Congressional Review Act: Application to the Tongass National Forest Land and Resource Management Plan

Published by the Government Accountability Office on 1997-07-09.

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

                          United States General Accounting Office

GAO                       Testimony
                          Before the Committee on Energy and Natural Resources,
                          U.S. Senate, and Committee on Resources, House of

For Release on Delivery
Expected at
11:00 a.m., EDT
                          CONGRESSIONAL REVIEW
July 9, 1997              ACT

                          Application to the Tongass
                          National Forest Land and
                          Resource Management Plan
                          Statement of Robert P. Murphy, General Counsel

Chairman Murkowski, Chairman Young, and Members of the Committees:

I am pleased to appear before you today to discuss the General
Accounting Office’s views on whether the Tongass National Forest Land
and Resource Management Plan, issued by the United States Forest
Service on May 23, 1997, is a “rule” under the provisions of the Small
Business Regulatory Enforcement Fairness Act (SBREFA). Attached to
this statement is a detailed legal opinion we recently issued on the

SBREFA was enacted on March 29, 1996, establishing a government-wide
congressional review mechanism of new rules, including the availability of
expedited procedures to enact joint resolutions of disapproval to overrule
federal rulemaking actions. As the joint statement on the new law by
Senators Stevens, Nickles, and Reid explained, the purpose of the
legislation was to restore balance between the enactment of laws by
Congress and their implementation by the Executive branch. The
Congress sought to reclaim some of the policymaking authority that had
been assumed by regulatory agencies with increased delegation of
legislative functions from the Congress to these agencies.

Congressional oversight of rulemaking as contemplated by SBREFA can
be an important and useful tool for balancing and accommodating the
concerns of American citizens and businesses with federal agency
rulemaking. It is important to assure that Executive branch agencies are
responsive to citizens and businesses about the reach, cost, and impact of
regulations without compromising the statutory mission given to those
agencies. SBREFA seeks to accomplish this by giving the Congress an
opportunity to review rules before they take effect and to disapprove
those found to be too burdensome, excessive, inappropriate, duplicative,
or otherwise objectionable. As of July 3, 1997 (about 15 months following
enactment), 79 major rules and 4,833 non-major rules have been submitted
under SBREFA.

On June 18, 1997, the Chief of the Forest Service forwarded copies of the
Tongass Plan to both Houses of Congress and our Office following the
procedures outlined in SBREFA, while stating at the same time that land
and resource management plans are not subject to the statute. An
attachment to the transmittal letter states that the Plan is not a major rule.1

 A “major rule” is one found by the Office of Information and Regulatory Affairs, Office of Management
and Budget (OMB), 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).

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We conclude that the Tongass Plan constitutes a “rule” under SBREFA.
Therefore, submittal of a report 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, it is not effective until 60 days after the submission of
the report to the Congress or publication in the Federal Register,
whichever is later. This would result in an effective date of August 17,
1997, 60 days after submission to the Congress.

SBREFA 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, and the
Unfunded Mandates Reform Act of 1995, and any other relevant
information or requirements under any other legislation or any relevant
executive orders.

Once a rule, whether determined to be a major rule or not, is submitted,
special procedures are available for a period of 60 session days in the
Senate or 60 legislative days in the House for Congress to pass a joint
resolution of disapproval. These time periods can be extended upon a
congressional adjournment. SBREFA provides that 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.

There are two questions concerning whether SBREFA procedures are
applicable to the Tongass Plan. The first is whether the Tongass Plan is a
“rule” under SBREFA, that is, an “agency statement of general . . .
applicability and future effect designed to implement, interpret, or
prescribe law or policy.” The second is whether any of the statutory
exceptions in SBREFA are applicable. If the Tongass Plan is a rule, which
we conclude it is, there is a third question—is it a “major” rule, which
cannot be effective for 60 days after presentation to the Congress and GAO.
This determination is reserved to OMB’s Office of Information and
Regulatory Affairs.

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A summary description of the Plan shows clearly that it meets the
definition of a “rule.” The Plan implements the requirement of the National
Forest Management Act that the Secretary of Agriculture develop,
maintain, and revise land resource management plans and assure
compliance with the Multiple-Use Sustained-Yield Act of 1960 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 a “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.

SBREFA sets forth several exceptions to the definition of rules subject to
congressional review. The only one arguably applicable here is “any rule of
agency organization, procedure, or practice that does not substantially
affect the rights or obligations of non-agency parties.”

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 Designation, the
minimum standards for accomplishing each activity, and guidelines on
how to go about accomplishing the standards.

Some minimum standards and guidelines provide considerable discretion
to forest managers. For example, for the Karst and Caves Resource in
areas of the Wilderness Designation, managers are to: “Identify
opportunities for interpretation of caves for public education and
enjoyment. Interpretation will generally occur outside this Land Use
Designation.” Other standards and guidelines are more specific. For
example, for the Lands Resource in areas of the Wilderness Designation,
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.

Among the more specific standards are those applicable to timber
harvesting. Timber may not be harvested within the 1,000 foot beach and

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estuary fringe or buffer zone. 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 a land
resource plan is amended in accordance with the requirements of the
National Forest Management Plan Act, which provides that a plan may be
amended after adoption following public notice. If the amendment is a
significant change, the revision must be made available to the public in the
vicinity of the affected area at least 3 months before amendment and the
agency must hold public meetings or comparable processes that foster
public participation. We note that the predecessor Tongass Plan was only
amended through this process twice in over 15 years and both
amendments resulted from congressional action.

In concluding that decisions made in the Plan substantially effect
non-agency parties and are, therefore, not “agency procedures,” we also
recognize that the regulatory scheme includes a second stage of
decisionmaking in managing the Forest. That stage occurs when Forest
Service officials implement the Plan with respect to a particular area of the
Forest. Clearly the Tongass Plan as a whole has itself a substantial effect
on non-agency parties—it is not in that sense “procedural”—even though
Plan 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. If only site-specific actions were considered
“rules,” a regulatory scheme in preparation for 10 years at a cost of over
$13 million, with 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 Plan
constitutes a “rule” under SBREFA; it is subject to review by the Congress
in accordance with the procedures set forth therein.

Thank you Mr. Chairmen. This concludes my prepared remarks. I would
be happy to answer any questions you may have.

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