oversight

Status of the Tongass National Forest Land and Resource Management Plan Under the Small Business Regulatory Enforcement Fairness Act

Published by the Government Accountability Office on 1997-07-03.

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

GAOO
GA   r   United States
         General Accounting Office
         Washington, D.C. 20548

         Office of the General Counsel


         B-275178

         July 3, 1997

         The Honorable Ted Stevens
         Chairman
         Committee on Appropriations
         United States Senate

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

         The Honorable Don Young
         Chairman
         Committee on Resources
         House of Representatives

         Subject: Status of the Tongass National Forest Land and Resource Management
                  Plan Under the Small Business Regulatory Enforcement Fairness Act

         This is in response to your joint letter, dated June 5, 1997, requesting our views on
         whether the Tongass National Forest Land and Resource Management Plan, issued
         by the United States Forest Service, Department of Agriculture, and signed on
         May 23, 1997, is a "rule" under the provisions of the Small Business Regulatory
         Enforcement Fairness Act (SBREFA). 5 U.S.C. § 801 et seq.

         On June 18, 1997, the Chief of the Forest Service forwarded copies of the Plan to
         both Houses of Congress and our Office following the procedures outlined in
         chapter 8 of title 5 of the United States Code. However, the transmittal letter
         accompanying the Plan stated that "The Forest Service does not consider land and
         resource management plans to be subject to the requirements of 5 U.S.C. § 800." In
         addition, on the "Congressional Notice and Review Report" attached to the
         transmittal letter, the Forest Service classifies the Plan as "non-major."' We have
         informally requested but have not received the views of the Department of




         'A "major rule" is one found by the Office of Information and Regulatory Affairs,
         Office of Management and Budget, to meet certain criteria, such as whether the rule
         will have an annual effect on the economy of $100 million or more. 5 U.S.C.
         § 804(2).
Agriculture and the Office of Management and Budget on the applicability of
chapter 8.

For the reasons which follow, we conclude that the Tongass Plan constitutes a
"rule" as defined in 5 U.S.C. § 804(3). Therefore, submittal of a report, as required
by 5 U.S.C. § 801(a)(1)(A), to each House of Congress and the General Accounting
Office was necessary in order for the rule to become effective. If the Office of
Information and Regulatory Affairs determines the rule to be major, the effective
date must be delayed for 60 days after the submission of the report.

Rules Subiect to Congressional Review

Chapter 8 of title 5, United States Code, entitled "Congressional Review of Agency
Rulemaking," is designed to keep Congress informed about the rulemaking activities
of federal agencies and to allow for congressional review of rules. The
requirements of chapter 8 take precedence over any other provision of law.2

Section 801(a)(1) provides that before a rule becomes effective, the agency
promulgating the rule must submit to each House of Congress and to the
Comptroller General a report containing:

     "(i) a copy of the rule;

     "(ii) a concise general statement relating to the rule, including whether
     it is a major rule; and

     "(iii) the proposed effective date of the rule."

On the date the report is submitted, the agency also must submit to the Comptroller
General and make available to each House of Congress certain other documents,
including a cost-benefit analysis, if any, and agency actions relevant to the
Regulatory Flexibility Act, 5 U.S.C. § 601 et seA., and the Unfunded Mandates
Reform Act of 1995, 5 U.S.C. § 202 et A., and any other relevant information or
requirements under any other legislation or any relevant executive orders. 5 U.S.C.
§§ 801(a)(1)(B)(i)-(iv).

Once a rule, whether determined to be a major rule or not, is submitted in
accordance with section 801(a)(1), special procedures for congressional
consideration of a joint resolution of disapproval are available for a period of
60 session days in the Senate or 60 legislative days in the House. 5 U.S.C. § 802.
These time periods can be extended upon a congressional adjournment. 5 U.S.C.
§ 801(d)(1).




25U.S.C. § 806(a) provides that: "This chapter shall apply notwithstanding any
other provision of law."

