[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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