Journal of Law and Politics
14 J.L. & Pol. 1

Winter 1998


Peter A. Pfohl*

Copyright © 1998 Journal of Law and Politics, Inc.; Peter A. Pfohl

I have worked on various regulatory reform proposals, but none has been as significant to me as . . . legislative review. That's because it, alone, puts important regulatory decisions in the hands of the [only] politically accountable, only directly elected branch of the Government, and that is the Congress. And that's where I think these important public policy decisions belong.(1)

This statement by United States Senator Carl Levin was offered as part of the Senate debate on H.R. 3136, which, effective March 29, 1996, established a new statutory mechanism requiring congressional review of agency rules. Sponsors touted subtitle E of the Contract with America Advancement Act(2) (the "CAAA") as an effective oversight mechanism to check federal agency actions that go too far. Pursuant to the CAAA, any agency "rule"(3) must be submitted to Congress for review.(4)

For "major rules," the CAAA establishes a delayed implementation period of at least sixty days following submission of the rule to Congress. During this time, Congress may pass a joint disapproval resolution preventing the rule from taking effect. (5)

In the year following the CAAA's adoption, executive branch agencies submitted reports to Congress on hundreds of covered agency actions.(6) The CAAA would appear to be an important vehicle for opponents of agency actions.(7) At a minimum, the threat of aggressive congressional review could significantly affect the outcome of individual agency rulemaking proceedings, considering that such proceedings would be conducted with regulators looking over their shoulders at congressional interest in their decisions. Despite the CAAA's promise of increased congressional scrutiny of agency decisionmaking, there is no real evidence that such action has taken place.(8) It remains unclear whether Congress will aggressively utilize the Act.

In at least one instance in 1996, there was a significant disagreement between the Clinton Administration and Congress over the scope of the legislation and whether it applied to certain actions taken by Secretary of Agriculture Dan Glickman. A review of this dispute sheds much light on the breadth of the CAAA as well as its limitations.

During the summer of 1996, several members of Congress were upset about the Secretary of Agriculture's adoption of an agency directive, known as the Glickman Order, involving the Emergency Salvage Timber Sale Program ("ESTSP," or the "Salvage Rider").(9) They demanded that the CAAA's report and wait provisions be followed and that the directive be submitted to Congress for review.(10) Congress and the executive branch exchanged a flurry of letters over whether the Glickman Order was covered by the new Act.(11)

This article seeks to shed light on the meaning and scope of the CAAA's report and wait requirements by examining the events surrounding the implementation of the Glickman Order. The article is divided into three separate parts. Part One provides an overview of the congressional review mechanisms established by subtitle E of the new Act, including: (1) specific government entities and agency actions covered; (2) the scope of agency rules covered; (3) agency reporting requirements; (4) the effective implementation date of covered rules; (5) congressional disapproval procedures; and (6) the insulation of the Act from judicial review. This part next examines the enactment of the ESTSP, the adoption of the Glickman Order clarifying how the program should be carried out, and the ensuing debate between Congress and the executive branch over whether the CAAA's review mechanism procedures were implicated by the Glickman Order.

With this background in place, Part Two comments on the broad scope of agency actions covered by the CAAA. This part lays out the expansive definition of the term "rule" under the Administrative Procedure Act ("APA"). It then discusses how almost all rules under the APA are subject to the CAAA's reporting requirements, including both (1) rules subject to the APA's notice and comment requirements and (2) rules exempt from the Act's notice and comment requirements that are still considered to be agency "rules." This article argues that the Secretary of Agriculture's 1996 ESTSP directive was a covered "rule" under the CAAA.(12)

Part Three demonstrates that the sponsors of the CAAA purposely crafted the Act broadly. This was done to preclude agencies' use of distinctions between different types of rules to avoid compliance with burdensome notice and comment requirements. Part Three then argues that by covering almost all agency actions, the Act may interfere excessively with individual agency autonomy and could lead to agency reticence to issue any rules. Finally, Part Three suggests that the Act would be more effective if it were changed to cover only "major rules." This change would allow Congress to more effectively concentrate on those agency actions that are significant; it would also ensure that agencies are not saddled with onerous reporting requirements.


A. Statutory Overview

On March 29, 1996, President Clinton signed into law the Contract with America Advancement Act.(13) Title II, subtitle E of the CAAA includes a chapter entitled "Congressional Review of Agency Rulemaking."(14) This chapter requires that any "rule" promulgated by a federal agency be submitted to Congress, along with certain accompanying information describing whether it is a "major rule" and its proposed effective date.(15) The CAAA broadly applies to every executive branch "agency" as defined under the APA,(16) including independent regulatory commissions and boards.(17)

1. Definition of a "Rule" and a "Major Rule"

The CAAA categorizes agency rules into two separate classes: (1) "rules" and (2) "major rules." Under the APA, the term "rule" is defined as:

[T]he 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.(18)

The CAAA adopts this definition of the term "rule", with certain limited exceptions. As seen in Section 804(3), the term "rule" does not include:

(A) any rule of particular applicability, including a rule that approves or prescribes for 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; (19)

(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.(20)

The Act defines the term "major rule" as:

[A]ny rule that the Administrator of the Office of Information and Regulatory Affairs of the Office of Management and Budget finds has resulted in or is likely to result in--

(A) an annual effect on the economy of $100,000,000 or more;

(B) a major increase in costs or prices for consumers, individual industries, Federal, State, or local government agencies, or geographic regions; or

(C) significant adverse effects on competition, employment, investment, productivity, innovation, or on the ability of United States-based enterprises to compete with foreign-based enterprises in domestic and export markets.(21) This definition of a "major rule" is substantially similar to that adopted pursuant to Executive Order 12,866, which requires "significant" agency rules be submitted to the Office of Management and Budget (OMB) prior to adoption for review for regulatory impact purposes.(22)

2. Agency Reporting Requirements

Before agency action regarding either "rules" or "major rules" can take effect, the agency must submit a report to each house of Congress(23) and the Comptroller General (CG).(24) Information that must be included in this report includes: "(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."(25)

While the CAAA requires no particular format, OMB has specified that each report "has to be in the form of, or covered by, a formal transmittal letter," including an agency contact person and telephone number.(26) When submitting a report, agencies must also submit other relevant materials to the CG and upon request, to the House and Senate. These submissions include: (1) any cost-benefit analysis and/or regulatory flexibility analysis conducted; (2) any agency action taken relevant to title II of the Unfunded Mandates Reform Act of 1995; and (3) any other analysis required under law or by executive order.(27) For "major rules," the CG has an additional obligation to provide to the congressional "committees of jurisdiction" a report that "shall include an assessment of the agency's compliance with procedural steps required" under the statute.(28) The CAAA requires agencies to "cooperate" with the CG(29) in order to allow the CG to comply with its congressional reporting requirements.

