BNUMBER: B-275178
DATE: July 3, 1997
TITLE: Status of the Tongass National Forest Land and Resource
Manageme, B-275178, July 3, 1997
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B-275178
July 3, 1997
The Honorable Ted Stevens
Chairman
Committee on Appropriations
United States Senate
The Honorable Frank H. Murkowski
Chairman
Committee on Energy and Natural Resources
United States Senate
The Honorable Don Young
Chairman
Committee on Resources
House of Representatives
Subject: Status of the Tongass National Forest Land and Resource
Management Plan Under the Small Business Regulatory Enforcement
Fairness Act
This is in response to your joint letter, dated June 5, 1997,
requesting our views on whether the Tongass National Forest Land and
Resource Management Plan, issued by the United States Forest Service,
Department of Agriculture, and signed on May 23, 1997, is a "rule"
under the provisions of the Small Business Regulatory Enforcement
Fairness Act (SBREFA). 5 U.S.C. sec. 801 et seq.
On June 18, 1997, the Chief of the Forest Service forwarded copies of
the Plan to both Houses of Congress and our Office following the
procedures outlined in chapter 8 of title 5 of the United States Code.
However, the transmittal letter accompanying the Plan stated that "The
Forest Service does not consider land and resource management plans to
be subject to the requirements of 5 U.S.C. sec. 800." In addition, on
the "Congressional Notice and Review Report" attached to the
transmittal letter, the Forest Service classifies the Plan as
"non-major."[1] We have informally requested but have not received
the views of the Department of Agriculture and the Office of
Management and Budget on the applicability of chapter 8.
For the reasons which follow, we conclude that the Tongass Plan
constitutes a "rule" as defined in 5 U.S.C. sec. 804(3). Therefore,
submittal of a report, as required by 5 U.S.C. sec. 801(a)(1)(A), to each
House of Congress and the General Accounting Office was necessary in
order for the rule to become effective. If the Office of Information
and Regulatory Affairs determines the rule to be major, the effective
date must be delayed for 60 days after the submission of the report.
Rules Subject to Congressional Review
Chapter 8 of title 5, United States Code, entitled "Congressional
Review of Agency Rulemaking," is designed to keep Congress informed
about the rulemaking activities of federal agencies and to allow for
congressional review of rules. The requirements of chapter 8 take
precedence over any other provision of law.[2]
Section 801(a)(1) provides that before a rule becomes effective, the
agency promulgating the rule must submit to each House of Congress and
to the Comptroller General a report containing:
"(i) a copy of the rule;
"(ii) a concise general statement relating to the rule, including
whether
it is a major rule; and
"(iii) the proposed effective date of the rule."
On the date the report is submitted, the agency also must submit to
the Comptroller General and make available to each House of Congress
certain other documents, including a cost-benefit analysis, if any,
and agency actions relevant to the Regulatory Flexibility Act, 5
U.S.C. sec. 601 et seq., and the Unfunded Mandates Reform Act of 1995, 5
U.S.C. sec. 202 et seq., and any other relevant information or
requirements under any other legislation or any relevant executive
orders. 5 U.S.C. sec. 801(a)(1)(B)(i)-(iv).
Once a rule, whether determined to be a major rule or not, is
submitted in accordance with section 801(a)(1), special procedures for
congressional consideration of a joint resolution of disapproval are
available for a period of 60 session days in the Senate or 60
legislative days in the House. 5 U.S.C. sec. 802. These time periods
can be extended upon a congressional adjournment. 5 U.S.C. sec.
801(d)(1).
A major rule may not become effective until 60 days after it is
submitted to Congress or published in the Federal Register, whichever
is later. 5 U.S.C. sec. 801(a)(3)(A).
