[Congressional Record Volume 163, Number 192 (Monday, November 27, 2017)]
[Senate]
[Pages S7330-S7331]
From the Congressional Record Online through the Government Publishing Office [www.gpo.gov]




    GAO OPINION LETTER ON EASTERN INTERIOR RESOURCE MANAGEMENT PLAN

  Ms. MURKOWSKI. Mr. President, I ask unanimous consent to have printed 
in the Record a letter from the U.S. Government Accountability Office, 
GAO, dated November 15, 2017.
  The letter provides notice that the Eastern Interior Resource 
Management Plan--Eastern Interior Plan--as well as the four resource 
management plans--RMP--that comprise the Eastern Interior Plan, signed 
by the Department of the Interior's Bureau of Land Management, and 
approved in Records of Decision, December 30, 2016, is a rule subject 
to the Congressional Review Act, CRA, 5 U.S.C. Sec. 801 et seq.
  I wrote to GAO on April 13, 2017, asking it to determine whether the 
Eastern Interior Plan, along with the RMPs for the Draanjik Planning 
Area, the Fortymile Planning Area, the Steese Planning Area, and the 
White Mountains Planning Area, constitute rules subject to the CRA. In 
response, as communicated in its letter of November 15, 2017, GAO 
determined that the Eastern Interior Plan is a rule and does not fall 
within any of the exceptions provided in the CRA. GAO reached the same 
conclusion with regard to each of the four RMPs that comprise the 
Eastern Interior Plan. Accordingly, with this GAO opinion and its 
publication in the Congressional Record, the Eastern Interior Plan 
rule, and the rules for each RMP will be subject to acongressional 
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, GAO's determination of the Eastern 
Interior Plan and the four RMPs can be accessed at https://www.gao.gov/
assets/690/688420.pdf.
  There being no objection, the material was ordered to be printed in 
the Record, as follows:

                                                   U.S. Government


                                        Accountability Office,

                                Washington, DC, November 15, 2017.
     Subject: Eastern Interior Resource Management Plan.

     Hon. Lisa Murkowski,
     U.S. Senate.
       This is a response to your letter requesting our opinion 
     whether the Eastern Interior Resource Management Plan 
     (Eastern Interior Plan), issued on December 30, 2016 by the 
     Bureau of Land Management (BLM) of the Department of the 
     Interior, is a rule under the Congressional Review Act (CRA). 
     The Eastern Interior Plan is comprised of the Resource 
     Management Plans (RMP) for four areas in Alaska: the Draanjik 
     Planning Area, the Fortymile Planning Area, the Steese 
     Planning Area, and the White Mountains Planning Area. You 
     also asked us to decide whether these four underlying RMPs 
     are rules for CRA purposes. For the reasons discussed below, 
     we conclude that the Eastern Interior Plan and the four RMP's 
     are rules under CRA.


                               BACKGROUND

                  The Resource Management Plan Process

       The Eastern Interior Plan was prepared in accordance with 
     the Federal Land Policy and Management Act of 1976 (FLPMA). 
     The FLPMA, as amended, requires the Bureau of Land Management 
     (BLM) to ``develop, maintain, and, when appropriate, revise 
     land use plans which provide by tracts or areas for the use 
     of the public lands'' Plans are to ``use and observe the 
     principles of multiple use and sustained yield[.]'' FLPMA 
     defines ``multiple use'' to encompass uses such as 
     ``recreation, range, timber, minerals, watershed, wildlife 
     and fish, and natural scenic, scientific and historical 
     values[.]'' Multiple use management requires balancing 
     various competing uses of land.
       All future resource management authorizations and actions, 
     and subsequent more detailed or specific planning, must 
     conform to the approved resource management plan. BLM may 
     amend or revise plans to account for, among other things, new 
     information or changes in circumstances. FLPMA requires BLM 
     to promulgate and follow certain procedures set forth in 
     regulation for the development, amendment, and revision of 
     forest plans. The decision to adopt a land use plan and the 
     rationale for making that decision are made public in a 
     Record of Decision issued pursuant to the National 
     Environmental Policy Act (NEPA).
       Below is a brief description of some of the land use and 
     other decisions discussed in each of the four Resource 
     Management Plans (RMP) contained in the Eastern Interior 
     Plan:

                     White Mountains Planning Area

       The White Mountains National Recreation Area comprises over 
     1 million acres, and had an earlier RMP established in 1986. 
     After analyzing five different alternatives, BLM chose a plan 
     that recommends opening 4,000 acres to new locatable mineral 
     entry and mineral leasing by revocation of public land 
     orders, and identifies lands that are suitable for 
     acquisition, disposal, or retention. The entire area is 
     limited to off-highway vehicles, with snowmobiles permitted 
     in winter months. The plan defers travel management planning 
     to a future rulemaking process to be completed within 5 
     years.

                          Steese Planning Area

       This planning area comprises about 1.3 million acres, and 
     its RMP replaces an earlier plan approved in 1986. The BLM 
     again considered five alternative plans, and the selected 
     option would designate that 98 percent of the planning area 
     remain closed to mineral leasing and mineral location. A 
     limited off-highway vehicles area designation would be in 
     place for the entire planning area, and a more detailed 
     transportation management plan would be developed within the 
     next 5 years. The Steese Special Recreation Management Area 
     is designated under the Plan, and two Research Natural Areas 
     remain in place.