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A major rule may not become effective until 60 days after it is submitted to
Congress or published in the Federal Register, whichever is later. 5 U.S.C.
§ 801(a)(3)(A).

Section 804(3) provides that for purposes of chapter 8, with some exclusions, the
term "rule" has the same meaning given the term in 5 U.S.C. § 551(4), which defines
rules subject to the Administrative Procedure Act (APA). The APA definition of a
"rule" is as follows:

    "the whole or part of an agency statement of general or particular
    applicability and future effect designed to implement, interpret, or
    prescribe law or policy or describing the organization, procedure or
    practice requirements of an agency and includes the approval or
    prescription for the future of rates, wages, corporate or financial
    structures or reorganizations thereof, prices, facilities, appliances,
    services or allowances therefor or of valuations, costs, or accounting,
    or practices bearing on any of the foregoing ...."

Chapter 8 contains several exclusions from the APA definition of "rule":

    "(A) any rule of particular applicability, including a rule that approves
    or prescribes for the future rates, wages, prices, services, or allowances
    therefor, corporate or financial structures, reorganizations, mergers or
    acquisitions thereof, or accounting practices or disclosures bearing on
    any of the foregoing;

    (B) any rule relating to agency management or personnel; or

    (C) any rule of agency organization, procedure, or practice that does
    not substantially affect the rights or obligations of non-agency parties."
    5 U.S.C. § 804(3).

Land Management Resource Plans Generally

The National Forest Management Act (16 U.S.C. §§ 1600-1614), which amended the
Forest and Rangeland Resources Act, directs the Secretary of Agriculture to
develop, maintain, and revise Land Resource Management Plans (LRMPs) for units
of the National Forest System. LRMPs guide all natural resource management
activities and establish management standards and guidelines for national forests.
When approved, among other things, an LRMP:

(1) establishes forest multiple-use goals and objectives;

(2) establishes forest-wide management requirements to fulfill the requirements of
    16 U.S.C. § 1604 applying to future activities;

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(3) establishes management areas and management area direction applying to future
    activities in that management area;

(4) designates suitable timber land and establishes allowable timber sale quantity;3

(5) establishes nonwilderness allocations and wilderness designation
    recommendations; and

(6) establishes monitoring and evaluation recommendations.4

LRMPs are to be revised when conditions have significantly changed, or at least
every 15 years.

Tongass Land and Resource Management Plan

The Tongass LRMP is a revision of the previous Tongass LRMP which was approved
in 1979 and amended in 1986 and 1991. The approved LRMP consists of the Record
of Decision (ROD) and the Forest Plan, which is based on alternative 11 in the
accompanying Final Environmental Impact Statement.

In order to ensure that the Plan was legally defensible, scientifically credible, and
able to sustain the Forest's resources, the revision process was extraordinarily long
and expensive. The revision process began in July 1987. In late 1987, over 4,000
copies of preliminary environmental impact issues were provided to interested
parties, and 22,000 southeast Alaska homes and businesses received copies through
newspaper inserts. This was followed by community workshops, radio and
television news releases, community postings, and local newspaper stories. The
Forest Service received and considered public comments on a draft plan released in
June 1990, a supplemental plan dated September 1991, and an April 1996 revision to
the supplement. Each of these documents was accompanied by a draft Environ-
mental Impact Statement (EIS) or a supplemental EIS. During this time, the Forest
Service received over 30,000 comments and was advised by various panels
composed of experts and scientists. The cost of developing the revised plan and
the accompanying EIS is over $13 million.




3The allowable sale quantity is the maximum quantity of timber that may be sold
from the area of suitable land covered by a forest plan over a decade. The quantity
is usually expressed on an annual basis as the "average annual allowable sale
quantity."

4Citizens for Environmental Quality v. United States, 731 F. Supp. 970, 977-978
(D. Colo. 1989).

