us that after November 2007 it will still need to verify the data in the Bureau of Indian Affair's trust asset and accountability management system for (1) Indian lands with recurring income for which the land and leasing records in the management system matched with the information in the legacy realty system and (2) Indian lands without recurring income. Having adequate financial assurances to pay reclamation costs for BLM land disturbed by hardrock operations is critical to ensuring that the land is reclaimed if operators fail to complete reclamation as required. Financial assurances must be based on sound reclamation plans and current cost estimates so that BLM can be confident that financial assurances will fully cover reclamation costs.
GAO-07-659R, Posthearing Questions: Major Management Challenges at the Department of the Interior
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March 28, 2007:
The Honorable Nick J. Rahall II:
Chairman, Committee on Natural Resources:
House of Representatives:
Subject: Posthearing Questions: Major Management Challenges at the
Department of the Interior:
Dear Mr. Chairman:
On February 16, 2007, I testified at the Committee's oversight hearing
on "Reports, Audits, and Investigations by the Government
Accountability Office and the Office of Inspector General Regarding the
Department of the Interior." [Footnote 1] This letter responds to your
February 26, 2007 request, in which members of the Committee asked
additional questions about GAO's past reports. To answer these
questions, we relied primarily on a number of GAO reports, as well as
our body of knowledge in these areas. We prepared this letter during
March 2007 in accordance with generally accepted government auditing
standards. Because this letter was primarily based on previously issued
reports, we did not seek agency comments on a draft of this letter. Our
responses to the questions follow.
1. Based on GAO's reports and audits, what are the fiscal costs
resulting from mismanagement of programs and the revenue losses
associated with the failure to collect fair market value for the use
and development of resources under the jurisdiction of the Department
of the Interior? What priorities should Congress pursue to address
these problems?
Past GAO reports have identified a number of areas in which the
Department of the Interior (Interior) has not collected all revenue
authorized. The most significant source of forgone revenue owing to
mismanagement is the department's implementation of the Outer
Continental Shelf Deep Water Royalty Relief Act enacted in 1995--
amounting to at least $1 billion--because of the failure to include
price thresholds in leases issued in 1998 and 1999. All other sources
of potential lost revenue from Interior programs that we have reported
on pale in comparison with this amount. We have also identified revenue
that the department could collect should the Congress choose to give it
additional authority in certain programs.
Oil and gas revenue. While precise estimates remain elusive at this
time, as we testified, our work to date shows that royalty relief under
the Outer Continental Shelf Deep Water Royalty Relief Act will likely
cost billions of dollars in forgone royalty revenue; at least $1
billion has already been lost.[Footnote 2] In October 2004, the
Minerals Management Service (MMS) estimated that forgone royalties on
deep water leases issued under the act from 1996 through 2000 could be
as high as $80 billion in total. However, there is much uncertainty in
these estimates because of ongoing legal challenges and other factors
that make it unclear how many leases will ultimately receive royalty
relief and of the inherent complexity in forecasting future royalties.
We are currently assessing MMS's estimate in light of changing oil and
gas prices, revised estimates of future oil and gas production, and
other factors. At the completion of our work we hope to provide a
discussion of some of the alternative ways to address the forgone
revenue.
Oil and gas permit fees. Should the Congress choose to provide Interior
with new legislative authority, additional revenues could be collected
to process applications for oil and gas permits. In June 2005, we
recommended that the Bureau of Land Management (BLM) use its authority
and move forward with its plans to establish a fee structure that would
recover its costs for processing applications for oil and gas permits.
In response to our recommendation, BLM issued a proposed regulation in
July 2005 that included a $1,600 fee for processing oil and gas
permits.[Footnote 3] However, the Energy Policy Act of 2005, which was
enacted 2 months after our report was issued, prohibited Interior from
initiating the new fee. In its fiscal year 2008 budget request,
Interior has proposed that the Energy Policy Act be amended to allow
the new fee to move forward. Interior estimates that the new fee would
generate $21 million in additional revenue for fiscal year 2008.
Air tour revenue. In May 2006, we reported that Interior's National
Park Service was not collecting all the required fees from companies
conducting air tours over three highly visited national park units that
are authorized to collect fees.[Footnote 4] Since it began collecting
this fee in 1994, the Park Service has collected about $19 million at
the three park units. However, we identified almost $2 million in fees
that had not been collected. The Park Service was not collecting all
the required fees because of (1) an inability to verify the number of
air tours conducted over the three park units and, therefore, to
enforce compliance and (2) confusion resulting from differing
geographic applicability of two laws governing air tours in or around
park units.