                        Fortymile Planning Area

       The Fortymile Planning Area comprises nearly 1.9 million 
     acres of land, and the RMP replaces an earlier planning 
     effort approved in 1980. The area includes a Wild and Scenic 
     River designated by statute. Five alternative plans were 
     considered by BLM, and the plan chosen would recommend that 
     40 percent of the area remain closed to mineral leasing 
     and mineral location, and recommends a new Area of 
     Critical Environmental Concern. A limited off-highway 
     vehicles designation would apply to the entire planning 
     area.

                         Draanjik Planning Area

       This planning area, formerly known as the Upper Black River 
     Area, comprises about 2.4 million acres. There was no prior 
     planning document for this region. After studying five 
     alternative plans, BLM decided, among other things, to 
     designate the Salmon Fork River as an Area of Critical 
     Environmental Concern to protect anadromous fish habitat, 
     bald eagle nesting, and rare plant habitats. The RMP also 
     recommended that 77 percent of the land be closed to mineral 
     leasing and mineral location (previously no mineral leasing 
     or mining claims were allowed). Certain lands near the town 
     of Circle, Alaska, would be available for disposal through 
     exchange and would have limited access to off-highway 
     vehicles; no off-highway vehicles access was designated prior 
     to this planning process.

                        Congressional Review Act

       The CRA, codified at 5 U.S.C. 801-808 (2012), establishes a 
     process for congressional review of agency rules and special 
     expedited procedures whereby the Congress may pass a joint 
     resolution of disapproval to overturn a rule. Congressional 
     review is assisted by the Act's requirement that all federal 
     agencies submit each 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. The agencies 
     (Interior and BLM) did not send a report on the Eastern 
     Interior Plan to Congress or the Comptroller General.


                                ANALYSIS

       On October 23, 2017, we issued an opinion on whether the 
     2016 Amendment to the Tongass National Forest Land and 
     Resource Management Plan (2016 Tongass Amendment), approved 
     on December 9, 2016, is a rule under CRA. In our Tongass 
     opinion, we analyzed the 2016 Tongass Amendment in light of 
     CRA's definition of a rule, found that it 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 Eastern Interior Plan and each of the four 
     RMPs it contains.
       The first step in analyzing whether the Eastern Interior 
     Plan is a rule is to look at

[[Page S7331]]

     how CRA defines a rule. CRA adopts the definition of a rule 
     in section 551 of the Administrative Procedure Act (APA), 
     with three exceptions. The APA defines a rule, in relevant 
     part, as ``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.'' Thus a rule has three key 
     components: it 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, since the Eastern Interior Plan was issued by BLM, a 
     federal agency, the first part of the definition is met. 
     Second, the Eastern Interior Plan clearly states that it 
     ``provide[s] overall direction for management of all 
     resources on BLM-managed lands'' within the four planning 
     areas it includes. In three of those areas, it replaces 
     plans implemented 30 or more years ago; and in the fourth 
     area it establishes an initial Management Plan for an area 
     that previously had no approved plan. All four RMPs make 
     recommendations and designate future uses of their 
     respective areas. Therefore, the Plan has future effect 
     and the second part of the definition is also met.
       Third, the agency statement must be designed to implement, 
     interpret, or prescribe law or policy. Each of the four RMPs 
     prescribes policies for future use of the areas they cover, 
     such as where mining or off-highway vehicles are permitted; 
     and two of the RMPs identify Areas of Critical Environmental 
     Concern. Each of the RMPs implements the provisions of FLPMA 
     and other applicable statutory and regulatory provisions. 
     Implementation required extensive consultation with parties 
     that have interests in that region through notice and public 
     comment; public hearings; and then an opportunity for the 
     Governor of Alaska to provide final comments. Therefore, the 
     third part of the definition is also met.
       As noted above, CRA provides that three types of rules are 
     not subject to its requirements. The three exceptions are 
     for: (1) rules of particular applicability; (2) rules 
     relating to agency management or personnel; and (3) rules of 
     agency organization, procedure, or practice that do not 
     substantially affect the rights or obligations of non-agency 
     parties. We conclude that these exceptions do not apply.
       First, as we determined in our recent Tongass decision, a 
     resource management plan is a rule of general applicability, 
     since it governs all natural resource management activities, 
     all projects approved to take place, and all persons or 
     entities that engage in uses permitted by those projects. 
     Second, the Eastern Regional Plan does not relate to agency 
     management or personnel, since it is concerned with 
     management of uses of the areas it governs by the public 
     rather than management of BLM itself or its personnel. 
     Additionally, as we also concluded in the Tongass decision, 
     when a resource management plan has a substantial effect on 
     non-agency parties, it cannot be considered to be a rule of 
     agency organization, procedure or practice. Because the 
     Eastern Interior Plan designates uses by non-agency parties 
     that may take place in the four areas it governs, it is not a 
     rule of agency organization, procedure or practice.


                               CONCLUSION

       The Eastern Interior Resource Management Plan and the four 
     RMPs it contains are rules subject to the requirements of the 
     CRA.
       If you have any questions about this opinion, please 
     contact Robert J. Cramer, Associate General Counsel, at (202) 
     512-7227.
           Sincerely yours,
                                                  Susan A. Poling,
     General Counsel.

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