[Congressional Record Volume 172, Number 144 (Monday, September 14, 2026)]
[Senate]
[Pages S4651-S4652]
From the Congressional Record Online through the Government Publishing Office [www.gpo.gov]
U.S. GOVERNMENT ACCOUNTABILITY OFFICE DECISION
Mr. LEE. Mr. President, I ask unanimous consent that the following
decision from the Government Accountability Office be printed in the
Record.
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, Bureau of Land
Management--Applicability of the Congressional Review Act
to the Bears Ears National Monument Record of Decision
and Approved Resource Management Plan.
File: B-338306.
Date: August 17, 2026.
DIgEST
The U.S. Department of the Interior, Bureau of Land
Management (BLM) issued the Bears Ears National Monument
Record of Decision and Approved Resource Management Plan
(Bears Ears RMP). The Bears Ears RMP designates BLM-
administered lands within the decision area as available or
unavailable for certain uses while ensuring the protection
and restoration of Monument objects, as well as the
historical, cultural, natural, scientific, and
paleontological resources.
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 adopts the definition of a rule
under the Administrative Procedure Act (APA) but excludes
certain categories of rules from coverage. We conclude that
the Bears Ears RMP meets APA's definition of a rule and that
no CRA exception applies. Therefore, the Bears Ears RMP is a
rule subject to CRA's submission requirements.
DEciSION
On January 13, 2025, the U.S. Department of the Interior
(Interior), Bureau of Land Management (BLM) approved the
Bears Ears National Monument Record of Decision and Approved
Resource Management Plan (Bears Ears RMP). We received a
request for a decision about whether the Bears Ears RMP is a
rule for purposes of the Congressional Review Act (CRA). As
discussed below, we conclude that the Bears Ears RMP is a
rule for purposes of CRA.
Our practice when issuing decisions is to obtain the legal
views of the relevant agency on the subject of the request.
Accordingly, we reached out to Interior to obtain the
agency's views. We received Interior's response on June 10,
2026.
BACKGROUND
BLM Public Land Management
Under the Federal Land Policy and Management Act of 1976,
as amended (FLPMA), BLM is responsible for developing,
maintaining, and, when appropriate, revising ``land-use plans
which provide by tracts or areas for the use of the public
lands.'' BLM land-use plans, referred to as ``resource
management plans'' (RMPs), establish goals and objectives to
guide future land and resource management actions implemented
by BLM. Pursuant to FLPMA, BLM established procedures for the
development, revision, and amendment of RMPs.
The objective of resource management planning is to
maximize resource values for the public through a rational,
consistently applied set of regulations and procedures which
promote the concept of multiple use management. An RMP
generally establishes land-use designations; allowable
resource uses, conditions, goals, and objectives; program
constraints and general management practices; areas to be
covered by more specific plans; and other related
information.
The Antiquities Act of 1906
The Antiquities Act of 1906 grants the President authority
to designate national monuments on federal lands that contain
historic landmarks, structures, or other objects of historic
or scientific interest. The President may also reserve
parcels of land as part of the national monuments, but the
statute mandates that such reservations be confined to the
smallest area compatible with the proper care and management
of the protected objects. Proclamations under the Act are
generally self-executing and do not require further action by
Congress.
The President has designated monuments to be overseen by
federal land agencies including, for example, BLM and the
United States Department of Agriculture Forest Service. While
the Antiquities Act empowers the President to create and
shape national monuments, Congress retains its own
constitutional authority over federal property and has acted
on that authority in several ways, for example, converting
certain presidentially designated monuments into national
parks administered by the National Park Service or abolishing
monuments and assigning BLM to manage the public land.
Bears Ears RMP
The Bears Ears RMP aims to provide a framework to guide the
management of the Bears Ears National Monument (Bears Ears
Monument or Monument) consistent with the protection of Bears
Ears objects and other applicable laws, regulations, and
policies. BLM prepared the Bears Ears RMP in response to
Proclamation 10285, which restored conditions and boundaries
of the Bears Ears Monument to its original configuration
established under Proclamation 9558 and retained
approximately 11,200 acres added by Proclamation 9681,
resulting in a Monument reservation of roughly 1.36 million
acres of land administered by the federal government. Among
other things, Proclamation 10285 also withdrew all federal
lands within the Monument from disposition under all laws
relating to mineral and geothermal leasing, subject to valid
existing rights.
BLM initiated development of the Bears Ears RMP in August
of 2022 and completed the process with the issuance of the
Bears Ears RMP on January 13, 2025. In developing the Bears
Ears RMP, BLM created and analyzed six management
alternatives, Alternatives A-E and the Proposed Plan,
addressing land and resource use and other measures for the
protection of the Bears Ears Monument. BLM adopted the
Proposed Plan as the Bears Ears RMP, incorporating
modifications and clarifications made following internal
reviews, protests submitted during the protest period, and
recommendations provided during the Governor's Consistency
Review.