We also reported that the Park Service could collect additional
revenues if the Congress expanded the authority to charge air tour fees
from the current three park units to an additional 83 units with air
tours.[Footnote 5] While the three park units account for about one-
half of all the air tour activity, expanding the fee would enable the
Park Service to collect additional revenue to help develop and monitor
air tour management plans. Depending on the number of additional park
units included in an expansion of the air tour fee authority, the Park
Service could potentially collect approximately an additional $1
million to $4 million annually.
Grazing revenue. In September 2005, we reported that the grazing fee
BLM and the U.S. Department of Agriculture's Forest Service charge,
which was $1.43 per animal unit month (AUM) in 2004,[Footnote 6] is
established by formula and is generally much lower than the fees
charged by other federal agencies, states, and private
ranchers.[Footnote 7] Other federal agencies, states, and private
ranchers generally establish fees to obtain the fair market value of
the forage and, as a result, charged fees ranging from $0.29 to $112
per AUM in fiscal year 2004, depending on the location, range
condition, and accompanying in-kind service. The formula used to
calculate the BLM and the Forest Service grazing fee incorporates
rancher's ability to pay; therefore, the current purpose of the fee is
not primarily to capture the fair market value of the forage or to
recover the agencies' expenditures. As a result, BLM's and the Forest
Service's grazing receipts fell short of their expenditures on grazing
in fiscal year 2004 by almost $115 million. We reported that if the
purpose of the grazing fees was to recover expenditures, the agencies'
grazing fees would have been about $7.64 and $12.26 per AUM,
respectively. Alternatively, if the purpose of the fees was to gain
fair market value, the agencies' fees would vary depending on the
market. As I stated in my testimony, were BLM to implement approaches
other agencies use to set grazing fees, it could help close the gap
between expenditures and receipts, and more closely align its fees with
market prices. We recognize, however, that the purpose and the amount
of BLM's grazing fee are ultimately for the Congress to decide.
Royalties from hardrock mining. As we reported in June 2005, the
General Mining Act of 1872 encouraged development of the West by
allowing individuals to stake claims and obtain rights to gold, silver,
copper, and other valuable hardrock mineral deposits on land belonging
to the United States.[Footnote 8] The law, however, does not authorize
the collection of royalties. Since 1872, thousands of claimants and
operators have extracted billions of dollars of hardrock minerals from
federal lands without being required to pay royalties on any hardrock
minerals extracted. A February 2007 Congressional Budget Office report
stated that $35 million in revenue could be generated over a 5-year
period should the Congress authorize an 8-percent royalty on the net
proceeds from all future production of hardrock minerals from federal
lands.[Footnote 9] The report also notes that if the 8-percent royalty
was applied to gross proceeds, it would generate additional revenue and
be less costly to administer.
2. As you cited in your 2005 report entitled, "Oil and Gas Development:
Increased Permitting Activity Has Lessened BLM's Ability to Meet Its
Environmental Protection Responsiblities," BLM staff do not have the
necessary resources to perform the required environmental inspections.
The Bush Administration's FY 2008 budget proposal will increase the
number of Applications for Permits to Drill (APDs) processed by nearly
55 percent from 7,736 to nearly 12,000 in 2008. While it is important
that the Bush Administration focus its efforts to meet the Nation's
growing demand for energy, it must be mindful of the vast growth and
environmental effects that this will have on the "Evolving West." What
effect will this continued increase in permit approvals have on the
surrounding communities and environment? Is there a "tipping point?"
And, if so, at what point do you think the Administration's emphasis on
oil and gas development will become excessive?
In June 2005, we reported that the increased permitting activity
between 1999 and 2004 had occurred at the expense of environmental
mitigation activities owing to a lack of resources available to conduct
mitigation activities. The effect of a continued increase in permit
approvals on surrounding communities and the environment will depend on
(1) the environmental stipulations in the leases, (2) the conditions of
approval in the permits, and (3) BLM's level of monitoring and
enforcement of the lease stipulations and permit conditions. If BLM is
required to process even more permits without receiving any additional
resources, it is likely that the agency's ability to perform the
necessary environmental mitigation activities would continue to be
eroded.