3. The Effective Date for "Non-Major Rules" and "Major Rules"

Under the CAAA, the effective date of a covered agency action varies, depending on whether the action is a "rule" or a "major rule." First, upon submission to Congress, all "rules" are effective on the date provided by the issuing agency.(30) Covered "major rules," however, are subject to a review and disapproval process period.(31) For such "major rules," Congress has a minimum of sixty days to review the rule, during which time it may pass a joint disapproval resolution rejecting the measure.(32) If Congress takes no action during the congressional review period, the agency ruletakes effect as promulgated (subject to certain delayed implementation requirements).(33)

Additionally, for major rules, the CAAA establishes an exemption from the Act's report and wait period. The exemption is invoked where: (1) the President issues an executive order determining that the rule is necessary due to an emergency situation,(34) or (2) the agency "for good cause" finds that "notice and public procedure thereon are impracticable, unnecessary, or contrary to the public interest."(35)

4. Congressional Disapproval Process

Under the CAAA, congressional consideration of a covered agency rule begins with the introduction of a joint resolution of disapproval.(36) The joint resolution first is referred to committee for review.(37) For the Senate, the Act spells out an expedited consideration procedure. If the committee to which a joint resolution is referred does not report the measure out to the entire Senate within twenty calendar days, the committee may discharge it from further consideration by the written petition of thirty senators.(38) If the committee either reports out the joint resolution or a discharge petition is invoked, then the measure is placed on the Senate calendar and is ready for consideration by the entire Senate.(39) Upon motion to proceed to consideration of the joint resolution: (1) all points of order against the joint resolution are waived and the motion is not subject to amendment, postponement, or to a motion to proceed to other business; (2) debate on the floor is limited to ten hours; and (3) at the end of the ten hour debate period, the Senate is required to vote in toto either for or against the joint resolution.(40) The House, in contrast to the Senate, has no provision for special expedited procedures under the CAAA.

The CAAA also contains special House and Senate referral provisions. Under the Act, after one house of Congress passes a joint disapproval resolution, the measure is sent to the other house and is ready for immediate consideration by the entire body.(41) The receiving house may not send the measure to a committee for further review.(42) Instead, the vote on final passage by the receiving house of Congress must be on the entire unamended resolution as passed by the other house.(43)

5. The Insulation of the Act from Judicial Review

The CAAA contains no enforcement procedures. The Act precludes from judicial review any "determination, finding, action, or omission under this chapter."(44) Additionally, it provides that "no court or agency may infer any intent of the Congress from any action or inaction" with respect to the Act.(45) Thus, any action taken by Congress pursuant to the CAAA, or any failure of Congress to act, cannot be used by a party or the court in any subsequent court proceeding addressing covered agency rules.(46)

B. The Emergency Salvage Timber Sale Program

The Emergency Salvage Timber Sale Program was established by the Emergency Supplemental Appropriations and Rescissions Act of 1995 as enacted on July 27, 1995.(47) The Salvage Rider legislation directed the Secretary of Agriculture to expeditiously award contracts permitting salvage timber harvesting on certain federal lands.(48) A salvage timber sale is defined under the statute as "a timber sale for which an important reason for entry includes the removal of disease- or insect-infected trees, dead, damaged, or down trees, or trees affected by fire or imminently susceptible to fire or insect attack."(49) The intended effect of the Salvage Rider was to shorten the period of time required for the approval of salvage timber sales. This was done by eliminating administrative review mechanisms and by limiting and expediting judicial review of challenged sales.(50)

The Salvage Rider also streamlined mandatory environmental review procedures. In particular, the Act left oversight of the environmental effects of proposed salvage timber sales to the "sole discretion" of the Secretaries of Agriculture and of the Interior.(51) More specifically, it made the Secretaries solely responsible for reviewing the effects of proposed salvage sales both on threatened or endangered species and on the environment in general.(52) The Salvage Rider also gave the Secretaries discretion to determine whether logging activities approved under the bill were consistent with applicable land management plans.(53) It further provided that the "documents and procedures" that are required as a prerequisite to timber salvage harvesting would be deemed to satisfy relevant resource statutes, including the National Environmental Policy Act, the Endangered Species Act, and other forest and land management legislation.(54)

Finally, the Salvage Rider provided that "[t]he Secretary concerned is not required to issue formal rules under section 553 of title 5, United States Code, to implement this section or carry out the authorities provided by this section."(55) The authority of the Administration to carry out the Salvage Rider program expired December 31, 1996.(56)

1. Presidential and Other Opposition to the Salvage Rider

Although President Clinton signed into law the omnibus supplemental appropriations bill, including the Salvage Rider, he remained opposed to the timber salvage provisions. Upon signing the bill, the President remarked:

To be sure, I do not support every provision of this bill. For instance, I still do not believe that this bill should contain any of the provisions relating to timber. But the final bill does contain changes in the language that preserve our ability to implement the current forest plans and their standards, and protect other resources such as clean water and fisheries. In addition, I am pleased that the Congress amended the bill to limit its special authorities for timber sales to end on December 31, 1996. Therefore, I have directed the Secretaries of the Interior, Agriculture, Commerce, the Administrator of the Environmental Protection Agency, and other Federal agencies to carry out timber salvage activities consistent with our forest plans and existing environmental laws.(57) A substantial minority in Congress joined the President in opposition to the Salvage Rider. In a letter to the President, several members of Congress blasted the timber salvage program as "an unparalleled failure, made even worse by the passage of the timber salvage rider."(58) These members urged the President to "use [his] moral and real authority to repeal the rider."(59) Congresswoman Elizabeth Furse introduced legislation cosponsored by nearly 150 members of Congress to repeal the Salvage Rider.(60)

2. The Glickman Order

On July 2, 1996, Secretary of Agriculture Dan Glickman sent to the Chief of the Forest Service a memorandum entitled "Revised Direction for Emergency Timber Salvage Sales Conducted Under Section 2001(b) of P.L. 104-19."(61) This order established certain "clarifications in policy" with respect to the Department of Agriculture's implementation of the Salvage Rider.(62) The directive was issued, in part, to "sustai[n] the public's confidence in [the agency's] stewardship of the national forests."(63) Included in the directive were many restrictive provisions. Among other things, the directive: (1) prohibited the use of the salvage rider to prepare salvage sales in inventoried roadless areas; (2) minimized new road building under the rider; (3) clarified when healthy or green trees could be included in a salvage timber sale; (4) defined the terms "imminently susceptible to insect attack" and "imminently susceptible to fire," which were used to describe stands of trees eligible for the salvage program; and (5) required public notice prior to allowing a salvage sale.(64) Secretary Glickman stated that the directive was intended to:

giv[e] guidance on the kind of sales offered under a rider that eliminates environmental safeguards and the public involvement. The government has got to be careful and responsible in the use of this unprecedented power. The salvage rider should be used only where emergency conditions warrant its use. Those places include areas where dead, damaged, downed, and insect- infested trees arerapidly declining in value and where the threat of fire to communities, homes, and people is real.(65)

C. Congressional Response to the Glickman Order

1. Congressional Demands that the Glickman Order Comply With the CAAA's Report and Wait Requirements

With the issuance of the Glickman Order, the Clinton Administration attempted to mollify both the timber industry and environmentalists; instead, it managed to anger both groups. Environmentalists blasted the Glickman Order "as yet another step toward permanent nationwide forest destruction by the Clinton Administration."(66) These groups further stated:

Glickman's memo is just another in a long line of trivial political statements designed to confuse the American people and pacify the environmental community. This memorandum does nothing to dispel the timber industry 'forest health' hoax that was the alleged excuse for passing the timber salvage rider in the first place.(67)

While environmentalists criticized the Glickman Order as being too little too late, supporters of the Salvage Rider thought the directive went too far. Congressional supporters of the ESTSP seized upon the newly created CAAA review mechanisms to prevent (or at least to delay) the implementation of the Glickman Order. In an August 26, 1996 letter, Senator Conrad Burns and Congressman Charles Taylor wrote to Secretary Glickman "[to] inform [the Secretary] that the issuance of the Glickman Order violate[d] the Contract with America Advancement Act of 1996 . . . and to remind [the Secretary] that the Glickman Order [couldnot] be implemented or applied until [the Secretary] first compl[ied] with Subtitle E of the 1996 Act."(68)