Section 804(3) provides that for purposes of chapter 8, with some
exclusions, the term "rule" has the same meaning given the term in 5
U.S.C. sec. 551(4), which defines rules subject to the Administrative
Procedure Act (APA). The APA definition of a "rule" is as follows:
"the whole or 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 and includes the approval or
prescription for the future of rates, wages, corporate or financial
structures or reorganizations thereof, prices, facilities,
appliances,
services or allowances therefor or of valuations, costs, or
accounting,
or practices bearing on any of the foregoing . . . ."
Chapter 8 contains several exclusions from the APA definition of
"rule":
"(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."
5 U.S.C. sec. 804(3).
Land Management Resource Plans Generally
The National Forest Management Act (16 U.S.C. sec. 1600-1614), which
amended the Forest and Rangeland Resources Act, directs the Secretary
of Agriculture to develop, maintain, and revise Land Resource
Management Plans (LRMPs) for units of the National Forest System.
LRMPs guide all natural resource management activities and establish
management standards and guidelines for national forests. When
approved, among other things, an LRMP:
(1)establishes forest multiple-use goals and objectives;
(2)establishes forest-wide management requirements to fulfill the
requirements of 16 U.S.C. sec. 1604 applying to future activities;
(3)establishes management areas and management area direction applying
to future activities in that management area;
(4)designates suitable timber land and establishes allowable timber
sale quantity;[3]
(5)establishes nonwilderness allocations and wilderness designation
recommendations; and
(6)establishes monitoring and evaluation recommendations.[4]
LRMPs are to be revised when conditions have significantly changed, or
at least every 15 years.
Tongass Land and Resource Management Plan
The Tongass LRMP is a revision of the previous Tongass LRMP which was
approved in 1979 and amended in 1986 and 1991. The approved LRMP
consists of the Record of Decision (ROD) and the Forest Plan, which is
based on alternative 11 in the accompanying Final Environmental Impact
Statement.
In order to ensure that the Plan was legally defensible,
scientifically credible, and able to sustain the Forest's resources,
the revision process was extraordinarily long and expensive. The
revision process began in July 1987. In late 1987, over 4,000 copies
of preliminary environmental impact issues were provided to interested
parties, and 22,000 southeast Alaska homes and businesses received
copies through newspaper inserts. This was followed by community
workshops, radio and television news releases, community postings, and
local newspaper stories. The Forest Service received and considered
public comments on a draft plan released in June 1990, a supplemental
plan dated September 1991, and an April 1996 revision to the
supplement. Each of these documents was accompanied by a draft
Environ-
mental Impact Statement (EIS) or a supplemental EIS. During this
time, the Forest Service received over 30,000 comments and was advised
by various panels composed of experts and scientists. The cost of
developing the revised plan and the accompanying EIS is over $13
million.
The LRMP sets forth the management direction for the Tongass Forest
and the desired condition of the Forest to be attained through
Forest-wide multiple-use goals and objectives. These goals and
objectives are subject to management standards and guidelines for each
of 19 individual Land Use Designations (LUDs). Areas of land in the
Forest are allocated to LUDs. Locations of the boundaries of the LUDs
and management areas are set out in the Forest Plan map. Examples of
the LUDs are "Wilderness," "Old-Growth Habitat," "Timber Production,"
and "Scenic River." The Plan describes 22 Resources which are
addressed in each of the LUDs as to the manner in which they should be
managed. Examples of the Resources are "Air," "Fish," "Karst and
Caves," "Minerals and Geology," "Timber," and "Wetlands."
One often controversial subject of LRMPs is timber management. The
Tongass LRMP establishes 2.67 billion board feet per decade or 267
million board feet per year as the allowable sale quantity for timber
in the Forest. While the yearly amount may vary during the decade,
the 2.67 billion board feet is a decadal ceiling of the amount of
timber that will be offered for sale from suitable timberland in the
Forest. The LRMP also establishes which areas of the forest are
subject to logging.
