Congressional Review Act: Application to the Tongass National Forest Land
and Resource Management Plan (Testimony, 07/09/97, GAO/T-OGC-97-54).
GAO discussed the its views on whether the Tongass National Forest Land
and Resource Management Plan is a "rule" under the provisions of the
Small Business Regulatory Enforcement Fairness Act (SBREFA).
GAO noted that: (1) on June 18, 1997, the Chief of the Forest Service
forwarded copies of the Tongass Plan to both Houses of Congress and GAO
following the procedures outlined in SBREFA, while stating at the same
time that land and resource management plans are not subject to the
statute; (2) a summary description of the Plan shows clearly that it
meets the definition of a rule; (3) the Plan implements the requirement
of the National Forest Management Act that the Secretary of Agriculture
develop, maintain, and revise land resource management plans and assure
compliance with the Multiple-Use Sustained-Yield Act of 1960 in setting
forest management direction and harvesting levels; (4) it prescribes the
manner or the policy of the Forest Service for managing the Tongass
National Forest for the future, 10 to 15 years; (5) 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; (6) thus, it meets the elements of a rule: it is of
general applicability (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;
(7) SBREFA sets forth several exceptions to the definition of rules
subject to congressional review; (8) the only one arguably applicable
here is "any rule of agency organization, procedure, or practice that
does not substantially affect the rights or obligations of non-agency
parties"; (8) in GAO's view, the Plan has a substantial effect on
non-agency parties; (9) 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; (10) this management prescription
gives general direction on what may occur within an area allocated to a
particular Designation, the minimum standards for accomplishing each
activity, and guidelines on how to go about accomplishing the standards;
and (11) for the foregoing reasons, it is GAO's opinion that the Tongass
Plan constitutes a rule under SBREFA and it is subject to review by the
Congress in accordance with the procedures set forth therein.
--------------------------- Indexing Terms -----------------------------
REPORTNUM: T-OGC-97-54
TITLE: Congressional Review Act: Application to the Tongass
National Forest Land and Resource Management Plan
DATE: 07/09/97
SUBJECT: Congressional/executive relations
Legislative procedures
Land management
Congressional oversight
Forest management
Reporting requirements
IDENTIFIER: Forest Service Tongass Land Management Plan
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Cover
================================================================ COVER
Before the Committee on Energy and Natural Resources, U.S. Senate,
and Committee on Resources, House of Representatives
For Release on Delivery
Expected at
11:00 a.m., EDT
Wednesday,
July 9, 1997
CONGRESSIONAL REVIEW ACT -
APPLICATION TO THE TONGASS
NATIONAL FOREST LAND AND RESOURCE
MANAGEMENT PLAN
Statement of Robert P. Murphy, General Counsel
GAO/T-OGC-97-54
GAO/OGC-97-54T
(996216)
Abbreviations
=============================================================== ABBREV
============================================================ Chapter 0
Chairman Murkowski, Chairman Young, and Members of the Committees:
I am pleased to appear before you today to discuss the General
Accounting Office's views on whether the Tongass National Forest Land
and Resource Management Plan, issued by the United States Forest
Service on May 23, 1997, is a "rule" under the provisions of the
Small Business Regulatory Enforcement Fairness Act (SBREFA).
Attached to this statement is a detailed legal opinion we recently
issued on the question.
SBREFA was enacted on March 29, 1996, establishing a government-wide
congressional review mechanism of new rules, including the
availability of expedited procedures to enact joint resolutions of
disapproval to overrule federal rulemaking actions. As the joint
statement on the new law by Senators Stevens, Nickles, and Reid
explained, the purpose of the legislation was to restore balance
between the enactment of laws by Congress and their implementation by
the Executive branch. The Congress sought to reclaim some of the
policymaking authority that had been assumed by regulatory agencies
with increased delegation of legislative functions from the Congress
to these agencies.
Congressional oversight of rulemaking as contemplated by SBREFA can
be an important and useful tool for balancing and accommodating the
concerns of American citizens and businesses with federal agency
rulemaking. It is important to assure that Executive branch agencies
are responsive to citizens and businesses about the reach, cost, and
impact of regulations without compromising the statutory mission
given to those agencies. SBREFA seeks to accomplish this by giving
the Congress an opportunity to review rules before they take effect
and to disapprove those found to be too burdensome, excessive,
inappropriate, duplicative, or otherwise objectionable. As of July
3, 1997 (about 15 months following enactment), 79 major rules and
4,833 non-major rules have been submitted under SBREFA.
