[Congressional Record Volume 163, Number 171 (Tuesday, October 24, 2017)]
[Senate]
[Pages S6760-S6763]
From the Congressional Record Online through the Government Publishing Office [www.gpo.gov]
GAO OPINION LETTER ON 2016 TONGASS PLAN AMENDMENT
Ms. MURKOWSKI. Mr. President, I ask unanimous consent that a letter
from the U.S. Government Accountability Office, GAO, dated October 23,
2017, be printed in the Record.
The letter provides notification that the 2016 Amendment to the
Tongass Land and Resource Management Plan, USDA, Forest Service,
Tongass Land and Resource Management Plan, Record of Decision, R10-MB-
769I, Washington, D.C.: December 9, 2016, is a rule subject to the
Congressional Review Act, 5 U.S.C. Sec. 801 et seq.
I wrote to GAO on February 13, 2017, asking it to determine whether
the 2016 Tongass plan amendment constitutes a rule subject to the CRA.
In response, as communicated in its letter of October 23, GAO
determined that the plan amendment is a rule and does not fall within
any of the exceptions provided in the CRA. Accordingly, with this GAO
opinion and its publication in the Congressional Record, the rule will
be subject to a congressional joint resolution of disapproval.
The letter I am now submitting to be printed in the Congressional
Record is the original document provided by GAO to my office. I will
also provide a copy of the GAO letter to the Parliamentarian's office.
For those who may be interested, the 2016 Tongass Plan Amendment can
be found online at https://www.fs.usda.gov/detail/tongass/
landmanagement/?cid=stelprd3801708. GAO's determination can be accessed
at http://www.gao.gov/products/B-238859.
[[Page S6761]]
I look forward to debating the future of this rule in the weeks and
months to come.
There being no objection, the material was ordered to be printed in
the Record, as follows:
U.S. Government
Accountability Office,
Washington, DC, October 23, 2017.
Subject: Tongass National Forest Land and Resource Management
Plan Amendment.
Hon. Lisa Murkowski,
U.S. Senate.
This is in response to your letter requesting our opinion
on whether the 2016 Amendment to the Tongass Land and
Resource Management Plan (2016 Tongass Amendment or
Amendment), approved by the Tongass Forest Supervisor on
December 9, 2016, is a rule under the Congressional Review
Act (CRA). For the reasons discussed in more detail below, we
conclude that the 2016 Tongass Amendment is a rule under CRA.
BACKGROUND
Tongass National Forest
The Tongass National Forest is the largest of the 154
national forests It comprises 78 percent of the land base in
southeast Alaska. Of its approximate 16.7 million acres,
about 10 million acres are forested Of the forested acres,
the Forest Service classifies approximately 5.5 million acres
as being ``productive forest.'' As a national forest, the
Tongass is managed by the Forest Service within the
Department of Agriculture (USDA).
Since inception, the Tongass timber program has been based
on harvesting old-growth trees--in the context of the
Tongass, generally meaning trees more than 150 years old--
that can be a source of high-quality lumber. The Forest
Service began offering timber sales on the Tongass in the
early 1900s. Although timber harvest increased substantially
in the 1950s through 1970s, harvest has since declined
significantly.
A number of laws and regulations have reduced the number of
acres where timber harvest is allowed on national forests,
both nationwide and on the Tongass. Specifically, according
to statistics provided by Forest Service officials, of the
approximately 5.5 million acres of productive forest in the
Tongass, approximately 2 4 million acres are not available
for harvest because of statutory provisions, such as
wilderness designations, and another 1.8 million acres are
not available for harvest because of other factors, such as
USDA adopting the roadless rule.
National Forest Planning Process
The National Forest Management Act of 1976 (NFMA), as
amended, requires the Forest Service to ``develop, maintain,
and, as appropriate, revise land and resource management
plans for units of the National Forest systems.'' Plans are
to provide for ``the multiple use and sustained yield of the
products and services obtained from [the national forests] .
. . and, in particular, include coordination of outdoor
recreation, range, timber, watershed, wildlife and fish, and
wilderness.'' Thus, the Forest Service must ``balance
competing demands on national forests, including timber
harvesting, recreational use, and environmental
preservation.''