Analysis
There are two questions presented. The first is whether the LRMP is a
"rule," that is, an "agency statement of general . . .
applicability and future effect designed to implement, interpret, or
prescribe law or policy." 5 U.S.C. sec. 551(4). The second is whether
any of the statutory exceptions in chapter 8 are applicable.
A summary description of the LRMP shows clearly that it meets the APA
definition of a "rule" quoted above. The LRMP implements the
requirement of the National Forest Management Act that the Secretary
of Agriculture develop, maintain, and revise LRMPs and assure
compliance with the Multiple-Use Sustained-Yield Act of 1960 (16
U.S.C. sec. 528-531) in setting forest management direction and
harvesting levels. It prescribes the manner or the policy of the
Forest Service for managing the Tongass National Forest for the future
(10-15 years). The various management prescriptions and land use
designations, when read together, set out what type of activities may
occur in various sections of the National Forest. Thus, it meets the
elements of an APA "rule": it is of general applicability (it affects
many parties, private and governmental, concerning the National
Forest) and future effect (10 to 15 years in duration), and it
implements, interprets, and prescribes law and policy. See Lujan v.
National Wildlife Federation, 497 U.S. 871, 892 (1990). (Land
withdrawal review program of the Bureau of Land Management can be
regarded as a rule of general applicability.)
As quoted above, 5 U.S.C. sec. 804(3) sets forth several exceptions to
the definition of rules subject to congressional review. The only one
arguably applicable here is section 804(3)(c): "any rule of agency
organization, procedure, or practice that does not substantially
affect the rights or obligations of non-agency parties." This
language is taken from an APA provision exempting some rules from
requirements for public notice and comment. The APA exception is
itself much broader, including "interpretative rules, general
statements of policy, or rules of agency organization, procedure, or
practice."[5] 5 U.S.C. sec. 553(b)(A).
The Supreme Court has never addressed the meaning of the APA exemption
for rules of "agency procedure." There are federal district court and
court of appeals decisions distinguishing between "substantive" and
"procedural" rules, but these cases have not resulted in a bright line
distinction, largely because "procedure impacts on outcomes and thus
can virtually always be described as affecting substance."[6] JEM
Broadcasting Co., Inc. v. FCC, 22 F.3d 320, 326 (D.C. Cir. 1994). The
resulting effort is characterized by Professors Davis and Pierce as
"analytically intractable," resulting in an "untidy," "murky" area of
law. Kenneth Culp Davis & Richard J. Pierce, Jr., 1 Administrative
Law Treatise sec. 6.4 (3d ed. 1994).
In most cases, the key distinguishing feature the courts find in a
"procedural" rule "is that it covers agency actions that do not
themselves alter the rights or interests of parties, although it may
alter the manner in which the parties present themselves or their
viewpoints to the agency." Id. (quoting from Batterton v. Marshall,
648 F.2d 694, 707 (D.C. Cir. 1980)). This feature was expressly
included in 5 U.S.C. sec. 804(3), which excludes procedural rules that do
not "substantially affect the rights or obligations of non-agency
parties."[7]
In applying the APA exception, courts often consider the purpose and
implication of characterizing a rule as substantive or
procedural--whether the substantive effects of the rule are
"sufficiently grave so that notice and comment are needed to safeguard
the policies underlying the APA." Lamoille Valley R.R.C. v. ICC, 711
F.2d 295, 328 (D.C. Cir. 1983). In this case, the analogous
consideration would be whether the impact of the rule on the rights
and interests of non-agency parties is sufficiently significant that
the Congress should review the Forest Service's exercise of delegated
legislative authority to determine if the rule is "too burdensome,
excessive, inappropriate, or duplicative." 142 Cong. Rec. S3683
(daily ed. April 18, 1996) (statement of Sen. Nickles); 142 Cong. Rec.
E575 (daily ed. April 19, 1996) (remarks of Rep. Hyde).
In our view, the Plan has a substantial effect on non-agency parties.
