[Congressional Record Volume 171, Number 119 (Thursday, July 10, 2025)]
[Senate]
[Pages S4311-S4313]
From the Congressional Record Online through the Government Publishing Office [www.gpo.gov]
U.S. GOVERNMENT ACCOUNTABILITY OFFICE LEGAL OPINION
Mr. BOOKER. Mr. President, I ask unanimous consent to have printed in
the Record the GAO Congressional Review Act legal opinion dated May 28,
2025.
There being no objection, the material was ordered to be printed in
the Record, as follows:
Decision
Matter of: U.S. Department of the Interior, U.S. Fish and
Wildlife Service--Applicability of the Congressional
Review Act to Record of Decision for Barred Owl
Management Strategy.
File: B-337059.
Date: May 28, 2025.
digest
In August 2024, the U.S. Department of the Interior, U,S.
Fish and Wildlife Service (FWS) issued a record of decision
titled, Record of Decision for Final Barred Owl Management
Strategy Implementation and Issuance of a Migratory Bird
Treaty Act Special Purpose Permit in Washington, Oregon, and
California (Barred Owl ROD or ROD). The ROD announced FWS's
decision to adopt a barred owl management strategy to improve
the survival and recovery of northern spotted owls and to
prevent declines in California spotted owls, both of which
compete with barred owls. The Barred Owl Management Strategy
adopted by the ROD provides a framework for federal, state,
or tribal government agencies, or private landowners, to
implement barred owl management through the lethal removal of
barred owls.
The Congressional Review Act (CRA) requires that before a
rule can take effect, an agency must submit the rule to both
the House of Representatives and the Senate, as well as the
Comptroller General. CRA incorporates the Administrative
Procedure Act's (APA) definition of a rule for this purpose,
with three exceptions. We conclude that the Barred Owl ROD is
a rule for purposes of CRA because it meets the APA
definition of a rule, and no CRA exception applies.
Therefore, the ROD is subject to CRA's submission
requirements.
decision
In August 2024, the U.S. Department of the Interior
(Interior), U.S. Fish and Wildlife Service (FWS) announced
its decision to adopt a barred owl management strategy.
Record of Decision for Final Barred Owl Management Strategy
Implementation and Issuance of a Migratory Bird Treaty Act
Special Purpose Permit in Washington, Oregon, and California
(Aug. 2024) (Barred Owl ROD or ROD). We received a request
for a decision as to whether the Barred Owl ROD is a rule for
purposes of the Congressional Review Act (CRA). As discussed
below, we conclude that the ROD is a rule subject to CRA's
submission requirements.
Our practice when rendering decisions is to contact the
relevant agencies to obtain factual information and their
legal views on the subject of the request. Accordingly, we
reached out to Interior on February 4, 2025, and received
Interior's response on March 18, 2025.
background
Barred Owl ROD
The Barred Owl ROD documents FWS's decision to adopt the
Final Barred Owl Management Strategy (Barred Owl Management
Strategy or Strategy) and issue an associated permit under
the Migratory Bird Treaty Act (MBTA) to implement the
Strategy. The ROD states that the purpose of the action ``is
to reduce barred owl populations to improve the survival and
recovery of northern spotted owls'' (a threatened species
under the Endangered Species Act) ``and to prevent declines
in California spotted owls'' (proposed for listing under the
Endangered Species Act). The ROD explains that barred owls, a
non-native invasive species in western North America, compete
with northern and California spotted owls, and this
competition ``is a primary cause of the rapid and ongoing
decline of northern spotted owl populations'' and poses a
similar risk to California spotted owls as barred owl
populations expand southward.
The Barred Owl Management Strategy provides a framework for
federal, state, or tribal government agencies, or private
landowners, to implement barred owl management. The Strategy
involves the lethal removal of barred owls from specific
areas and describes removal protocols and a monitoring plan
for FWS as well as governmental and non-governmental entities
designated by FWS. The Strategy provides for barred owl
management in all provinces in the northern spotted owl range
and throughout the California spotted owl range.
The MBTA prohibits the lethal removal of protected
migratory bird species, including the barred owl, unless
authorized by FWS in accordance with 50 C.F.R. parts 13 and
21. As part of the Barred Owl ROD, FWS approved the issuance
of a Special Purpose Agency Species Protection Permit to the
FWS Oregon Fish and Wildlife Office under the MBTA to
implement the Strategy in Washington, Oregon, and California,
and to authorize the lethal removal of barred owls by
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FWS and other governmental or non-governmental entities
designated by FWS. In particular, implementers and removal
specialists designated by FWS under the MBTA Permit must meet
the training and skill requirements described in the Strategy
and must follow the Strategy's removal protocols.