Before the Energy Policy Act was enacted in August 2005, BLM had the
authority to assess and charge fees to cover its expenses for
processing oil and gas permits. The revenues from such fees would have
enabled BLM to supplement its program resources. As I noted in my
response to Question 1, we had recommended, and BLM had begun to
establish, a fee structure to recover its costs for processing
applications for oil and gas permits, but the Energy Policy Act
prohibited Interior from initiating the new fee. Nevertheless, Interior
has continued to express interest in initiating such a fee and has
proposed that the Energy Policy Act be amended to allow the fee to move
forward. Authorizing such a fee to cover BLM's expenses for processing
permits could presumably free bureau staff up to carry out
environmental mitigation responsibilities, should the agency choose to
use the resources for this purpose.
The extent to which federal lands should be used for oil and gas
exploration and development and the environmental effects that will be
tolerated are policy decisions that are up to the Congress and the
administration to make. Balancing the competing demands for the use of
these lands is an ongoing challenge for the Congress and the agencies
that manage them.
3a. As you will recall, GAO found that the Fish and Wildlife Service
(FWS) had very poor records characterizing the environmental threat of
oil and gas activities on refuge lands. To your knowledge, has the
Service completed a comprehensive assessment of the cumulative
environmental impacts of oil and gas development on refuges?
FWS has taken some steps to identify a possible approach to developing
and maintaining data on the effects of oil and gas activities on refuge
resources, although it has not identified funding to support this
effort. It is not clear whether the agency will conduct a comprehensive
assessment of the cumulative environmental impacts of oil and gas
development on refuges once it gathers these data.
3b. GAO also found that the Fish and Wildlife Service did not have any
inventory of oil and gas infrastructure on refuges and was unable to
estimate future reclamation costs. Has the Service completed this
inventory and compiled a list and cost estimate for outstanding
reclamation needs?
Collecting data on the nature and extent of oil and gas activities on
refuge lands is part of the effort described in response to Question
3a. Because the data have not yet been collected under this effort, FWS
cannot comprehensively identify needed reclamation or associated costs.
3c. Has the Fish and Wildlife Service developed consistent system-wide
policies and permit procedures, including revised fees for oil and gas
activities and infrastructure on refuges, and revised the agency's
Refuge Manual accordingly? And, do we have any estimates of the amount
of revenue the United States could be collecting, but is not, due to
the agency's failure to act?
FWS has drafted a handbook for the management of oil and gas activities
on wildlife refuges, although it has not yet been made final or public.
Therefore, it is not clear what FWS's policies or procedures will be.
We have not examined what revenue is available to FWS through fees for
oil and gas activities and infrastructure on refuges. It is important
to note that FWS only has the authority to retain money paid for
damages to refuge lands in Louisiana and Texas. The money is to be used
to make damage assessments, mitigate or restore damages, and monitor
and study recovery of the resources. As of the August 2003 issuance of
our report, fees had only been collected in Louisiana.[Footnote 10] To
address this inconsistency, FWS officials told us they are drafting
guidance to clarify how these regions should apply their authority to
collect and retain fees. Furthermore, Congress would need to provide
FWS with the authority to retain money paid for damages for refuge
lands beyond Louisiana and Texas.
3d. GAO reported that the Service has adequate authority to regulate
outstanding mineral rights on refuges and recommended that the Service
work with the Solicitor's office to determine the Service's existing
authority to issue permits and set reasonable conditions. Did the
Service ever follow through on this recommendation?
According to FWS officials, the agency has consulted with Interior's
Office of the Solicitor, which has concurred with the discussion of
FWS's authority in the draft oil and gas handbook mentioned in the
response to Question 3c. However, it is not clear what the official FWS
position is concerning the agency's authority because the handbook is
not yet public.
4a. As 2006 drew to a close approximately 100 lawsuits were filed by
Indian tribes against the United States for an accounting of their
tribal trust funds because the 109TH Congress adjourned without
extending the statute of limitations for such claims as it has since
2001. In the past the GAO has encouraged the United States to explore
the settlement of these claims before they erupted into litigation.
Does the GAO still support the settlement concept? Does the GAO have
any opinion whether Congress should re-extend the statute of
limitations to avoid litigation?
While we have long recommended consideration of a legislated process
for settlement of claims before litigation is filed, we do not have a
position on legislated settlement of the existing lawsuits or extension
of the statute of limitations for tribal trust fund claims. From 1992
through 1997, we monitored and reported on various aspects of
Interior's planning, execution, and reporting of results for its tribal
trust fund account reconciliation project, which was statutorily
required beginning in 1987. Between 1992 and 1996, we reported that,
although Interior had made a massive attempt to reconcile tribal
accounts during its reconciliation project, missing records and systems
limitations made full reconciliation impossible. Accordingly, as early
as 1992, we recommended to Interior that it consider alternatives to
account reconciliation including, if other options were unsuccessful,
seeking a legislated settlement process. Since 1997, many tribes have
initiated lawsuits with claims related to account balances.