Forest plans identify the uses that may occur in each area
of the forest. The Forest Service is required to update
forest plans at least every 15 years and may amend a plan
more frequently to adapt to new information or changing
conditions. Resource plans and permits, contracts, and other
instruments for the use of national forests must be
consistent with the applicable plans. When a plan is revised,
these instruments are to be revised as soon as practicable to
be made consistent with the revised plan, but only subject to
valid existing legal rights. The Forest Service is required
to promulgate and follow certain procedures set forth in
regulation for the development, amendment, and revision of
forest plans. The decision to adopt a forest plan and the
rationale for making that decision are made public in a
Record of Decision (ROD) issued pursuant to the National
Environmental Policy Act (NEPA). For timber harvest
activities, forest plans typically identify areas where
timber harvest is permitted to occur and set a limit on the
amount of timber that may be harvested from the forest.
The Tongass forest plan allocates defined areas of the
forest to various Land Use Designations (LUDs). In general,
the plan allocates all areas of the forest to LUDs as part of
the forest planning process. Some LUDs implement statutory
land designations, such as wilderness, and areas allocated to
those LUDs must be managed in accordance with the statutory
requirements applicable to those land designations. Other LUD
allocations are for development of resources, such as timber
production, and the Forest Service manages these areas in
accordance with LUD direction, such as by allowing roads to
be built and commercial timber to be harvested.
The descriptions of the uses allowed by the plan within a
LUD and the corresponding permissible activities are
management prescriptions. Each management prescription gives
general direction on what may occur within areas allocated to
the corresponding LUD, the standards for accomplishing each
activity, and the guidelines on how to go about accomplishing
the standards. While a forest plan may allocate certain areas
to a timber LUD, that allocation does not itself authorize
third parties to harvest timber. If the applicable management
prescription allows timber harvesting within a given LUD,
additional steps are required before the contractual right to
harvest timber is created. The Forest Service will identify a
sale area, conduct the required environmental analyses,
appraise the timber, and solicit bids from buyers interested
in purchasing the timber. The Forest Service then prepares
the timber sale contract and marks the sale boundary and the
trees to be cut or left. The purchaser is responsible for
cutting and removing the timber, with the Forest Service
monitoring the harvest operations. These sales or projects
are to be conducted consistent with the applicable forest
plan, but plans generally do not require any specific sale or
project to be undertaken.
Tongass National Forest Planning
In 1979, the Tongass National Forest was the first to
complete a forest plan under NFMA. The plan was amended in
1986 and 1991. In 1997 USDA approved a Revised Forest Plan,
which was then amended in 2008.
In 2010, USDA announced its intent to transition the
Tongass timber program to one based predominantly on the
harvest of young growth--generally consisting of trees that
have regrown after the harvest of old growth--in part to help
conserve the remaining old-growth forest. A 2013 memorandum
from the Secretary of Agriculture stated that within 10 to 15
years, the ``vast majority'' of timber harvested in the
Tongass would be young growth. The memorandum also stated
that the transition must be done in a manner that ``preserves
a viable timber industry'' in southeast Alaska. The Forest
Service announced in May 2014 that it would amend the forest
plan for the Tongass to accomplish the transition. As part
of the decision-making process for the amendment, in
November 2015 the Forest Service released for public
comment its proposed forest plan amendment and
accompanying environmental analyses.
The substantive changes in the 2016 Tongass Amendment are
set out in Chapter 5 of the Amendment. As compared to the
2008 plan, the 2016 Tongass Amendment generally reduced the
areas potentially open to old-growth harvest while allowing
young growth harvest in some areas previously unavailable for
any type of harvest. Specifically, the 2016 Tongass Amendment
makes the following changes to the 2008 Tongass Land Resource
Management Plan (LRMP):
Allows old-growth harvest only within the portion of the
Tongass National Forest included in the first phase of a
timber sale program adaptive management strategy set forth in
a 2008 Tongass LRMP Amendment Record of Decision;
Allows young-growth harvest in all phases of the 2008
timber sale program adaptive management strategy, but only
outside of roadless areas identified in the 2001 Roadless
Rule;
Allows young-growth management in development LUDs and in
the Old-Growth Habitat LUD, beach and estuary fringe, and
riparian management areas outside of stream buffers, subject
to certain conditions and for a specified period of time;
Establishes direction to protect priority watersheds;
Modifies the network of old-growth reserves to maintain
their effectiveness; and
Includes new management direction to facilitate renewable
energy production.