This letter argued that because the Glickman Order was a "rule" under the CAAA, the Secretary's order could not take effect until the agency first submitted a required report to Congress and the Comptroller General.(69) The letter also asserted that if the Glickman Order was determined to be a "major rule," then the rule could not be implemented until the sixty day congressional review period elapsed.(70) The letter continued that because the Secretary's failure to submit a report could not be challenged in court, Congress would have to "depend upon [the secretary's] good faith compliance."(71) The letter noted that Congress would be paying close attention to the agency's compliance with the CAAA's reporting requirements.(72) The letter closed with a legislative threat: "If, on the other hand, the Administration chooses to flout this important 1996 Act, please be aware that this could have serious consequences for the Department's budget and for continued congressional oversight of forest management matters."(73)

2. Secretary Glickman's Response

One month later, Secretary Glickman responded to the congressional letter.(74) The Secretary concluded that the Glickman Order did not constitute a "rule" that needed to comply with CAAA's report and wait requirements.(75) The Secretary's principal justification for determining that the order was exempt was that it did not affect non-agency parties.(76)

Secretary Glickman argued:

[c]ase law has firmly established that no one has a right to timber from public lands until a timber sale contract is awarded. My directive does not affect awarded timber contracts. Moreover, the directive specifically notes that any timber sale proposals deferred by my directive may proceed after December 31, 1996, when environmental safeguards and public review processes are restored.(77)

Secretary Glickman also defended his decision on the basis that the Salvage Rider legislation: (1) provided him the authority to carry out the program "notwithstanding any other provision of law," (2) did not require him to issue a formal rule to implement the program, and (3) gave him ultimate discretion to determine what types of salvage sales were emergencies to be pursued under the law. (78)

3. Congressional and GAO Response to the Glickman Letter

On September 23, 1996, Senator Conrad Burns and Congressman Charles H. Taylor wrote back a second time in response to Secretary Glickman.(79) In their letter of response, the Senator and the Congressman disputed the Secretary's determination that his directive need not comply with the reporting requirements of the CAAA.(80) They relied on an analysis conducted by the General Accounting Office (GAO) that concluded the Glickman Order was a "rule" under the 1996 Act.(81) The letter stated:

[The GAO] has held that: (1) the Directive is a "rule" under the terms of this Act; and (2) until a report has been formally submitted to each House and the Comptroller General, the rule is not effective. . . . As you may know, the statute gives the Comptroller General the final say on whether an agency action constitutes a "rule," and whether it meets the criteria for a "major rule" under the statute.

Consequently, to fully comply with the congressional review of agency rulemaking provisions of P.L. 104-121, you will need to send the required reports. In light of this Administration's often repeated commitment to comply with all applicable laws and regulations, we are confident that you will comply with the reasonable reporting requirements of P.L. 104-121. This departure from your commitment can be quickly rectified when you submit the reports that are required to accompany an agency rule under the provisions of P.L. 104-121. Until such time, we hope you will comply with P.L. 104-121 by refraining from the implementation of the July 2 Directive.

We look forward to your transmittal, and to working with you to evaluate whether your July 2 Directive constitutes a "major rule" under the provisions of the statute.(82)

In its analysis referred to in the September 23rd letter, the GAO determined that the Glickman Order was indeed a "rule" under the CAAA and that, as such, it invoked the formal reporting requirements of the Act.(83) The GAO first determined that the Glickman Order met the APA's "rule" requirements because of its definition of trees that were "imminently susceptible" to insect attack and fire, and other "associated trees or trees lacking the characteristics of a healthy and viable ecosystem."(84)

The GAO found that these definitions:

clearly are of general applicability and future effect in implementing and interpreting section 2001 of Public Law 104-19. They establish criteria for the Forest Service to use in selecting areas for emergency salvage timber sales from July 2 until changed by departmentalaction. They directly effect [sic] the size of the program and the number of sales offered for public bid.(85)

Second, the GAO determined that the Glickman Order did not meet any of the CAAA's exceptions. (86) The GAO refuted Secretary Glickman's assertion that the order did "not substantially affect the rights or obligations of non-agency parties" and therefore did not require submission.(87) After examining the legislative history of the 1996 Act, the GAO also concluded that the Glickman Order could not be excluded under the agency procedure or practice exclusion. The GAO asserted:

[w]hile the record before us does not establish how substantially the rule affects private interests, the rule provides substantive criteria for determining what timber should be included in the Emergency Salvage Timber Sale Program, thereby directly affecting the areas of and number of salvage timber sales resulting in cont[r]acts between July 2 and the program termination date (December 31, 1996). The rule is simply not one that is limited to the Forest Service's methods of operation or how the Service organizes its internal operations, but it establishes the standards by which the Forest Service's program determinations will be made. We believe that a legislative rule of this nature cannot be considered to be a rule of "agency organization, procedure, or practice."(88)

Finally, the GAO determined that it knew of no other provision of law excluding the Glickman Order from the CAAA's reporting requirements. It concluded that while the Salvage Rider provided that the Secretary need not issue formal rules pursuant to the APA to implement the Act, "whether or not the July 2 memorandum is subject to APA notice and comment requirements does not bear on whether it is a rule under [the 1996 Act]."(89) The analysis continued:

Agriculture officials have also pointed to section 2001(b)(1) [of the Salvage Rider], which states that the "preparation, advertisement, offering, and awarding of contracts shall beperformed utilizing subsection (c) and notwithstanding any other provision of law." This provision addresses only those laws applicable to the contract formation process, not congressional reporting requirements. Moreover, as noted above, [the CAAA at] 5 U.S.C. § 806(a) provides that the congressional reporting requirements "apply notwithstanding any other provision of law."(90)


As described in Part One above, the CAAA definition of the term "rule" adopts the APA definition of "rule," including both notice and comment and exemption rules. As a result, a wide range of agency actions (as described in detail in this Part) is implicated by the new Act.

A. APA Definition of "Rule"

Under the APA, the courts have defined the term "rule"(91) very broadly. As stated by the District of Columbia Circuit, "[t]he term 'rule' is 'broad enough to include nearly every statement an agency may make."(92) The Attorney General's Manual on the APA explains that "[t]he definition of rule is not limited to substantive rules, but embraces interpretative, organizational and procedural rules as well."(93)

Under the APA, there are two broad classifications of rules. These include both: (1) rules subject to notice and comment procedural requirements and (2) rules exempt from the notice and comment requirements.(94) The type of procedure that an agency is required to follow depends primarily on how an agency rule is classified.(95) While exempt rules are not subject to the APA's broader notice and comment requirements,(96) they still meet the broad definition of a "rule."

