Whether Secretary of Agriculture Memorandum Concerning Emergency Salvage Timber Sale Program is a "Rule" under 5 U.S.C. § 801(a)(1)(A), File: B-274505, Date: September 16, 1996

B-274505 Sep 16, 1996 Jump To VIEW DECISION RELATED PAGES GAO CONTACTS Highlights Chairman: This letter is in response to your letter dated August 27. Requesting our views on whether a July 2 memorandum issued by the Secretary of Agriculture concerning the Emergency Salvage Timber Sale Program is a "rule" under a recently enacted provision to be codified at 5 U.S.C. This provision was included in the Contract with America Advancement Act of 1996. /1/ The Emergency Salvage Timber Sale Program was contained in the Emergency Supplemental Appropriations and Rescissions Act of 1995. /2/ As previously agreed. We did not address the question whether the memorandum is a "major rule" under 5 U.S.C. 804(2). /3/ Because of time constraints. We were unable to secure the formal views of the Departments of Agriculture and Justice. View Decision Emergency Salvage Timber Sale Program, B-274505, September 16, 1996 The Honorable Larry E. Craig Chairman, Subcommittee on Forests and Public Lands Management Committee on Energy and Resources United States Senate Dear: Mr. Chairman: This letter is in response to your letter dated August 27, 1996, requesting our views on whether a July 2 memorandum issued by the Secretary of Agriculture concerning the Emergency Salvage Timber Sale Program is a "rule" under a recently enacted provision to be codified at 5 U.S.C. Sec. 801 (a)(1)(A). This provision was included in the Contract with America Advancement Act of 1996. /1/ The Emergency Salvage Timber Sale Program was contained in the Emergency Supplemental Appropriations and Rescissions Act of 1995. /2/ As previously agreed, we did not address the question whether the memorandum is a "major rule" under 5 U.S.C. 804(2). /3/ Because of time constraints, we were unable to secure the formal views of the Departments of Agriculture and Justice, and the Office of Information and Regulatory Affairs, although we discussed the issue informally with officials of these agencies. In our view, the memorandum constitutes a "rule" as defined in 5 U.S.C. Sec. 804(3). As a consequence, the Secretary was required by 5 U.S.C. Sec. 801(a)(1)(A) to submit a report on the memorandum to each House of Congress and the General Accounting Office in order for the rule to become effective. Rules Subject to Congressional Review Subtitle E of Public Law 104-121 added a new chapter 8 to Title 5, United States Code, designed to keep Congress informed about the rulemaking activities of federal agencies and to allow for congressional review of major rules before they go into effect. The requirements of chapter 8 take precedence over any other provision of law. /4/ 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." /5/ 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 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 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. . . . " The exclusions from the APA definition of "rule" for purposes of chapter 8 are: "(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." Chapter 8 provides several ways in which rules may become effective even though the required reports have not been made to the Congress and GAO.