USDA describes the other changes resulting from the 2016
Tongass Amendment as simply clarifications, corrections of
typographical errors, and updates of references to law,
regulation, and other mandatory policy direction to reflect
the current version of the provisions that have changed since
2008.
Congressional Review Act
CRA, enacted in 1996 to strengthen congressional oversight
of agency rulemaking, requires all federal agencies,
including independent regulatory agencies, to submit a report
on each new rule to both Houses of Congress and to the
Comptroller General before it can take effect. The report
must contain a copy of the rule, ``a concise general
statement relating to the rule,'' and the rule's proposed
effective date. In addition, the agency must submit to the
Comptroller General a complete copy of the cost-benefit
analysis of the rule, if any, and information concerning the
agency's actions relevant to specific procedural rulemaking
requirements set forth in various statutes and executive
orders governing the regulatory process. CRA also established
special expedited procedures under which Congress may pass a
joint resolution of disapproval that, if enacted into law,
overturns the rule.
USDA has not sent a report on the 2016 Tongass Amendment.
In its response to us, USDA stated that ``it is the position
of the Department of Agriculture that the 2016 Tongass
Amendment is not subject to CRA. Accordingly, the amendment
will not be submitted pursuant to CRA.''
ANALYSIS
In 1997, we decided whether the Tongass National Forest
Land and Resource Management Plan issued May 23, 1997, was a
rule under CRA. In that decision, we reviewed CRA's
definition of a rule, found that the Plan fit within that
definition, and concluded that it was a rule for CRA
purposes. As explained below, we reach the same conclusion
with regard to the 2016 Tongass Amendment.
CRA incorporates by reference the definition of ``rule''
found in section 551 of the Administrative Procedure Act
(APA) which provides, in relevant part:
[[Page S6762]]
```rule' means the whole or a 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''
However, under CRA, the term ``rule'' does not include:
``(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.''
Consequently, the first step in analyzing whether the 2016
Tongass Amendment is a rule under CRA is to determine whether
it meets the definition in section 551 of APA.
The definition has three key components. A rule must (1) be
an agency statement, (2) have future effect, and (3) be
designed to either implement, interpret, or prescribe law or
policy or describe the agency's organization, procedure, or
practice requirements. First, in order to be a rule, the
statement must be made by an agency. USDA, the issuer of the
2016 Tongass Amendment, is an agency. The 2016 Tongass
Amendment therefore meets the first component of the
definition.
Second, the agency statement must have future effect. The
2016 Tongass Amendment is a guide for future forest
management activities and establishes a prospective
management direction The text of the Amendment specifically
notes that all future plans and activities will be based on
this Forest Plan. We therefore conclude that the 2016 Tongass
Amendment also meets the second component of the definition.
Third, the statement must be designed to implement,
interpret, or prescribe law or policy or describe the
agency's organization, procedure, or practice requirements.
The purpose of the 2016 Tongass Amendment, like all forest
plans, is to implement the provisions of NFMA and other
applicable statutory and regulatory provisions. The Amendment
also implements USDA's policy to transition the Tongass
timber program to one based predominantly on the harvest of
young growth. It thus meets the third component of the
definition and falls within the definition of the term
``rule'' in section 551 of APA.
USDA argues that the Amendment is not a rule because it
does not provide final authorization for any activity and
does not substantially affect the rights or obligations of
non-agency parties. It points out that implementing the
Amendment necessarily requires additional actions by the
Forest Service, and that the Amendment itself neither creates
nor takes away any party's rights or obligations. However,
APA does not require that an agency statement provide final
authorization for any activity, or that it substantially
affect the rights or obligations of non-agency parties, to
qualify as a rule. Indeed, ``the impact of an agency
statement upon private parties is relevant only to whether it
is the sort of rule that is a rule of procedure . . . not to
whether it is a rule at all.'' The APA sets forth only the
three requirements described above, each of which is met in
this instance.