It allocates areas of the Forest to Land Use Designations and
describes the uses to which the land may be put and the activities
which may occur there. This "management prescription" gives general
direction on what may occur within an area allocated to a particular
LUD, the minimum standards for accomplishing each activity, and
guidelines on how to go about accomplishing the standards.
Some minimum standards and guidelines provide considerable discretion
to forest managers. For example, for the Karst and Caves Resource in
areas of the Wilderness LUD, managers are to: "Identify opportunities
for interpretation of
caves for public education and enjoyment. Interpretation will
generally occur outside this Land Use Designation."[8] Other
standards and guidelines are more specific. For example, for the
Lands Resource in areas of the Wilderness LUD, managers may permit new
special use cabins only if, among other things, the permit is
nontransferable, limited to a 5-year term, and provides that no
motorized equipment may be used unless specifically approved by the
Regional Forester.[9]
Among the more specific standards are those applicable to timber
harvesting. Timber may not be harvested within the 1,000 foot beach
and estuary fringe or buffer zone.[10] In the Wildlife standards and
guidelines, forest stand structural characteristics are listed which
must be maintained after harvesting. For example, in the American
Marten habitat (1) 10-20 percent of the original stand, (2) four large
trees (20-30 inches in diameter) per acre, (3) three large dead or
dying trees (20-30 inches in diameter) per acre, and (4) an average of
three large pieces of down material per acre must remain.[11]
The specific restrictions and prohibitions are binding unless the LRMP
is amended in accordance with the requirements of 16 U.S.C. sec.
1604(f)(4). Section 1604(f)(4) provides that the LRMP may be amended
after adoption following public notice. If the amendment is a
significant change, public involvement comparable to that required by
section 1604(d) is required. Section 1604(d) requires making the
revision available to the public in the vicinity of the affected area
at least 3 months before amendment and holding public meetings or
comparable processes that foster public participation. We note that
the predecessor Tongass LRMP was only amended through this process
twice in over 15 years and both amendments resulted from congressional
action.[12]
In concluding that decisions made in the Plan substantially effect
non-agency parties and are, therefore, not "agency procedures," we
recognize that the regulatory scheme includes a second stage of
decisionmaking in managing the Forest. That stage occurs when Forest
Service officials implement the Plan with respect to a particular area
of the Forest.[13] Clearly the Tongass LRMP as a whole has itself a
substantial effect on non-agency parties--it is not in that sense
"procedural"--even though LRMP restrictions will ultimately be
embodied in site-specific decisions.
We note that to conclude otherwise would effectively frustrate the
SBREFA congressional review mechanism. The vast majority of
site-specific actions concern individual use of particular areas of
the Forest. They would in many cases be rules of "particular
applicability" and thereby be excluded from congressional review. 5
U.S.C. sec. 804(3). If only site-specific actions were considered
"rules," a regulatory scheme in preparation for 10 years at a cost of
over $13 million, with a substantial impact during the next 15 years
on all those who use the Forest, would be insulated from congressional
review.
For the foregoing reasons, it is our opinion that the Tongass LRMP
constitutes a "rule" under SBREFA; it is subject to review by the
Congress in accordance with the procedures set forth in 5 U.S.C. sec.
802.
We trust that this is responsive to your request. If you have any
further
questions on the subject, please call me (512-5400), or Assistant
General Counsel James Vickers (512-8210) of my staff.
Robert P. Murphy
General Counsel
1. A "major rule" is one found by the Office of Information and
Regulatory Affairs, Office of Management and Budget, to meet certain
criteria, such as whether the rule will have an annual effect on the
economy of $100 million or more. 5 U.S.C. sec. 804(2).
2. 5 U.S.C. sec. 806(a) provides that: "This chapter shall apply
notwithstanding any other provision of law."
3. The allowable sale quantity is the maximum quantity of timber that
may be sold from the area of suitable land covered by a forest plan
over a decade. The quantity is usually expressed on an annual basis
as the "average annual allowable sale quantity."