According to BLM, the Bears Ears RMP represents final
decisions that establish a comprehensive framework for the
allocation of resources and management of lands within the
Bears Ears Monument. The Bears Ears RMP provides for a
variety of activities within the Monument while ensuring the
protection and restoration of Monument objects and its
historical, cultural, natural, scientific, and
paleontological resources. For example, the Bears Ears RMP
designates 591,185 acres as closed to off-highway vehicle use
and 483,917 acres as limited to off-highway vehicle use on
BLM-administered lands, and requires permits in certain
areas. It allocates an additional 27,208 acres as unavailable
to livestock grazing and 11,130 acres as limited to trailing
only. The RMP prohibits rock stacking, entering the interior
structures of archaeological sites, and certain aerial
recreation to protect cultural resources and viewsheds. It
also closes campgrounds, developed recreation sites, rock
writing sites, and structural cultural sites to recreational
shooting.
Taken together, these measures establish the Bears Ears RMP
as BLM's final decision governing how the Monument will be
managed and how public use will be regulated to protect
Monument objects and achieve other management goals and
objectives.
Congressional Review Act
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 to the
Comptroller General for review before a 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 a 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 rules from coverage: (1) rules of
[[Page S4652]]
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.
Interior did not submit a CRA report to Congress or the
Comptroller General on the Bears Ears RMP. In its response to
us, Interior stated that it notified Congress in accordance
with ``section 202(e)(2) of FLPMA, 43 U.S.C. Sec. 1712(e)(2),
regarding management decisions in the RMP that exclude a
principal or major use (as defined in 43 U.S.C. Sec. 1702(1))
for more than two years on a tract of land of at least
100,000 acres.'' However, Interior did not state a position
as to whether the Bears Ears RMP is a rule under CRA.
DISCUssION
At issue here is whether the Bears Ears RMP meets CRA's
definition of a rule, which adopts APA's definition of a
rule, with three exceptions. As explained below, we conclude
that it does and that no exceptions apply. Consequently, the
Bears Ears RMP is subject to review under CRA.
The Bears Ears RMP is a Rule under APA
Applying APA's definition of a rule, the Bears Ears RMP
meets all the required elements. First, the Bears Ears RMP is
an agency statement as it was issued by BLM, a federal
agency. Even though BLM prepared the Bears Ears RMP in
response to Proclamation 10285, the Bears Ears RMP
reflects BLM's exercise of its independent authority under
FLPMA to develop land-use plans that provide a framework
for allocating resources and managing the use of public
land, expressed through goals, objectives, allowable uses,
and management decisions. Because the Monument's legal
status exists independently of the Bears Ears RMP,
provisions that acknowledge or implement protections for
the Monument and the objects therein do not change the
RMP's fundamental character as an agency-level
administrative action. Accordingly, the Bears Ears RMP
constitutes an agency statement for purposes of CRA.
Second, the management decisions are of future effect. The
Bears Ears RMP became effective January 13, 2025, when the
Record of Decision was signed. And as of that date, the Bears
Ears RMP established the framework upon which further
decisions will be made. Accordingly, the Bears Ears RMP is a
rule of general applicability and future effect because, as
of its effective date, it directs the long-term allocation of
resources and the use of public land by non-agency parties,
and it establishes the conditions and constraints that will
govern future planning decisions, project approvals, and
management actions within the Monument.
Finally, the Bears Ears RMP implements, interprets, or
prescribes law or policy. The Bears Ears RMP implements and
restates certain provisions in the Proclamations. We have
recognized that `` `a statement by an agency that simply
restates an established interpretation `tread[s] no new
ground' and `le[aves] the world just as it found it, and thus
cannot be fairly described as implementing, interpreting, or
prescribing law or policy.' '' Even so, as explained above,
the Bears Ears RMP also establishes a framework for
allocating resources and expresses new allowable uses and
management decisions necessary to achieve desired outcomes.
Our conclusion here is consistent with our previous
decisions finding similar land-use plans and RMPs implement,
interpret, or prescribe law or policy. Accordingly, the Bears
Ears RMP satisfies the third element of the APA definition of
a ``rule.'' Having met all required elements, the Bears Ears
RMP constitutes a rule under APA.
CRA Exceptions
We must next determine whether any of CRA's three
exceptions apply. CRA provides for three types of rules that
are not subject to its requirements: (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.