4b. The GAO's recent (December 2006) report on the Office of the
Special Trustee (OST) indicates that the OST uses contractors
extensively, but reports from Indian Country indicate that the OST has
not made much of an effort to make contracting opportunities available
to Indian tribes. In light of the overall federal policy of tribal self-
determination, do you agree that there should be some effort to use
Native American businesses to the greatest extent possible?
We are not in a position to offer an opinion on this issue because our
December 2006 report did not examine OST's efforts to make contracting
opportunities available to Indian tribes.[Footnote 11] However, we
found that OST's largest contractor in fiscal years 2004 and 2005 was
Chickasaw Nation Industries, an Indian-owned 8(a) small business. OST
used an indefinite delivery, indefinite quantity contract with
Chickasaw Nation Industries that allowed OST to award contract task
orders quickly because there is no requirement for competition. OST's
second largest contractor in fiscal years 2004 and 2005 was SEI
Investments--which is not an Indian-owned 8(a) small business--for the
operation and maintenance of OST's trust fund accounting system, a
modified off-the-shelf version of SEI's commercial trust accounting
system. More than 150 large financial and investment institutions use
SEI's trust management systems.
4c. No one thought that the Office of the Special Trustee would exist
in 2007. It was supposed to be a temporary position. Should Congress
set a specific date for the termination of that office as a number of
Indian tribes have requested?
We believe the requirements in the American Indian Trust Fund
Management Reform Act of 1994 are sufficient for establishing a
termination date for OST.[Footnote 12] The act directed OST to develop
a comprehensive strategic plan with a timetable for implementing
identified trust fund management reforms and a date when OST will be
terminated. However, we found that OST had not established a timetable
or a date for OST's termination, and we recommended that the Secretary
of the Interior direct the Special Trustee to provide the Congress with
a timetable for completing trust fund management reforms. In response,
Interior stated that it expects to have a timetable by late June 2007
for implementing the remaining trust reforms including a date for the
proposed termination or eventual disposition of OST.
The Congress, in its review of Interior's timetable, may disagree with
the duration of the trust reforms and choose an alternative completion
and termination date. OST plans to complete almost all of its key trust
fund management reforms by November 2007. OST told us that after
November 2007 it will still need to verify the data in the Bureau of
Indian Affair's trust asset and accountability management system for
(1) Indian lands with recurring income for which the land and leasing
records in the management system matched with the information in the
legacy realty system and (2) Indian lands without recurring income.
4d. Over the last few years the Office of the Special Trustee has taken
authorities and programs away from the Bureau of Indian Affairs as well
as millions of valuable resources. This was never intended by Congress
when OST was established. Did your studies show what the Department of
the Interior plans to do with all these activities when they finally
shut down the Office of the Special Trustee? Did you receive any
assurances that the administration will continue these programs or can
this build-up of OST be a precursor to terminating these
responsibilities?
Regarding the first part of the question, neither the Secretary of the
Interior nor the Special Trustee has stated what will be done when the
trust reforms are completed. Accordingly, we recommended that the
Secretary provide the Congress with a plan for future trust operations,
including, if the decision is made to terminate OST, a determination of
where these operations will reside.[Footnote 13] The American Indian
Trust Fund Management Reform Act of 1994 states that the Special
Trustee, in providing the Congress with a 30-day notice of completion,
may recommend the continuation, or permanent establishment, of OST if
the Special Trustee concludes that continuation or permanent
establishment is necessary to efficiently discharge the Secretary's
trust responsibilities.
Regarding the second part of your question, the Special Trustee for
American Indians shares your concern that OST's trust fund management
responsibilities must continue into the future whether or not OST
itself is terminated. OST has made a significant investment in
developing an integrated trust management system to better ensure that
ownership of lease and other income is accurately identified and paid
into appropriate trust accounts. Taxpayer funds would be wasted if
these programs were terminated without another capable organization
identified to fulfill the Secretary's trust fund responsibilities.
5. I understand that most of the properties listed in your report
regarding financial assurances for hardrock mining were in bankruptcy.
In some instances, the discrepancy in the bond amount and the actual
amount of money required for reclamation were due to the fact that
reclamation conditions were exacerbated as a result of the bankruptcy
(insufficient funds to run water pumps, etc.) In other words, the bond
would have been adequate had the company remained solvent. Would
legislation such as the Good Samaritan legislation introduced in the
109TH Congress by Congressman Duncan, H.R. 5404, which provides limited
liability to private parties willing to assume reclamation (and
contribute money or in kind services), help the federal government in
reclaiming these properties?