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The LRMP sets forth the management direction for the Tongass Forest and the
desired condition of the Forest to be attained through Forest-wide multiple-use
goals and objectives. These goals and objectives are subject to management
standards and guidelines for each of 19 individual Land Use Designations (LUDs).
Areas of land in the Forest are allocated to LUDs. Locations of the boundaries of
the LUDs and management areas are set out in the Forest Plan map. Examples of
the LUDs are "Wilderness," "Old-Growth Habitat," "Timber Production," and "Scenic
River." The Plan describes 22 Resources which are addressed in each of the LUDs
as to the manner in which they should be managed. Examples of the Resources are
"Air," "Fish," "Karst and Caves," "Minerals and Geology," "Timber," and "Wetlands."

One often controversial subject of LRMPs is timber management. The Tongass
LRMP establishes 2.67 billion board feet per decade or 267 million board feet per
year as the allowable sale quantity for timber in the Forest. While the yearly
amount may vary during the decade, the 2.67 billion board feet is a decadal ceiling
of the amount of timber that will be offered for sale from suitable timberland in the
Forest. The LRMP also establishes which areas of the forest are subject to logging.

Analysis

There are two questions presented. The first is whether the LRMP is a "rule," that
is, an "agency statement of general . . . applicability and future effect designed to
implement, interpret, or prescribe law or policy." 5 U.S.C. § 551(4). The second is
whether any of the statutory exceptions in chapter 8 are applicable.

A summary description of the LRMP shows clearly that it meets the APA definition
of a "rule" quoted above. The LRMP implements the requirement of the National
Forest Management Act that the Secretary of Agriculture develop, maintain, and
revise LRMPs and assure compliance with the Multiple-Use Sustained-Yield Act of
1960 (16 U.S.C. §§ 528-531) in setting forest management direction and harvesting
levels. It prescribes the manner or the policy of the Forest Service for managing
the Tongass National Forest for the future (10-15 years). The various management
prescriptions and land use designations, when read together, set out what type of
activities may occur in various sections of the National Forest. Thus, it meets the
elements of an APA "rule": it is of general applicability (it affects many parties,
private and governmental, concerning the National Forest) and future effect (10 to
15 years in duration), and it implements, interprets, and prescribes law and policy.
See Luian v. National Wildlife Federation, 497 U.S. 871, 892 (1990). (Land
withdrawal review program of the Bureau of Land Management can be regarded as
a rule of general applicability.)

As quoted above, 5 U.S.C. § 804(3) sets forth several exceptions to the definition of
rules subject to congressional review. The only one arguably applicable here is
section 804(3)(c): "any rule of agency organization, procedure, or practice that does
not substantially affect the rights or obligations of non-agency parties." This

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language is taken from an APA provision exempting some rules from requirements
for public notice and comment. The APA exception is itself much broader,
including "interpretative rules, general statements of policy, or rules of agency
organization, procedure, or practice."    5   U.S.C. § 553(b)(A).

The Supreme Court has never addressed the meaning of the APA exemption for
rules of "agency procedure." There are federal district court and court of appeals
decisions distinguishing between "substantive" and "procedural" rules, but these
cases have not resulted in a bright line distinction, largely because "procedure
impacts on outcomes and thus can virtually always be described as affecting
substance."6 JEM Broadcasting Co., Inc. v. FCC, 22 F.3d 320, 326 (D.C. Cir. 1994).
The resulting effort is characterized by Professors Davis and Pierce as "analytically
intractable," resulting in an "untidy," "murky" area of law. Kenneth Culp Davis &
Richard J. Pierce, Jr., 1 Administrative Law Treatise § 6.4 (3d ed. 1994).


5Inhis floor statement during final consideration of the Contract with America
Advancement Act of 1996, of which SBREFA was title III, Representative McIntosh,
a principal sponsor of the legislation, emphasized that rules subject to congressional
review are not the same as those subject to APA notice and comment requirements:

      "All too often, agencies have attempted to circumvent the notice and
      comment requirements of the Administrative Procedure Act by trying to
      give legal effect to general policy statements, guidelines, and agency policy
      and procedure manuals. Although agency interpretative rules, general
      statements of policy, guideline documents, and agency and procedure
      manuals may not be subject to the notice and comment provisions of
      section 553(c) of title 5, United States Code, these types of documents
      are covered under the congressional review provisions of the new
      chapter 8 of title 5."