The ROD states that it was prepared in accordance with the
requirements of the National Environmental Policy Act of
1969, as amended (NEPA), the Council on Environmental
Quality's NEPA implementing regulations in effect when the
NEPA process commenced, and Interior's NEPA regulations. As
part of the NEPA process, FWS developed a draft strategy and
shared it for public comment along with a draft Environmental
Impact Statement (EIS). After considering and addressing
comments and input from the public and various stakeholders,
FWS revised the draft Strategy and released it with a final
EIS. The final EIS evaluated six alternatives, and the ROD
adopted the preferred alternative, with some minor clarifying
edits and corrections to the Strategy.
Congressional Review Act (CRA)
CRA, enacted in 1996 to strengthen congressional oversight
of agency rulemaking, requires federal agencies to submit a
report on each new rule to both houses of Congress and the
Comptroller General for review before the rule 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. CRA allows Congress to review
and disapprove rules issued by federal agencies for a period
of 60 days using special procedures. If a resolution of
disapproval is enacted, then the new rule has no force or
effect.
CRA adopts the definition of ``rule'' under the
Administrative Procedure Act (APA), which states that a rule
is ``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, CRA excludes three
categories of APA rules from coverage: (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.
FWS did not submit a CRA report to Congress or the
Comptroller General on the Barred Owl ROD. In its response to
us, Interior provided additional information about the Barred
Owl ROD but did not state a position as to whether it is a
rule under CRA.
DISCUSSION
To determine whether the Barred Owl ROD is a rule subject
to review under CRA, we first address whether it meets the
APA definition of a rule. As explained below, we conclude
that the ROD meets this definition. The next step is to
determine whether the document falls into one of the
categories of APA rules excepted from CRA's requirements. We
conclude that the ROD does not fall within any of the
exceptions. Therefore, the ROD is a rule subject to CRA's
submission requirements.
The Barred Owl ROD is a Rule Under APA
The Barred Owl ROD meets the APA definition of a rule.
First, the ROD is an agency statement as it is an official
document issued by FWS.
Second, the ROD is of future effect. An agency action of
future effect is one ``concerned with policy considerations
for the future rather than the evaluation of past or present
conduct.'' In particular, we previously examined another FWS
record of decision documenting the actions necessary to
restore and maintain certain types of fish in a particular
river. We determined that the essential purpose of the record
of decision was ``to set policy for the future,'' and it was
``clearly intended to have future effect, namely the
restoration and maintenance of . . . [certain] fishery
resources in the . . . [r]iver.'' Like the record of decision
at issue in B-287557, the Barred Owl ROD sets policy for the
future, namely the adopted Barred Owl Management Strategy,
and is likewise intended to restore and maintain certain
wildlife populations, in this case the northern spotted owl
and California spotted owl, in particular geographic areas,
specifically portions of Washington, Oregon, and California.
Finally, the Barred Owl ROD prescribes and implements law
and policy and describes agency procedure and practice
requirements. An agency statement implements, interprets, or
prescribes law or policy when the action creates new
regulations, changes regulatory requirements or official
policy, or alters how the agency will exercise its
discretion, among other things. The ROD prescribes and
implements a new policy, the Barred Owl Management Strategy,
to improve the survival and recovery of northern spotted owls
and to prevent declines in California spotted owls from
barred owl competition through the lethal removal of barred
owls from specific areas.
An agency statement describes agency organization,
procedure, or practice requirements when the statement
discusses the internal operations of an agency, including
statements that govern the conduct of agency proceedings. The
Barred Owl ROD adopts the Barred Owl Management Strategy,
which includes detailed procedures and practices for barred
owl management, and these procedures and practices apply to
FWS to the extent the agency itself engages in barred owl
management. The Strategy also describes procedures for
designating other governmental and non-governmental entities
as implementers and removal specialists. In particular, the
Strategy describes the information that requesting entities
and individuals must submit to FWS and the process for FWS
review and approval. In addition, the Strategy includes a
monitoring program under which implementers must submit
certain information to ensure actions are consistent with the
Strategy and to assess the success of the management effort.
CRA Exceptions
Having determined that the Barred Owl ROD meets the APA
definition of rule, we next consider whether the ROD falls
within one of the three categories of APA rules not subject
to CRA.
(1) Rule of Particular Applicability
The Barred Owl ROD is not a rule of particular
applicability. Such rules are addressed to a specific,
identified person or entity and address actions that person
or entity may or may not take, taking into account facts and
circumstances specific to that person or entity. In
determining whether a rule is one of general or particular
applicability, we have noted that a rule need not apply to
the population as a whole to be considered a rule of general
applicability; rather, all that is required is that the rule
has general applicability within its intended range,
regardless of the magnitude of the range. For example, we
have determined that a rule is one of general applicability
even if the rule is limited to a specific geographic area, so
long as the rule does not apply to specific, identified
persons or entities.
