United States General Accounting Office GAO Testimony Before the Committee on Energy and Natural Resources, U.S. Senate, and Committee on Resources, House of Representatives For Release on Delivery Expected at 11:00 a.m., EDT CONGRESSIONAL REVIEW Wednesday, July 9, 1997 ACT Application to the Tongass National Forest Land and Resource Management Plan Statement of Robert P. Murphy, General Counsel GAO/T-OGC-97-54 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 question. 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 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). Page 1 GAO/T-OGC-97-54 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. Page 2 GAO/T-OGC-97-54 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 Page 3 GAO/T-OGC-97-54 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. Page 4 GAO/T-OGC-97-54 Page 5 GAO/T-OGC-97-54 Attachment Page 6 GAO/T-OGC-97-54 Attachment Page 7 GAO/T-OGC-97-54 Attachment Page 8 GAO/T-OGC-97-54 Attachment Page 9 GAO/T-OGC-97-54 Attachment Page 10 GAO/T-OGC-97-54 Attachment Page 11 GAO/T-OGC-97-54 Attachment Page 12 GAO/T-OGC-97-54 Attachment Page 13 GAO/T-OGC-97-54 Attachment (996216) Page 14 GAO/T-OGC-97-54 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. VISA and MasterCard credit cards are accepted, also. 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. 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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)