As stated by the Supreme Court, "[d]etermining whether an agency's statement is what the APA calls a [notice and comment] 'rule' can be a difficult exercise."(97) However, for the purposes of the reporting requirements of the CAAA, the distinctions are not entirely relevant, except for the distinction between "rules" and "major rules" that implicates the Act's delayed implementation requirements.(98)

1. Informal Rulemaking Subject to the APA's Notice and Comment Requirements

The majority of agency rulemakings, except for certain exempt rules, are considered to be informal. Agency adoption of informal rules is governed by Section 553 of the APA. Section 553 proceedings generally require a three-step notice and comment procedure. These procedural requirements include: (1) public notice of the rule in the Federal Register; (2) opportunity for public participation through written comment; and (3) issuance of the published rule, including a concise general statement of its basis and purpose.(99)

Besides these requirements for informal rules, additional requirements for informal rulemakings may be imposed by executive agencies and by executive orders of the President.(100)

A minority of notice and comment rules are considered "formal rules."(101) The end of APA Section 553(c) provides that formal rulemaking is necessary "[w]hen rules are required by statute to be made on the record after opportunity for an agency hearing."(102) If the underlying statute explicitly requires "on the record" hearing procedures, the formal rulemaking procedures of APA Sections 556 and 557, requiring trial-type oral hearing procedures, must be met.(103)

So-called "hybrid" rulemakings are also a form of notice and comment type rulemaking. Hybrid rules usually are established by law.(104) Typically, these laws require an agency to hold hearings and may also allow parties an opportunity to cross-examinewitnesses.(105) By allowing for oral testimony, hybrid rulemakings afford parties an opportunity to present their views in person to an agency, a procedure that is not required with informal rulemakings (which require only that parties be allowed to submit written comments to the agency).(106)

2. Rules Exempt from APA Notice and Comment Requirements

APA Section 553 exempts three types of rules from its general three step notice and comment procedures. They are: (1) "interpretive rules" and "general statements of policy;"(107) (2) "rules of agency organization, procedure, or practice;"(108) and (3) rules that the agency finds "good cause" to exempt.(109) These rules are exempt from the APA procedural requirements to the extent that no other statutory requirements require such procedure.(110) These rules are not, however, exempt from APA publication requirements.(111)

APA Section 553 completely exempts from certain procedural requirements any agency rules involving (1) military or foreignaffairs, or (2) matters "relating to agency management or personnel or to public property, loans, grants, benefits, or contracts."(112) The later exemptions are known as the "proprietary" functions of the government.(113) Included in these rules would be informal guidance documents, agency procedural manuals, and other such materials.

B. CAAA Definition of "Rule"

The CAAA adopts the APA's broad definition of "rule."(114)

The CAAA definition covers both categories of APA rules described above: notice and comment rules, and exempt rules. The CAAA exempts from its congressional reporting requirements only a limited number of express agency actions (which are discussed in detail in Subsection 2 below).

1. The Glickman Order Meets the CAAA Definition of "Rule"

The Glickman Order most certainly met the broad definition of an agency "rule" as specified above, which includes almost all agency actions--even non- substantive rules and rules of agency organization.(115)

Secretary Glickman asserted that the order was exempt from the reporting requirements under Section 553(a)(2) of the APA, which exempts matters relating to public property (here, timber sold from government land) from the APA's notice and comment requirements.(116) Secretary Glickman also asserted that Section 2001(h) of the Salvage Timber Sale law did not require him to issue notice and comment rules.(117) As described above, however, even non-notice and non-comment rules are covered by the CAAA. The CAAA's Senate sponsors in the legislative debate reinforced this fact:

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 interpretive rules, general statements of policy, guideline documents, and agency policy 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 a rule.(118)

2. The Glickman Order Fails to Fit Any CAAA Exception

Although the Glickman Order effectively meets the broad APA definition of a rule, it may still fall under one of the exceptions to the CAAA's reporting requirements.

a. The Order Is Not Excluded Under Section 804(3)

Section 804(3)(C) exempts any "rule of agency organization, procedure, or practice that does not substantially affect the rights or obligations of non- agency parties" from the CAAA reporting requirements.(119) The Act also excludes "any rule relating to agency management or personnel" under Section 804(3)(B).(120) The legislative history of the CAAA reveals that Congress intended to narrowly construe these exceptions.(121) During the House debate over the Act, a Congressional sponsor described these sections' limited scope as follows:

A statement of agency procedure or practice with a truly minor, incidental effect on nonagency parties is excluded from the definition of a rule. Any other effect, whether direct or indirect, onthe rights or obligations of nonagency parties is a substantial effect within the meaning of the exception. Thus, this 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 or obligations.(122)

The CAAA authors seem to have intended to exclude only purely internal agency management and organization measures. Yet the Glickman Order, by affecting the types and numbers of salvage timber operations that would be permitted, certainly had a "nontrivial effect" on nonagency parties.

b. Other CAAA Exclusions Are Not Met

The CAAA contains two other primary exclusions from its reporting requirements. First, the Act allows the President to submit an executive order proclaiming that the rule should take effect because of important public policy considerations.(123) Second, the Act excludes rules if for "good cause" an agency finds the submission is "impracticable, unnecessary, or contrary to the public interest . . . "(124) With the adoption of the Glickman Order, no executive order was issued, nor was the "good cause" exception invoked by Secretary Glickman.


A review of the debate over the implementation of the Glickman Order reveals the expansive scope of the new law. Almost all substantive actions taken by an agency are subject to congressional review under the CAAA.

A. The Act Intrudes Too Far Into Agency Operations

The legislative history of the CAAA evidences a fundamental suspicion by Congress of the ways in which federal agencies conduct their business. The Act was drafted to allow Congress to review almost all agency actions. The sponsors of the CAAAcrafted the legislation in broad strokes to prevent the agencies from skirting APA notice and comment procedures. The three principal sponsors of the CAAA in the Senate--Senators Nickles, Reid, and Stevens--issued a joint guidance statement on the bill asserting as follows:

The authors are concerned that some agencies have attempted to circumvent notice and comment requirements by trying to give legal effect to general statements of policy, "guidelines," and agency policy and procedure manuals. The authors admonish the agencies that the APA's broad definition of "rule" was adopted by the authors of this legislation to discourage circumvention the requirements of chapter 8.(125)

Unfortunately, in their haste to control what they perceived to be an out-of- control bureaucracy, Congress created a ten-pound mallet to kill an ant. The CAAA subjects any agency action that might affect a member of the public to annual congressional review.(126) This review includes literally thousands of policy statements, guidance documents, and administrative staff manuals.(127) Because of its scope, the Act boldly intrudes into the functioning of executive branch agencies.(128)

Unfortunately, as a result, agencies may be left with no choice but to either flout compliance in limited circumstances, as the Department of Agriculture did in refusing to submit the Glickman Order to Congress, or simply refuse to submit rules altogether.

1. The CAAA Intrudes Upon the Sound Principles of Regulatory Flexibility

Created by the APA

As described above in detail, the APA created a rulemaking regime consisting of two general types of rules: (1) notice and comment rules and (2) non-notice and non-comment rules. There was an important rationale for creating this bifurcated structure: to ensure public participation in the crafting of substantive policy decisions, while preserving agency flexibility to implement non-substantive rules.

As stated by the Supreme Court, "[t]he rule-making provisions of [the APA] . . . were designed to assure fairness and mature consideration of rules of general application."(129) In contrast, the notice and comment provisions were designed to "afford an opportunity for 'the agency promulgating the rule to educate itself before establishing rules and procedures which have a substantial impact on those regulated."(130)

To further the policy goals of deliberateness and public participation in agency rulemaking, court precedents have narrowly defined Section 553 exceptions to the Act's notice and comment requirements.(131) Where there are no substantive rights at stake, however, courts have declined to impose burdensome and expensive reporting requirements on federal agencies. The District of Columbia Circuit described the wisdom of exempting non-substantive types of agency decisions from APA notice and comment requirements as follows:

The reading of the § 553 exemptions that seems most consonant with Congress' purposes in adopting the APA is to construe them as an attempt to preserve agency flexibility in dealing with limited situations where substantive rights are not at stake. The exceptions have a common theme in that they "accommodate situations where the policies promoted by public participation in rulemaking are outweighed by the countervailing considerations of effectiveness, efficiency, expedition and reduction in expense."(132)

The Supreme Court in United States v. Caceres(133) cautioned that restricting agencies' ability to implement non-substantivedecisions through burdensome reporting requirements "would encourage the tendency of some agencies to proceed almost without rules."(134) The Court continued: "[i]n the long run, it is far better to . . . tolerate occasional erroneous administration [by an agency] than either to have no rules except those mandated by statute, or to have them framed in a mere precatory form."(135)

The procedural requirements of the CAAA are obviously less burdensome on agencies than those mandated by the APA's notice and comment provisions. But if an agency is required to submit to Congress almost all of its actions under the CAAA, including non-substantive decisions, the Act potentially could have a chilling effect on the submission of agency rules altogether.