      "Under section 801(a), covered rules, with very few exceptions, may not go
      into effect until the relevant agency submits a copy of the rule and an
      accompanying report to both Houses of Congress. Interpretive rules,
      general statements of policy, and analogous agency policy guidelines are
      covered without qualification because they meet the definition of a 'rule'
      borrowed from section 551 of Title 5, and are not excluded from the
      definition of rule." 142 Cong. Rec. H3005 (daily ed. March 28, 1996).

6We are not aware of litigation concerning whether LRMPs are exempt from APA
public notice and comment requirements (as, for example, agency statements of
policy or procedural rules). This undoubtedly results from the fact that the
National Forest Management Act and implementing regulations impose more
extensive public notice and comment requirements than those in the APA. See
16 U.S.C. § 1604(d); 5 U.S.C. § 553(b); and 36 C.F.R. § 219.6.

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In most cases, the key distinguishing feature the courts find in a "procedural" rule
"is that it covers agency actions that do not themselves alter the rights or interests
of parties, although it may alter the manner in which the parties present themselves
or their viewpoints to the agency." Id. (quoting from Batterton v. Marshall, 648 F.2d
694, 707 (D.C. Cir. 1980)). This feature was expressly included in 5 U.S.C. § 804(3),
which excludes procedural rules that do not "substantially affect the rights or
obligations of non-agency parties."7

In applying the APA exception, courts often consider the purpose and implication of
characterizing a rule as substantive or procedural--whether the substantive effects
of the rule are "sufficiently grave so that notice and comment are needed to
safeguard the policies underlying the APA." Lamoille Valley R.R.C. v. ICC, 711 F.2d
295, 328 (D.C. Cir. 1983). In this case, the analogous consideration would be
whether the impact of the rule on the rights and interests of non-agency parties is
sufficiently significant that the Congress should review the Forest Service's exercise
of delegated legislative authority to determine if the rule is "too burdensome,
excessive, inappropriate, or duplicative." 142 Cong. Rec. S3683 (daily ed. April 18,
1996) (statement of Sen. Nickles); 142 Cong. Rec. E575 (daily ed. April 19, 1996)
(remarks of Rep. Hyde).

In our view, the Plan has a substantial effect on non-agency parties. It allocates
areas of the Forest to Land Use Designations and describes the uses to which the
land may be put and the activities which may occur there. This "management
prescription" gives general direction on what may occur within an area allocated to
a particular LUD, the minimum standards for accomplishing each activity, and
guidelines on how to go about accomplishing the standards.



Representative McIntosh addressed this aspect of the statute during final
7

consideration of the Contract with America Advancement Act of 1996 as follows:

    "Pursuant to section [804(3)(C)], a rule of agency organization,
    procedure, or practice, is only excluded if it 'does not substantially
    affect the rights or obligations of nonagency parties.' The focus of
    the test is not on the type of rule but on its effect on the rights or
    obligations of nonagency parties. A statement of agency procedures
    or practice with a truly minor, incidental effect on nonagency parties
    is excluded from the definition of the rule. Any other effect, whether
    direct or indirect, on the rights and obligations of nonagency parties
    is a substantial effect within the meaning of the exception. Thus, the
    exception should be read narrowly and resolved in favor of nonagency
    parties who can demonstrate that the rule will have a nontrivial effect
    on their rights and obligations." 142 Cong. Rec. H3005 (daily ed.
    March 28, 1996).