The Barred Owl ROD adopts the Barred Owl Management
Strategy, and although the Strategy is focused on specific
areas within Washington, Oregon, and California, the Strategy
is not addressed to specific, identified persons or entities.
Instead, the Strategy provides a framework for any federal,
state, or tribal government agency, or private landowner, to
implement barred owl management.
(2) Rule of Agency Management or Personnel
The Barred Owl ROD is not a rule of agency management or
personnel. This exception applies to rules relating to
``purely internal agency matters.'' These include rules
related to controlling, directing, or supervising internal
management issues, as well as those related to personnel
issues like communications between employees and managers,
leave, or benefits.
The Barred Owl ROD does not involve internal agency
management or personnel matters. Rather, the ROD adopts a
Barred Owl Management Strategy that provides a framework for
federal, state, or tribal government agencies, or private
landowners, to implement barred owl management. Although FWS
will be one entity implementing the Strategy--as demonstrated
by the issuance of the MBTA Permit to the FWS Oregon Fish and
Wildlife Office--FWS contemplates designating other
governmental and non-governmental entities to implement the
Strategy under its MBTA Permit and also expects that other
entities could potentially apply for their own permit using
the Strategy.
(3) Rule of Agency Organization, Procedure, or Practice that
Does Not Substantially Affect Non-Agency Parties
Finally, the Barred Owl ROD is not a rule of agency
organization, procedure, or practice that does not
substantially affect the rights or obligations of non-agency
parties. A rule of agency organization, procedure, or
practice is a rule that is limited to an agency's methods of
operation or how the agency organizes its internal
operations. Although certain rules directed at non-agency
parties are considered rules of agency organization,
procedure, or practice--such as those that affect the way
regulated entities submit information to an agency, how the
agency reviews that information, or the type or timing of
actions the agency will take based on that submission--rules
that are directed at and primarily concerned with the
behavior of non-agency parties do not fall within this
category.
As discussed above, the Barred Owl Management Strategy
adopted by the ROD provides a framework for non-agency
parties to implement barred owl management. This includes
detailed requirements and guidance for non-agency parties
designated by FWS to implement the Strategy, including
removal protocols and how those parties might prioritize
actions under the Strategy. These elements of the Strategy
are primarily focused on the behavior of those non-agency
parties rather than FWS's internal operations.
On the other hand, the Barred Owl Management Strategy also
describes FWS's methods of operation. For example, the
implementation requirements and guidance apply to FWS to the
extent the agency itself engages in barred owl management
under the Strategy. The Strategy also describes procedures
for designating other governmental and non-governmental
entities as implementers and removal specialists. In
particular, the Strategy describes the information that
requesting entities and individuals must submit to FWS and
the process for FWS review and approval. However,
notwithstanding the inclusion of these agency procedures and
practices, the Strategy's primary focus on the conduct of
non-agency parties implementing barred owl management
establishes that the
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ROD does not qualify as a rule of agency organization,
procedure, or practice.
In addition, the ROD substantially affects the rights or
obligations of non-agency parties. Although the Strategy
adopted by the ROD does not require an entity to implement
barred owl management and actions are limited to the lands of
willing landowners and land managers, we have previously
concluded that rules establishing requirements for voluntary
programs may still substantially affect non-agency parties
that choose to participate.
In B-334146, we examined U.S. Department of Agriculture
actions establishing four new financial assistance programs.
The actions prescribed each program's eligibility
requirements, application requirements, calculation and
distribution of funds, and, in some cases, reporting
requirements and limitations on how funds could be used.
Although participation in the programs was voluntary, we
concluded that the actions substantially affected non-agency
parties because they directly determined whether interested
entities would receive funding under the programs, and, for
certain programs, imposed additional implementation and
reporting requirements on program participants.
The ROD's adoption of the Barred Owl Management Strategy
establishes a new voluntary program for interested
governmental and non-governmental entities. Like the
eligibility and application requirements included in the
actions at issue in B-334146, the Strategy prescribes the
information that must be submitted by non-agency parties
interested in becoming implementers and removal specialists,
as well as qualifications for persons participating in
removal activities. And just as some of the actions in B-
334146 imposed additional requirements on program
participants, the Strategy includes requirements for
individuals and entities designated as implementers by FWS.
For example, the Strategy prescribes detailed protocols for
removal activities, as well as reporting requirements. In
short, the ROD and adopted Strategy substantially affect non-
agency parties by describing who may implement barred owl
removal activities, the information those persons or entities
must submit to FWS (both to be designated as implementers or
removal specialists and as part of subsequent reporting
requirements), and the protocols those persons or entities
must follow when conducting removal activities.
CONCLUSION
The Barred Owl ROD meets the APA definition of a rule, and
no exception applies. Therefore, the ROD is subject to CRA's
requirement that it be submitted to Congress and the
Comptroller General before it can take effect.
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