Under the APA, Congress generally grants agencies freedom to adopt policy either on a case-by-case adjudicatory basis, or through rulemaking.(136) While adjudication and rulemaking each have their benefits, commentators have noted several advantages to the use of rulemaking as a means of implementing agency policy.(137) First, rulemaking is considered "fairer" for the regulated community because it affords broader participation than does traditional two-party adjudication.(138) Second, rulemaking provides "greater clarity to those affected as well as greater uniformity in enforcement."(139) Third, when an agency engages in rulemaking, it is better able to control the scope and direction of policy; when adjudicating, agency discretion is more limited because the agency must base its decision upon theindividual facts at hand.(140) Fourth, rulemaking is considered to be more efficient for agencies in that "a general principle . . . can thereafter be applied without reexamination" unlike implementation on a case-by-case basis.(141) Finally, rulemaking has a forceful "binding effect" on the general public, whereas adjudication is generally only binding on the parties involved in a particular agency proceeding.(142)

Unfortunately, the result of restricting agencies' rulemaking power in favor of adjudication might be to encourage the formulation of agency policy through adjudication that is less fair, harder to understand, and generally more uncertain. Instead of openness and public participation in agency decisionmaking, the public might be faced with having to slog through a myriad of agency decisions to understand the law.

The sponsors of the CAAA sought to protect the public through heightened congressional review of agency decisionmaking. Limiting the means by which agencies may formulate policy, however, will likely harm the very public that Congress sought to protect.

B. The Lack of a Judicial Enforcement Provision May Provide Agencies with a "Way Out"

Despite the broad scope of the CAAA, the Act's promise to create "a government-wide congressional review mechanism for most new rules"(143) will likely be problematic. A review of the implementation of the Glickman Order reveals the difficulty that agencies may face in determining when and if a CAAA report must be submitted to Congress.

The Glickman Order most certainly was covered by the CAAA. The Order, however, was not ultimately submitted to Congress for review. Under Section 805 of the Act, any agency "determination, finding, action, or omission" is shielded from judicial challenge.(144) This section is similar to the judicial review provision in Executive Order 12,866.

Under Executive Order 12,866,(145) any "significant regulatory action" must be submitted to the Office of Management and Budget (OMB) for review.(146) Under the order, agencies must provide to the OMB: (1) the draft rule; (2) a "reasonably detailed description of the need for the regulatory action and an explanation of how the regulatory action will meet that need;" and (3) a cost-benefit assessment of the rule.(147) Judicial review of agency determinations under the order is precluded.(148)

Despite this seemingly broad obstacle to judicial enforcement, parties have challenged agency determinations under Executive Order 12,866. Rather than directly challenging agencies' non-compliance with the order's reporting provisions, parties have instead indirectly challenged the enforcement of the underlying rules in question based on the agency's failure to follow review and reporting requirements. Such indirect enforcement efforts, however, have been unsuccessful in the courts.(149)

The CAAA's preclusion of judicial enforcement may provide an "out" for agencies seeking relief from the CAAA requirements. To avoid burdensome reporting requirements for non-substantive type rules or to prevent certain sensitive substantive decisions from being compromised, heads of agencies may simply refuse to submit rules to Congress for review altogether. Therefore, while the Act's reporting requirements presumably apply to thousands of agency actions yearly, agencies might attempt to flout compliance for especially controversial or politically sensitive rules.

If this turns out to be the case, future compliance with the Act may depend largely on vigilant congressional overview and pressure on agencies to engage in good faith compliance. But in the case of the Glickman Order, members of Congress sought to invoke agency compliance by threatening the Department of Agriculture's budget and programs.(150) This threat was unsuccessful.

C. Suggested Amendment to the CAAA

1. Permitting Judicial Review Would Be Destructive

In order to ensure compliance with the CAAA, Congress could amend the Act to provide for a judicial enforcement mechanism. In fact, under subtitle D of the CAAA, Congress amended the Regulatory Flexibility Act ("RFA") in just this manner.(151) Under the RFA, agencies must include with the submission of any proposed and any final rule an analysis of the rule's impact on small entities and alternative actions that may "minimize any significant economic impact" of the rule.(152) Under prior law, judicial enforcement of the RFA was precluded. Under the new law, however, any affected small entity can file suit to enforce agency compliance with the RFA's procedural requirements.(153)

This new enforcement mechanism is too intrusive. One commentator has expressed the negative impact of these new enforcement procedures as follows:

[This] chang[e] w[as] long sought by the small business community, which came to believe, as the Act's sponsors noted, that many agencies gave the RFA lip service at best. The question is whether judicial review will improve compliance, and thus serve the purposes of the Act, more than it will complicate and slow the regulatory process. Clearly, Congress's decision to movecontroversies about regulatory impacts on small entities into court reflects a vision of administrative law in which judicial enforcement stands at the center of a reined-in agency process.(154)

Authorizing judicial review to seek compliance with the CAAA's report and review provisions would be destructive to federal agency operations. Judicial enforcement would lead to protracted litigation over minor, non-substantive rules. Just as the CAAA's burdensome reporting requirements likely will have a "chilling effect" on agency submission of rules altogether, so too could the implementation of an RFA enforcement mechanism.(155)

2. Require Only "Major Rules" To Be Submitted to Congress

In the legislative debate on the CAAA, Senator Carl Levin suggested that "it would have been wiser to have the legislative review apply only to major rules and not every rule issued by Federal agencies."(156) Adjusting the Act to cover only major rules would be consistent with Executive Order 12,866, which requires that only "significant" agency rules be submitted to OMB for review.(157) The term "significant rule" under Executive Order 12,866 is substantially similar to the term "major rule" as defined by the CAAA.(158) Therefore, agencies would be in a much better position to determine which of their actions are subject to the CAAA.

Changing the CAAA to cover only "major rules" would be more effective than the present law in that it: (1) would allow Congress to focus on the rules with the greatest impact on the public; (2) could eliminate needless reporting and paperwork burdens on agencies who likely will be saddled with issuing thousands of such reports to Congress every year; and (3) would promote overall agency compliance with the Act.


This article offers an initial snapshot of the new congressional review scheme established by the CAAA and an account of how the new Act was implemented in one instance during its first year of operation. The events surrounding the implementation of the Glickman Order offer a glimpse of the practical difficulties that Congress has faced, in at least one instance, in enforcing the new law. A review of the events surrounding the adoption of the Glickman Order illustrates several problems that those hoping to utilize the CAAA to block agency actions may face in the future. On the one hand, the Act subjects literally thousands of agency actions to congressional review. On the other hand, the CAAA's preclusion of judicial enforcement means that many particularly sensitive agency actions may not face review if an agency decides to flout compliance. Permitting judicial review, however, would likely have a "chilling effect" on the issuance of agency rulemaking altogether and could bias agency policymaking in favor of adjudication. This could create problems in that the public would be left without a clear understanding of what the law is and the law may be less fair and generally more uncertain.