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Some minimum standards and guidelines provide considerable discretion to forest
managers. For example, for the Karst and Caves Resource in areas of the
Wilderness LUD, managers are to: "Identify opportunities for interpretation of
caves for public education and enjoyment. Interpretation will generally occur
outside this Land Use Designation."8 Other standards and guidelines are more
specific. For example, for the Lands Resource in areas of the Wilderness LUD,
managers may permit new special use cabins only if, among other things, the permit
is nontransferable, limited to a 5-year term, and provides that no motorized
equipment may be used unless specifically approved by the Regional Forester.9

Among the more specific standards are those applicable to timber harvesting.
Timber may not be harvested within the 1,000 foot beach and estuary fringe or
buffer zone."0 In the Wildlife standards and guidelines, forest stand structural
characteristics are listed which must be maintained after harvesting. For example,
in the American Marten habitat (1) 10-20 percent of the original stand, (2) four large
trees (20-30 inches in diameter) per acre, (3) three large dead or dying trees (20-30
inches in diameter) per acre, and (4) an average of three large pieces of down
material per acre must remain."

The specific restrictions and prohibitions are binding unless the LRMP is amended
in accordance with the requirements of 16 U.S.C. § 1604(f)(4). Section 1604(f)(4)
provides that the LRMP may be amended after adoption following public notice. If
the amendment is a significant change, public involvement comparable to that
required by section 1604(d) is required. Section 1604(d) requires making the
revision available to the public in the vicinity of the affected area at least 3 months
before amendment and holding public meetings or comparable processes that foster
public participation. We note that the predecessor Tongass LRMP was only
amended through this process twice in over 15 years and both amendments resulted
from congressional action.'2

In concluding that decisions made in the Plan substantially effect non-agency parties
and are, therefore, not "agency procedures," we recognize that the regulatory
scheme includes a second stage of decisionmaking in managing the Forest. That



8   Tongass National Forest Land and Resource Management Plan, Forest Plan, at 3-11.

9   1d.

'°Id. at 4-4 and 4-5.

"Id. at 4-119.

12 The Alaska National Interests Lands Conservation Act and the Tongass Timber
Reform Act of 1990.

Page 8                                                                         B-275178
stage occurs when Forest Service officials implement the Plan with respect to a
particular area of the Forest."3  Clearly the Tongass LRMP as a whole has itself a
substantial effect on non-agency parties-it is not in that sense "procedural"-even
though LRMP restrictions will ultimately be embodied in site-specific decisions.
We note that to conclude otherwise would effectively frustrate the SBREFA
congressional review mechanism. The vast majority of site-specific actions concern
individual use of particular areas of the Forest. They would in many cases be rules
of "particular applicability" and thereby be excluded from congressional review.
5 U.S.C. § 804(3). If only site-specific actions were considered "rules," a regulatory
scheme in preparation for 10 years at a cost of over $13 million, with a substantial
impact during the next 15 years on all those who use the Forest, would be insulated
from congressional review.

For the foregoing reasons, it is our opinion that the Tongass LRMP constitutes a
"rule" under SBREFA; it is subject to review by the Congress in accordance with the
procedures set forth in 5 U.S.C. § 802.

We trust that this is responsive to your request. If you have any further
questions on the subject, please call me (512-5400), or Assistant General Counsel
James Vickers (512-8210) of my staff.




Robert P. Murphy
General Counsel




'3 Because decisions made in LRMPs are couched in language that makes mandatory
this second stage of site-specific action, justiciability issues have arisen in cases
challenging LRMPs under the judicial review provisions of the APA. These issues
concern whether the case is "ripe" for judicial review until site-specific action has
been taken, or whether, until site-specific action has been taken, the plaintiffs
injury is sufficient to confer "standing." E.g., Sierra Club v. Thomas, 105 F.3d 248
(6th Cir. 1997); Wilderness Society v. Alcock, 83 F.3d 386 (11th Cir. 1996); Sierra
Club v. Marita, 46 F.3d 606 (7th Cir. 1995); Idaho Conservation League v. Mumma,
956 F.2d 1508 (9th Cir. 1992). These cases do consider the impact of LRMPs on
plaintiffs before the court, but because they concern very different legal
considerations and examine the effect of only a particular aspect of an LRMP on a
particular party, we do not find them helpful in this inquiry.

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