[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.

                          ____________________