One possible solution to these problems would be to amend the Act to limit agency submission to Congress of only "major rules." Such an action would help create a more effective congressional oversight mechanism and encourage agency compliance with the Act.

*J.D., The Catholic University of America, Columbus School of Law, 1997; B.A., University of Notre Dame, 1989. The author is an associate at Slover & Loftus. Mr. Pfohl previously served as a legislative assistant for Congressman George J. Hochbrueckner where he was responsible for various policy issues. This article was not written on behalf of any client. The author would like to thank Professor Benjamin Mintz of the Columbus School of Law for his assistance in reviewing this article and for providing helpful suggestions.


1. 142 Cong. Rec. S3122 (daily ed. Mar. 28, 1996) (statement of Sen. Levin).

2. Contract With America Advancement Act of 1996, Pub. L. No. 104-121, § 251, 110 Stat. 847, 868-74 (1996) (codified at 5 U.S.C. §§ 801-08 (Supp. II 1996)) [hereinafter CAAA].

3. See infra notes 18-22, 94-113 and accompanying text (discussing the broad array of agency "rules" subject to the Act's reporting requirements).

4. See infra notes 23-29 and accompanying text (reviewing the CAAA's reporting requirements). The CAAA, as an omnibus bill, includes a wide variety of provisions addressing, inter alia, senior citizens in the workforce, the line item veto, increases in the public debt, and small business regulations. This article's references to the CAAA primarily focus on the congressional regulatory review mechanisms established under subtitle E of the Act (and, to a limited extent, amendments made to the Regulatory Flexibility Act in Part III.C.1, infra notes 149-154 and accompanying text). Therefore, any reference made to the CAAA in this article primarily refers to subtitle E of the Act.

5. See CAAA, 5 U.S.C. § 801(a)(3); see also infra notes 30-35 and accompanying text (reviewing the CAAA's 60-day congressional review process for "major rules").

6. See Morton Rosenberg, Congressional Review of Agency Rulemaking: A Brief Overview and Assessment, Cong. Res. Serv. 96-777A, at 5 (Sept. 18, 1996).

7. See infra notes 36-43 and accompanying text (reviewing the congressional disapproval process).

8. See Rosenberg, supra note 6, at 5 (noting that the "novelty" of the CAAA may be a factor in the lack of congressional utilization of the Act's review mechanisms).

9. Emergency Salvage Timber Sale Program, Pub. L. No. 104-19, § 2001, 109 Stat. 194, 240-47 (1995) (codified at 16 U.S.C. § 1611 (Supp. I 1995)). See infra notes 47-56 and accompanying text (reviewing in detail the salvage timber program).

10. See infra notes 63-70 and accompanying text.

11. See id.

12. It also is possible that the Glickman Order was a "major rule" implicating the delayed implementation requirements of the CAAA, although discussion of this issue is beyond the scope of this article.

13. CAAA, Pub. L. No. 104-121, 110 Stat. 847 (1996) (codified at 5 U.S.C. §§801-08 (Supp. II 1996)). The Act, at Section 253, amended the U.S. Code, to establish a new Chapter 8. Id. at §253.

14. CAAA, 5 U.S.C. Chap. 8. For a detailed review of the new statutory provisions under the CAAA, including a similar overview of the statutory provisions of the new act, see Daniel Cohen & Peter L. Strauss, Congressional Review of Agency Regulations, 49 Admin. L. Rev. 95 (1997); Rosenberg, supra note 6.

15. See CAAA, 5 U.S.C. § 801(a)(1)(A).

16. Administrative Procedure Act, Pub. L. No. 404, 60 Stat. 237 (1946) (codified at various sections of 5 U.S.C.) [hereinafter, APA]. The APA defines agency as "each authority of the Government of the United States, whether or not it is within or subject to review by another agency," with certain limited exceptions. APA, 5 U.S.C § 551(1)(1994). The scope of the term "agency" was designed to be broad, "in recognition of the fact that the Government is divided not only into departments, commissions, and offices, but that these agencies, in turn, are further subdivided into constituent units which may have all the attributes of an agency insofar as rule making and adjudication are concerned." U.S. Dep't of Justice, Attorney General's Manual on the Administrative Procedure Act 9 (1947) [hereinafter Attorney General's Manual].

17. See CAAA, 5 U.S.C. § 804(1) (noting that the term "federal agency" follows the APA's definition of agency); see also Memorandum from Sally Katzen, Administrator, Office of Information and Regulatory Affairs, Office of Management and Budget, to Heads of Executive Departments, Agencies and Independent Establishments 1 (Apr. 2, 1996) (stating that independent commissions and boards are covered by the CAAA)[hereinafter OIRA Memo] (on file with the Journal of Law & Politics); 142 Cong. Rec. H3005 (daily ed. Mar. 28, 1996) (statement by Rep. McIntosh) (noting that "[t]he objective is to cover each and every entity in the executive branch, whether it is a department, independent agency, independent establishment, or Government corporation, whether or not it conducts its rulemaking under section 553(c), and whether or not it is even covered by other provisions of title 5, U.S. Code").

18. APA, 5 U.S.C. § 551(4).

19. CAAA, 5 U.S.C. § 804(3)(A). A joint Senate floor statement reviewing this section describes that this exception would cover letter rulings or other agency opinion letters to individuals, or agency actions that "grant an approval, license, registration, or similar authority to a particular person." 142 Cong. Rec. S3687 (daily ed. Apr. 18, 1996) (joint statement on behalf of Sens. Nickles, Reid, and Stevens).

20. CAAA, 5 U.S.C. § 804(3)(B), (C). The legislative history of both § 804(3)(B) and § 804(3)(C) notes that "[t]he authors' intent in these subsections is to exclude matters of purely internal agency management and organization, but to include matters that substantially affect the rights or obligations of outside parties. The essential focus of this inquiry is not on the type of rule but on its effect on the rights or obligations of non-agency parties." 142 Cong. Rec. S3687 (daily ed. Apr. 18, 1996) (joint statement on behalf of Sens. Nickles, Reid, and Stevens). Besides the CAAA's § 804(3) exceptions, other exceptions under the Act include § 801(c)(2) (governing Presidential exemptions) and § 808(2) (covering agency "good cause" exemptions). CAAA, 5 U.S.C. §§ 801(c)(2), 808(2).

21. CAAA, 5 U.S.C. § 804(2).

22. See Exec. Order No. 12,866, 58 Fed. Reg. 51,735, 51,737-39 (1993). The Office of Information and Regulatory Affairs (OIRA) of the Office of Management and Budget has instructed executive branch agencies that the "definition of 'major' is similar but not identical to the definition of economically 'significant"' as prescribed under § 3(f)(1) of Executive Order 12,866. OIRA Memo, supra note 17, at 2. For implementation purposes, OIRA has instructed all affected agencies to contact them "as soon as possible during the rulemaking" if an agency has questions regarding whether a rule is 'major.' Id.

23. Upon receipt of an agency report submitted pursuant to the Act, the clerk of the House and the secretary of the Senate are to submit the report to "the chairman and ranking member of each standing committee with jurisdiction" over the provision of law under which the rule was issued. CAAA, 5 U.S.C. § 801(a)(1)(C).

24. See id. § 801(a)(1)(A).

25. Id.

26. Office of Information and Regulatory Affairs, Office of Management and Budget, Congressional Review of Agency Rulemaking: Frequently Asked Questions 2 (1996) (excerpt from guidelines disseminated to agencies upon the enactment the CAAA)(on file with the Journal of Law & Politics).