Our analysis now turns to whether the Amendment falls under
any of the CRA exceptions. In its response to us, USDA
presents alternative arguments that the 2016 Tongass
Amendment is a rule of particular applicability or,
alternatively, a rule of agency organization, procedure, or
practice that does not substantially affect the rights or
obligations of non-agency parties.
Rules of Particular Applicability
USDA argues that the 2016 Tongass Amendment is a rule of
particular applicability because it applies to a single
national forest and, thus, is not a rule for purposes of CRA
pursuant to the exception in section 804(3)(a). According to
the legislative history of CRA:
``Most rules or other agency actions that grant an
approval, license, registration, or similar authority to a
particular person or particular entities, or grant or
recognize an exemption or relieve a restriction for a
particular person or particular entities, or permit new or
improved applications of technology for a particular person
or particular entities, or allow the manufacture,
distribution, sale, or use of a substance or product are
exempted under subsection 804(3)(A) from the definition of a
rule.''
The legislative history also provides examples of rules of
particular applicability such as import and export licenses,
individual rate and tariff approvals, wetlands permits,
grazing permits, plant licenses or permits, drug and medical
device approvals, new source review permits, hunting and
fishing take limits, incidental take permits, broadcast
licenses, and product approvals. The legislative history of
CRA also offers IRS private letter rulings as an example of a
rule of particular applicability. In addition to being
addressed to a specific person or entity, private letter
rulings differ from other IRS guidance and Treasury rules
in that the agency is not bound to follow them in its
dealings with others even on facts that are analogous.
Other IRS guidance and Treasury regulations have legal
force in all instances and are binding on the agency in
all cases; private letter rules have legal force only with
regard to a particular person or entity.
The 2016 Tongass Amendment is not an approval, license, or
registration to a particular person or entity. Nor does it
grant or recognize an exemption or relieve a restriction for
a particular person or entity. While the plan does only apply
to the Tongass National Forest and not to other national
forests, it applies to ``all natural resource management
activities;'' to all projects approved to take place in the
forest; and to all persons or entities that engage in uses
permitted by those projects. For instance, every person or
entity bidding on or engaged in permitted timber harvesting
will be doing so in accordance with the plan. The Amendment
applies to all persons or entities using the forest--not just
a particular person or entity. It is binding on agency action
in all cases, not with respect to one person or entity.
While there is no case law on the question of general
versus particular applicability for purposes of CRA, there is
analogous case law interpreting these terms under APA in
which courts have held rate setting ``addressed to and served
upon named persons in accordance with law'' to be a type of
rule of particular applicability. However, the 2016 Tongass
Amendment does not solely set rates and it does not apply to
a single entity. It states: ``All future plans and activities
will be based on this Forest Plan.'' Additionally, in our
prior decision on the Tongass National Forest Land and
Resource Management Plan issued in 1997, we concluded that
the Plan was of general applicability since it affected many
parties. We therefore conclude that this rule does not fall
within the exception for rules of particular applicability.
Rules of Organization, Practice, or Procedure That Do Not Substantially
Affect the Rights or Obligations of Non-Agency Parties
USDA maintains that the 2016 Tongass Amendment is exempt
from the requirements of CRA as a rule of agency
organization, procedure, or practice that does not
substantially affect the rights or obligations of non-agency
parties. The Amendment governs where old-growth and young-
growth timber harvests are allowed in Tongass. USDA states
that the Amendment is narrowly focused on accelerating the
transition from a primarily old-growth timber program to a
primarily young-growth program and, in doing so, ``provides
limited modifications to the Tongass LRMP to guide the
Tongass National Forest's procedures and practices going
forward.'' These changes, it asserts, involve agency
procedure and practice relating to the Forest Service's
management of the Tongass National Forest.