4. Citizens for Environmental Quality v. United States, 731 F. Supp.
970, 977-978 (D. Colo. 1989).
5. In his floor statement during final consideration of the Contract
with America Advancement Act of 1996, of which SBREFA was title III,
Representative McIntosh, a principal sponsor of the legislation,
emphasized that rules subject to congressional review are not the same
as those subject to APA notice and comment requirements:
"All too often, agencies have attempted to circumvent the
notice and comment requirements of the Administrative
Procedure Act by trying to
give legal effect to general policy statements, guidelines,
and agency policy
and procedure manuals. Although agency interpretative
rules, general statements of policy, guideline documents,
and agency and procedure
manuals may not be subject to the notice and comment
provisions of
section 553(c) of title 5, United States Code, these types
of documents
are covered under the congressional review provisions of the
new
chapter 8 of title 5."
"Under section 801(a), covered rules, with very few
exceptions, may not go into effect until the relevant agency
submits a copy of the rule and an accompanying report to
both Houses of Congress. Interpretive rules, general
statements of policy, and analogous agency policy guidelines
are covered without qualification because they meet the
definition of a 'rule' borrowed from section 551 of Title 5,
and are not excluded from the definition of rule." 142
Cong. Rec. H3005 (daily ed. March 28, 1996).
6. We are not aware of litigation concerning whether LRMPs are exempt
from APA public notice and comment requirements (as, for example,
agency statements of policy or procedural rules). This undoubtedly
results from the fact that the National Forest Management Act and
implementing regulations impose more extensive public notice and
comment requirements than those in the APA. See 16 U.S.C. sec. 1604(d);
5 U.S.C. sec. 553(b); and 36 C.F.R. sec. 219.6.
7. Representative McIntosh addressed this aspect of the statute during
final consideration of the Contract with America Advancement Act of
1996 as follows:
"Pursuant to section [804(3)(C)], a rule of agency
organization,
procedure, or practice, is only excluded if it 'does not
substantially
affect the rights or obligations of nonagency parties.' The
focus of
the test is not on the type of rule but on its effect on the
rights or
obligations of nonagency parties. A statement of agency
procedures
or practice with a truly minor, incidental effect on
nonagency parties
is excluded from the definition of the rule. Any other
effect, whether
direct or indirect, on the rights and obligations of
nonagency parties
is a substantial effect within the meaning of the exception.
Thus, the
exception should be read narrowly and resolved in favor of
nonagency
parties who can demonstrate that the rule will have a
nontrivial effect
on their rights and obligations." 142 Cong. Rec. H3005
(daily ed.
March 28, 1996).
8. Tongass National Forest Land and Resource Management Plan, Forest
Plan, at 3-11.
9. Id.
10. Id. at 4-4 and 4-5.
11. Id. at 4-119.
12. The Alaska National Interests Lands Conservation Act and the
Tongass Timber Reform Act of 1990.
13. Because decisions made in LRMPs are couched in language that makes
mandatory this second stage of site-specific action, justiciability
issues have arisen in cases challenging LRMPs under the judicial
review provisions of the APA. These issues concern whether the case
is "ripe" for judicial review until site-specific action has been
taken, or whether, until site-specific action has been taken, the
plaintiff's injury is sufficient to confer "standing." E.g., Sierra
Club v. Thomas, 105 F.3d 248 (6th Cir. 1997); Wilderness Society v.
Alcock, 83 F.3d 386 (11th Cir. 1996); Sierra Club v. Marita, 46 F.3d
606 (7th Cir. 1995); Idaho Conservation League v. Mumma, 956 F.2d 1508
(9th Cir. 1992). These cases do consider the impact of LRMPs on
plaintiffs before the court, but because they concern very different
legal considerations and examine the effect of only a particular
aspect of an LRMP on a particular party, we do not find them helpful
in this inquiry.