27. See CAAA, 5 U.S.C. § 801(a)(1)(B).

28. Id. § 801(a)(2)(A). Under this section, agencies have fifteen calendar days from the later date of either (i) the submission of the initial report to Congress, or (ii) publication of the rule in the Federal Register, to produce the required report. Id.

29. See id. § 801(a)(2)(B).

30. See id. § 801(a)(4); OIRA Memo, supra note 17, at 1 (providing that "[o]nce this [reporting] obligation is satisfied, all non-major final rules may take effect on the date provided by the agency").

31. See CAAA, 5 U.S.C. § 801(a)(3).

32. See id. § 801(a)(3)(A),(B).

33. See id. § 801(a)(3). Specifically, any covered rule takes effect upon the latest of: (1) sixty days after congressional receipt or publication in the Federal Register of the covered agency action, whichever is later; (2) the date that Congress fails to pass a veto override of any joint resolution of disapproval of the agency action taken pursuant to the Act, or thirty "session days" after receiving a presidential veto, whichever is earlier; or (3) the date the rule otherwise would have taken effect if not for this section (if there is no joint disapproval resolution passed). Id.

34. See id. § 801(c)(2). The President can exempt a covered major rule from review if the rule is determined to be: "(A) necessary because of an imminent threat to health or safety or other emergency; (B) necessary for the enforcement of criminal laws; (C) necessary for national security; or (D) issued pursuant to any statute implementing an international trade agreement." Id.

35. Id. § 808(2). Under the Act, the agency seeking to invoke this exemption is required to "incorporat[e] the finding and a brief statement of reasons therefor in the rule issued." Id. The CAAA also exempts rules affecting or relating to hunting, fishing, or camping. See id. § 808(1).

36. See id. § 802(a). Under the Act, the resolution must be worded as follows: "That Congress disapproves the rule submitted by the ____ relating to ____, and such rule shall have no force or effect." Id. This section of the Act refers only to those joint resolutions that are introduced and acted on by Congress within the sixty day window of congressional review as specified under § 802(a) and (e). Id.

37. See id. § 802(b)(1).

38. See id. § 802(c).

39. See id.

40. See id. § 802(d).

41. See id. § 802(f).

42. See id. § 802 (f)(1).

43. See id. § 802(f)(2)(B).

44. Id. § 805.

45. Id. § 801(g).

46. See Cohen & Strauss, supra note 14, at 104-05 (stating that the CAAA "fails to secure the enhanced congressional responsibility for the outcomes of rulemaking" by mandating that Congress' failure to act has no importance).

47. Emergency Supplemental Appropriations for Additional Disaster Assistance, for Anti-terrorism Initiatives, for Assistance in the Recovery from the Tragedy that Occurred at Oklahoma City, and Rescissions Act, Pub. L. No. 104-19, § 2001, 109 Stat. 194, 240-47 (1995).

48. See id. § 2001(b)(1). The Salvage Rider was designed to "reduce the backlogged volume of salvage timber" through the increased award of salvage timber sales above the program's existing levels. Id.

49. Id. § 2001(a)(3).

50. See id. § 2001(e),(f).

51. See id. § 2001(c)(1).

52. See id.

53. See id.

54. See id. § 2001(i).

55. Id. § 2001(h).

56. See id. § 2001(j).

57. Statement by President William J. Clinton upon signing H.R. 1944, 31 Weekly Comp. Pres. Doc. 1377 (Aug. 7, 1995).

58. Letter from Carolyn B. Mahoney, U.S. Congresswoman, et al., to William J. Clinton, President of the United States 1 (July 1, 1996) (on file with the Journal of Law & Politics).

59. Id.

60. Restoration of Natural Resources Laws on the Public Lands Act of 1995, H.R. 2745, 104th Cong. (1995).

61. Memorandum from Dan Glickman, Secretary, U.S. Dep't of Agric., to Jack Ward Thomas, Chief, U.S. Forest Service (July 2, 1996) [hereinafter Glickman Order] (on file with the Journal of Law & Politics).

62. See id. at 1.

63. Id.

64. See id. at 1-2.

65. U.S. Dep't of Agric., Release No. 0350.96, Agriculture Secretary Glickman Announces New Guidelines for Emergency Timber Salvage Program 2 (July 2, 1996) (on file with the Journal of Law & Politics).

66. Save America's Forests, Save America's Forests Denounces Agriculture Secretary Glickman's Salvage Memorandum as "Too Little, Too Late" 1 (July 3, 1996) (on file with the Journal of Law & Politics). Some in the environmental community were unrelenting in their opposition to the Glickman Order. Save America's Forests decried that "President Clinton continues to alienate and demoralize environmental voters by allowing Glickman to cover up the disaster that is the US Forest Service's salvage program. Glickman's memo is too little, too late. Glickman should not be praising the Forest Service for a 'salvage' job well done, he should be putting corrupt Forest Service employees in jail." Id.

67. Id.

68. Letter from Conrad Burns, U.S. Senator, and Charles H. Taylor, U.S. Congressman, to Dan Glickman, Secretary, U.S. Dep't of Agric. 1 (Aug. 26, 1996) (on file with the Journal of Law & Politics).

69. See id. at 1-2.

70. See id. at 2.

71. Id. at 2-3.

72. See id.

73. Id. at 3.

74. Letter from Dan Glickman, Secretary, U.S. Dep't of Agric. to Conrad Burns, U.S. Senator (Sept. 17, 1996) [hereinafter Glickman Response] (on file with the Journal of Law & Politics). An identical letter was sent from Secretary Glickman to Congressman Taylor. See id. at 2.

75. See id. at 1-2.

76. Id. at 1. The Secretary stated that the "procedures and practices of my directive do not affect the rights or obligations of non-agency parties and are, thus, exempted under 5 U.S.C. 804(3)(C) [of the 1996 Act]." Id. See supra note 20 and accompanying text (refering to the CAAA's exemption provisions under § 804(3)(C)).

77. Glickman Response, supra note 74, at 1.

78. See id. at 1-2.

79. Letter from Conrad Burns, U.S. Senator, and Charles H. Taylor, U.S. Congressman, to Dan Glickman, Secretary, U.S. Dep't of Agric. (Sept. 23, 1996) (on file with the Journal Of Law & Politics).

80. See id. at 1.

81. See id.

82. Id. at 1-2.

83. Letter from Robert P. Murphy, General Counsel, Government Accounting Office, to Larry E. Craig, U.S. Senator and Chairman, Senate Subcommittee on Forests and Public Lands Management 2 (Sept. 16, 1996) (on file with the Journal of Law & Politics) [hereinafter GAO Letter].

84. Id. at 6-8. See supra note 18 and accompanying text (describing a rule under the APA as an "agency statement of general ... applicability and future effect designed to implement, interpret, or prescribe law or policy").

85. GAO Letter, supra note 83, at 7 (footnotes omitted).

86. See id. at 8-9.

87. Id. (internal quotation marks omitted).

88. Id. (footnotes and internal citations omitted).

89. Id. at 9 (footnote omitted).

90. Id. at 10.

91. See supra note 18 and accompanying text (laying out the APA's statutory definition of the term "rule").

92. Chaney v. Heckler, 718 F.2d 1174, 1186 (D.C. Cir. 1983) (quoting Center for Auto Safety v. NHTSA, 710 F.2d 842, 846 (D.C. Cir. 1983) and Batterton v. Marshall, 648 F.2d 694, 700 (D.C. Cir. 1980)), rev'd on other grounds, 470 U.S. 821 (1985).