The CRA legislative history discussion of this exception is
limited, but states that it was modeled on APA, which
excludes ``rules of agency organization, procedure, or
practice'' from the requirement that a notice of proposed
rulemaking be published in the Federal Register. Courts have
applied the APA exception by distinguishing between
procedural and substantive rules. A rule is substantive when
it ``encodes a substantive value judgment or puts a stamp of
approval or disapproval on a given type of behavior.'' In
these cases, courts have focused on whether the agency action
has substantive impacts on the regulated community.
For example, the Fifth Circuit in Phillips Petroleum Co. v.
Johnson, held that the proper test of whether a rule is
procedural or substantive is whether a ``regulation of
general applicability has a substantial impact on the
regulated industry, or an important class of the members or
the products of that industry.'' Phillips Petroleum concerned
oil and gas royalties owed under leases for federal lands
administered by the Minerals Management Service (MMS). The
court held that an agency Procedure Paper changing the
criteria for valuing natural gas liquid products, used to
calculate royalties, was a substantive rule subject to APA
notice-and-comment rulemaking requirements. The agency argued
that the Procedure Paper was a rule of agency organization,
procedure, or practice. However, the court rejected this
argument, stating: ``Although the Procedure Paper would
appear to fall squarely within this exemption, for the change
effected by the Procedure Paper plainly relates to the
internal practices of MMA procedure, the mere fact that it
may guide MMS procedures does not mean that the Procedure
Paper is a 'procedural' rule for purpose of APA.''
The 2016 Tongass Amendment implements an agency policy to
transition from old-growth to new-growth timber harvesting.
In doing so, it encodes the agency's substantive value
judgement in favor of this transition and has a substantial
impact on the local timber industry. Even accepting USDA's
characterization of the Amendment as involving agency
procedure and practice relating to the Forest Service, under
the reasoning of Phillips Petroleum, the Amendment is not a
procedural rule since it has a substantial effect on the
regulated industry. Therefore, we conclude that it is not a
rule of agency procedure. This is consistent with our prior
decision on the Tongass National Forest Land and Resource
Management Plan issued in 1997, in which we concluded that
the Plan was not a rule of agency procedure due to its
substantial effects on non-agency parties.
Relying primarily on the Supreme Court's decision in Ohio
Forestry Ass'n v. Sierra Club,
[[Page S6763]]
USDA specifically argues that the procedural rule exception
applies because the 2016 Tongass Amendment does not
substantially affect the rights or obligations of non-agency
parties. At issue in Ohio Forestry Ass'n was a Sierra Club
challenge to a Land Resource Management Plan for Ohio's Wayne
National Forest on the ground that the plan permitted too
much logging and clearcutting. The question decided was
whether the rights asserted by the Sierra Club in challenging
the plan were ripe for judicial review. The Court explained
that the purpose of the ripeness doctrine is:
``to prevent the courts, through avoidance of premature
adjudication, from entangling themselves in abstract
disagreements over administrative policies, and also to
protect the agencies from judicial interference until an
administrative decision has been formalized and its effects
felt in a concrete way by the challenging parties.''
The court held that the rights asserted by the Sierra Club
were not yet ripe for review, and that there would be later
stages in the forest management process when plaintiffs could
assert those rights to challenge the Forest Service's
decisions.
The issue we decide here, however, is not whether rights
asserted by a party to challenge the Amendment are ripe for
judicial review. The question here is whether the 2016
Tongass Amendment has a substantial impact on the regulated
community such that it is a substantive rather than a
procedural rule for purposes of CRA. We have concluded that
it has such an impact and thus is a substantive rule. The
Supreme Court's decision is inapposite for CRA purposes,
since it is Congress' exercise of the review procedures in
CRA that is in issue, not the ripeness of a party's right to
bring suit challenging administrative action.
CONCLUSION
The 2016 Tongass Amendment is a rule for CRA purposes as it
meets the definition of the term ``rule'' under APA, and none
of the CRA exceptions apply.
If you have any questions about this opinion, please
contact Robert Cramer, Associate General Counsel, at (202)
512-7227.
Sincerely yours,
Susan A. Poling,
General Counsel.
____________________