Opinion on Whether Trinity River Record of Decision is a Rule, B-287557, May 14, 2001

B-287557 May 14, 2001 Jump To VIEW DECISION DOWNLOADS RELATED PAGES GAO CONTACTS Highlights GAO commented on whether the Fish and Wildlife Service's Record of Decision (ROD) entitled "Trinity River Mainstem Fishery Restoration" is a "rule" under the Congressional Review Act (CRA) provisions of the Small Business Regulatory Enforcement Fairness Act. GAO held that, under CRA, a rule is an agency action that constitutes a statement of general or particular applicability and future effect designed to implement, interpret, or prescribe law or policy. The Trinity ROD clearly constituted a rule since its essential purpose was to set policy for the future. View Decision Opinion on Whether Trinity River Record of Decision is a Rule, B-287557, May 14, 2001 The Honorable Doug Ose Chairman, Subcommittee on Energy Policy, Natural Resources, and Regulatory Affairs Committee on Government Reform House of Representatives Dear Mr. Chairman: This is in response to your letter of March 19, 2001, requesting our views on whether the Department of the Interior, Fish and Wildlife Service's Record of Decision (ROD) entitled "Trinity River Mainstem Fishery Restoration" is a "rule" under the Congressional Review Act (CRA) provisions of the Small Business Regulatory Enforcement Fairness Act. 5 U.S.C. 801 et seq. The ROD concerns the decreased river flows in the Trinity River Basin caused by the Trinity River Division of the Central Valley Project in 1963. This decreased flow affected the salmon and steelhead runs, and the ROD documents the selection of actions necessary to restore and maintain the anadromous fish in the Trinity River. We requested the views of the Department of the Interior and received them shortly before the issuance of this opinion. For the reasons discussed below, we conclude that this ROD is a "rule" covered by the Congressional Review Act. 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. 5 U.S.C. 806(a). 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. 601 et seq., and the Unfunded Mandates Reform Act of 1995, 5 U.S.C. 202 et seq., and any other relevant information or requirements under any other legislation or any relevant executive orders. 5 U.S.C. 801(a)(1)(B)(I)-(iv). Once a rule, whether determined to be a major rule /1/ 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. 802. These time periods can be extended upon a congressional adjournment. 5 U.S.C. 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. 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. 551(4), which defines rules subject to the Administrative Procedure Act (APA).