(1) Rule of Particular Applicability
The Bears Ears RME is a rule of general applicability,
rather than particular applicability. In our Grand Staircase-
Escalante National Monument (Grand-Staircase) Decision, B-
37705, Jan, 15, 2026, we concluded that the Grand Staircase
RMP was a rule of general applicability because it, among
other things, allocated resources and imposed conditions on
land usage that applied to any person or entity within the
Grand Staircase National Monument. Similarly, here, the Bears
Ears RMP is a rule of general applicability because it
establishes land-use designations, allocates resources, and
imposes conditions on the use of Monument lands that apply
broadly to any person or entity within the Bears Ears
Monument.
(2) Rule of Agency Management or Personnel
The Bears Ears RMP is not a rule of agency management or
personnel, We have previously found that rules that fall into
this category relate to purely internal agency matters.
Because the Bears Ears RMP primarily governs the public's use
of Monument lands by protecting Monument objects, allocating
resources, and delineating how the public may use those
lands, rather than addressing BLM's internal management or
personnel matters, the Bear Ears RMP does not meet CRA's
second exception.
(3) Rule of Agency Organization, Procedure, or Practice
that Does Not Substantially Affect Non-Agency Parties
Lastly, the Bears Ears RMP is not a rule of agency
organization, procedure, or practice that does not
substantially affect the rights or obligations of non-agency
parties. We have previously explained that this exception was
modeled on the APA exception to notice-and-comment rulemaking
requirements for ``rules of agency organization, procedure,
or practice.'' The purpose of the APA exception is to ensure
``that agencies retain latitude in organizing their internal
operations,'' so long as such rules do not have a substantial
impact on non-agency parties.
Following this principle in the CRA context, we have only
applied CRA's third exception to rules that primarily focus
on the internal operations of an agency. For instance, in B-
329926, Sept, 10, 2018, we found that updates to a Social
Security Administration (SSA) hearing manual governing SSA
adjudicators' use of information from the internet qualified
as a rule of agency organization, procedure, or practice.
There, the manual outlined procedures for SSA employees to
follow in processing and adjudicating benefits claims.
Because the manual was directed to and binding only on SSA
officials without imposing new burdens on claimants, we
concluded that the manual met CRA's third exception.
In contrast, rules that are directed at and primarily
concerned with the actions of non-agency parties do not fall
within this exception. Thus, in B-337705, Jan. 15, 2026, we
concluded that the Grand Staircase RMP did not fall within
CRA's third exception because it established land-use
designations, imposed conditions, and allocated resources
that applied to any person or entity within the Grand
Staircase National Monument, rather than solely addressing
the organization of the agency's internal operations.
Although the Bears Ears RMP establishes and directs
internal agency practices and procedures, such as monitoring
cultural resources, collaborating with Tribal Nations, and
conducting travel planning, these elements implement
management decisions in the Bears Ears RMP that concern the
allocation of resources, delineation of land-use, and the
regulation of the conduct of non-agency parties. Like the
Grand Staircase RMP, the Bears Ears RMP is not primarily
focused on making changes to internal agency operations.
Instead, the Bears Ears RMP is directed at, and concerns
itself with, the preservation and management of the Bears
Ears Monument by delineating the use of public land and
resources and the activities that non-agency parties may
engage in within the Monument.
Accordingly, we must also consider whether the Bears Ears
RMP substantially affects the rights or obligations of non-
agency parties. When analyzing this aspect of CRA's third
exception, ``the critical question is whether the agency
action alters the rights or interests of the regulated
entities.'' Along similar lines, courts have determined that
``[a]n agency rule that modifies substantive rights and
interests can only be nominally procedural, and the exemption
for such rules of agency procedure cannot apply.''
In prior decisions, we have concluded that where an RMP
designates use by non-agency parties in the areas it governs,
it has a substantial effect. For example, in B-337705, Jan.
15, 2026, we explained that the Grand Staircase RMP
substantially affected non-agency parties by establishing
land-use designations, foreclosing certain activities,
allocating resources, and imposing conditions upon land-use.
Consistent with our prior decisions concerning other RMPs,
the Bears Ears RMP has a substantial effect on non-agency
parties. The Bears Ears RMP substantially affects the rights
and obligations of non-agency parties by, for example,
establishing land-use zones across the Monument, designating
Areas of Critical Environmental Concern, allocating resources
such as grazing and recreation access, and foreclosing
certain activities through restrictions on off-highway
vehicle use, mineral development, and cultural sites.
Accordingly, the Bears Ears RMP has a substantial impact on
non-agency parties and does not fall within CRA's third
exception.
CONCLUSION
The Bears Ears RMP is a rule for purposes of CRA because it
meets the definition of a rule under APA and no CRA exception
applies. Therefore, the Bears Ears RMP is subject to CRA's
requirement that it be submitted to Congress and the
Comptroller General before it can take effect.
Edda Emmanuelli Perez,
General Counsel
____________________