Having adequate financial assurances to pay reclamation costs for BLM
land disturbed by hardrock operations is critical to ensuring that the
land is reclaimed if operators fail to complete reclamation as
required. Financial assurances must be based on sound reclamation plans
and current cost estimates so that BLM can be confident that financial
assurances will fully cover reclamation costs. However, in our June
2005 report, we found that BLM did not have a process for ensuring that
adequate assurances were in place.[Footnote 14] As a result, we
reported that 48 hardrock operations in seven states had ceased and had
not been reclaimed by operators, as required, leaving BLM with about
$56.4 million in unfunded reclamation costs. Reclamation costs were not
paid by the operators in these cases because some of the operators had
outdated reclamation plans or cost estimates, while other operators had
no financial assurances at all.
Our work on hardrock mining was completed nearly a year before the Good
Samaritan legislation was introduced. Consequently, we did not evaluate
the legislation's applicability to the problems that we found with
financial assurances for hardrock mining operations. However, the
recommendations in our report are intended to help BLM avoid being left
with unfunded reclamation costs in the future. Specifically, we
recommended that BLM state office directors establish an action plan
for ensuring that operators of hardrock operations have required
financial assurances and that the financial assurances are based on
sound reclamation plans and current cost estimates, so that they are
adequate to pay all of the estimated costs of required reclamation if
operators fail to complete the reclamation. If properly implemented,
this should help BLM reduce or eliminate instances where financial
assurances are underestimated or based on unsound reclamation plans.
While the agency has taken steps to implement these recommendations, we
have not fully evaluated the impact of its actions.
We are sending copies of this report to the Chairman and Ranking
Minority Members with jurisdiction over the Department of the Interior
and the Honorable Dirk Kempthorne, Secretary of the Interior. We will
make copies available to others upon request, and the report will be
available at no charge on the GAO Web site at http://www.gao.gov. If
you have any questions, please contact me on (202) 512-3841 or at
nazzaror@gao.gov. Contact points for our offices of Congressional
Relations and Public Affairs may be found on the last page of this
report.
Sincerely yours,
Signed by:
Robin M. Nazzaro:
Director, Natural Resources and Environment:
(360821):
FOOTNOTES
[1] GAO, Department of the Interior: Major Management Challenges, GAO-
07-502T (Washington, D.C.: Feb. 16, 2007).
[2] GAO, Oil and Gas Royalties: Royalty Relief Will Likely Cost the
Government Billions, but the Final Costs Have Yet to Be Determined, GAO-
07-369T (Washington, D.C.: Jan. 18, 2007)
[3] 70 Fed. Reg. 41532, 41542 (July 19, 2005).
[4] GAO, National Parks Air Tour Fees: Effective Verification and
Enforcement Are Needed to Improve Compliance, GAO-06-468 (Washington,
D.C.: May 11, 2006).
[5] GAO-06-468.
[6] An AUM is the amount of forage that a cow and her calf can eat in 1
month.
[7] GAO, Livestock Grazing: Federal Expenditures and Receipts Vary,
Depending on the Agency and the Purpose of the Fee Charged, GAO-05-869
(Washington, D.C.: Sept. 30, 2005).
[8] GAO, Hardrock Mining: BLM Needs to Better Manage Financial
Assurances to Guarantee Coverage of Reclamation Costs, GAO-05-377
(Washington, D.C.: June 20, 2005).
[9] Congressional Budget Office, Budget Options (Washington, D.C.: Feb.
2007). The Congressional Budget Office's estimate assumes that the
states in which mining takes place would receive 10 percent of the
royalty receipts, and that there would be no surge in patenting
activity before royalties were imposed; such a surge could boost
immediate patenting receipts and diminish future royalties.
[10] GAO, National Wildlife Refuges: Opportunities to Improve the
Management and Oversight of Oil and Gas Activities on Federal Lands,
GAO-03-517 (Washington, D.C.: Aug. 28, 2003).
[11] GAO, Indian Issues: The Office of the Special Trustee Has
Implemented Several Key Trust Reforms Required by the 1994 Act, but
Important Decisions about Its Future Remain, GAO-07-104 (Washington,
D.C.: Dec. 8, 2006).
[12] GAO-07-104.
[13] GAO-07-104.
[14] GAO-05-377.
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