On June 18, 1997, the Chief of the Forest Service forwarded copies of
the Tongass Plan to both Houses of Congress and our Office following
the procedures outlined in SBREFA, while stating at the same time
that land and resource management plans are not subject to the
statute. An attachment to the transmittal letter states that the
Plan is not a major rule.\1
We conclude that the Tongass Plan constitutes a "rule" under SBREFA.
Therefore, submittal of a report 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, it is not effective until 60
days after the submission of the report to the Congress or
publication in the Federal Register, whichever is later. This would
result in an effective date of August 17, 1997, 60 days after
submission to the Congress.
SBREFA 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, and
the Unfunded Mandates Reform Act of 1995, and any other relevant
information or requirements under any other legislation or any
relevant executive orders.
Once a rule, whether determined to be a major rule or not, is
submitted, special procedures are available for a period of 60
session days in the Senate or 60 legislative days in the House for
Congress to pass a joint resolution of disapproval. These time
periods can be extended upon a congressional adjournment. SBREFA
provides that 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.
There are two questions concerning whether SBREFA procedures are
applicable to the Tongass Plan. The first is whether the Tongass
Plan is a "rule" under SBREFA, that is, an "agency statement of
general . . . applicability and future effect designed to
implement, interpret, or prescribe law or policy." The second is
whether any of the statutory exceptions in SBREFA are applicable. If
the Tongass Plan is a rule, which we conclude it is, there is a third
question--is it a "major" rule, which cannot be effective for 60 days
after presentation to the Congress and GAO. This determination is
reserved to OMB's Office of Information and Regulatory Affairs.
A summary description of the Plan shows clearly that it meets the
definition of a "rule." The Plan implements the requirement of the
National Forest Management Act that the Secretary of Agriculture
develop, maintain, and revise land resource management plans and
assure compliance with the Multiple-Use Sustained-Yield Act of 1960
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 a
"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.
SBREFA sets forth several exceptions to the definition of rules
subject to congressional review. The only one arguably applicable
here is "any rule of agency organization, procedure, or practice that
does not substantially affect the rights or obligations of non-agency
parties."
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
Designation, 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 Designation, managers are to: "Identify
opportunities for interpretation of caves for public education and
enjoyment. Interpretation will generally occur outside this Land Use
Designation." Other standards and guidelines are more specific. For
example, for the Lands Resource in areas of the Wilderness
Designation, 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.
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. 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.
The specific restrictions and prohibitions are binding unless a land
resource plan is amended in accordance with the requirements of the
National Forest Management Plan Act, which provides that a plan may
be amended after adoption following public notice. If the amendment
is a significant change, the revision must be made available to the
public in the vicinity of the affected area at least 3 months before
amendment and the agency must hold public meetings or comparable
processes that foster public participation. We note that the
predecessor Tongass Plan was only amended through this process twice
in over 15 years and both amendments resulted from congressional
action.
In concluding that decisions made in the Plan substantially effect
non-agency parties and are, therefore, not "agency procedures," we
also 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. Clearly the Tongass Plan as a whole has itself a
substantial effect on non-agency parties--it is not in that sense
"procedural"--even though Plan 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. If only site-specific actions were
considered "rules," a regulatory scheme in preparation for 10 years
at a cost of over $13 million, with 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 Plan
constitutes a "rule" under SBREFA; it is subject to review by the
Congress in accordance with the procedures set forth therein.
Thank you Mr. Chairmen. This concludes my prepared remarks. I
would be happy to answer any questions you may have.
(See figure in printed edition.)Attachment
--------------------
\1 A "major rule" is one found by the Office of Information and
Regulatory Affairs, Office of Management and Budget (OMB), 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. � 804(2).
============================================================ Chapter 0
(See figure in printed edition.)
(See figure in printed edition.)
(See figure in printed edition.)
(See figure in printed edition.)
(See figure in printed edition.)
(See figure in printed edition.)
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(See figure in printed edition.)
*** End of document. ***