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.