93. Attorney General's Manual, supra note 16, at 13.

94. While not described in detail herein, agency action that is considered rulemaking activity must follow prescribed APA procedural steps, such as notice and comment under § 553, whereas agency action that is considered adjudication implicates the APA's § 554 requirements. 5 U.S.C. §§ 553, 554 (1994). Usually, the issue at stake is whether the agency action is of general as opposed to individualized applicability. "General" applicability has been described as agency conduct that is legislative in nature, and therefore considered rulemaking. See Jacob A. Stein, Authority to Make Rules; Rulemaking Under the APA, 3 ADMIN. L. § 13.02[4] (1997). In contrast, agency conduct that is adjudicatory in nature is not considered rulemaking activity. See id. The two concepts have been described as follows: Most federal regulatory agencies possess both adjudicatory and rulemaking powers. Rulemaking, the quasi-legislative power, is intended to add substance to the Acts of Congress, to complete absent but necessary details, and to resolve unexpected problems. Adjudication, the quasi-judicial power, is intended to provide for the enforcement of agency statutes and regulations on a case-by-case basis. Id. § 14.01 (footnotes omitted). Determining whether agency action is legislative (i.e. rulemaking) or adjudicatory requires consideration of the "nature of the findings underlying the agency's decision." Id. § 13.02[4]. It must be determined whether those findings are "adjudicative" facts or "legislative" facts. Generally, adjudicative and legislative facts are defined as follows: [A]djudicative facts are those which are uniquely related to activities of the parties that are at issue and relevant to the proper determination of the proceedings. Examples include: what the parties have actually done, how they were done, when they were done, and, in many instances, their underlying motive, intent, and the end purpose sought to be accomplished.... Legislative facts are facts about industry practices, economic impact, scientific data, and other information about which the parties have no special information. An agency may call upon its own expertise in a given field without eliciting testimony in support of either adjudication or as the predicate for a rule.

An adjudicative fact is one that requires evidentiary support in the record; a legislative fact does not. Id. §13.02[4] n.72.

95. See Benjamin W. Mintz & Nancy G. Miller, Office of the Chairman, Administrative Conference of the U.S., A Guide to Federal Agency Rulemaking 37 (2d ed. 1991) (providing an excellent overview of the various APA rules).

96. See id. at 48.

97. Lincoln v. Vigil, 508 U.S. 182, 196-97 (1993).

98. Even the distinction between "major" and other "rules" is not important if the agency invokes the APA's "good cause" exception to make a rule effective immediately. APA, 5 U.S.C. § 553(d)(3)(1994). Language parallel to the APA's "good cause" exception is included in the CAAA. CAAA, 5 U.S.C. § 808(2)(Supp. II 1996). See also infra note 124 and accompanying text (discussing the "good cause" exception to the CAAA's reporting requirements).

99. See APA, 5 U.S.C. § 553; see also Kenneth Culp Davis & Richard J. Pierce, Jr., 1 Administrative Law Treatise § 7.1 (3d ed. 1994) (discussing the general three step procedure for issuance of informal agency rules).

100. See, e.g., Exec. Order No. 12,866, 58 Fed. Reg. 51,735 (1993). Among other requirements, Executive Order 12,866 compels agencies to generate a cost-benefit analysis for "major rules" and to submit such rules to the OMB for review, as well as to evaluate alternatives for proposed rules that maximize net benefits to society. Id. at 51,736.

101. See Davis & Pierce, supra note 99, at § 7.2 (discussing the general differences between formal and informal rulemaking).

102. APA, 5 U.S.C. § 553(c).

103. See id. §§ 556-57; see also United States v. Florida E. Coast Ry. Co., 410 U.S. 224, 234-35 (1973) (noting that formal rulemaking is required only where the underlying statute explicitly requires "on the record" hearing procedures).

104. For a discussion of hybrid rulemaking in general and various hybrid rulemaking statutes, including the Occupational Safety and Health Act, the Consumer Product Safety Act, and others, see Mintz & Miller, supra note 95, at 197-99.

105. Id. at 198.

106. Id. at 47.

107. APA, 5 U.S.C. § 553(b)(3)(A). While a policy statement is not defined in the APA, the Attorney General's Manual defines statements of policy as those "issued by an agency to advise the public prospectively of the manner in which the agency proposes to exercise a discretionary power." Attorney General's Manual, supra note 16, at 30 n.3. Case law has generally characterized policy statements as "not establish[ing] a 'binding norm,' but instead announc[ing] the agency's tentative intentions for the future." Iowa Power & Light Co. v. Burlington N., Inc., 647 F.2d 796, 811 (8th Cir. 1981)(citations omitted). In contrast, interpretive rules are defined by the Attorney General's Manual as "rules or statements issued by an agency to advise the public of the agency's construction of the statutes and rules which it administers." Attorney General's Manual, supra note 16, at 30 n.3.

108. APA, 5 U.S.C. § 553(b)(3)(A). The courts, in determining whether a rule is exempt because it affects only internal agency matters, traditionally have examined whether the action has a "substantial impact" on private parties. The modern test to be applied was set forth by the District of Columbia Circuit in American Hosp. Ass'n v. Bowen, 834 F.2d. 1037 (D.C. Cir. 1987). The test is "whether the agency action ... encodes a substantive value judgment or puts a stamp of approval or disapproval on a given type of behavior." Id. at 1047.

109. APA, 5 U.S.C. § 553(b)(3)(B). This clause exempts rules from regular notice and comment procedure when "the agency for good cause finds ... that notice and public procedure ... are impracticable, unnecessary, or contrary to the public interest." Id. Under this exception, agencies are required to "incorporat[e] the finding and a brief statement of reasons therefore in the rules issued." Id. Courts have generally determined that agency exemptions pursuant to this section are to be construed narrowly. See, e.g., Action on Smoking and Health v. Civil Aeronautics Bd., 713 F.2d 795, 800 (D.C. Cir. 1983).

110. APA, 5 U.S.C. § 553(b).

111. Id. § 552(a)(1).

112. Id. § 553(a).

113. See Attorney General's Manual, supra note 16, at 27.

114. See supra notes 18-20 and accompanying text (discussing the CAAA's adoption of the APA definition of the term "rule").

115. See supra notes 91-93 and accompanying text (noting that the term "rule" inlcudes not only substantive types of rules but non-substantive types of rules as well).

116. See Glickman Response, supra note 74, at 1.

117. See id.

118. 142 Cong. Rec. H3005 (daily ed. Mar. 28, 1996) (statement of Rep. McIntosh).

119. CAAA, 5 U.S.C. § 804(3)(C) (Supp. II 1996).

120. Id. § 804(3)(B). One other CAAA exclusion includes rules of "particular applicability." Id. § 804(3)(A). This exemption was not implicated by the Glickman Order.

121. See supra note 20 and accompanying text (describing the narrow scope of these limited exceptions).

122. 142 Cong. Rec. H3005 (daily ed. Mar. 28, 1996) (statement by Rep. McIntosh).

123. CAAA, 5 U.S.C. § 801(c) (Supp. II 1996). Section 801(c)(2) specifies four areas where an executive order would exempt a rule from congressional review. These include rules that are: "(A) necessary because of an imminent threat to health or safety or other emergency; (B) necessary for the enforcement of criminal laws; (C) necessary for national security; or (D) issued pursuant to any statute implementing an international trade agreement." Id. § 802(c)(2).

124. Id. § 808(2).

125. 142 Cong. Rec. S3687 (daily ed. Apr. 18, 1996) (joint statement on behalf of Sens. Nickles, Reid, and Stevens).

126. See id; see also Cohen & Strauss, supra note 14, at 102-03 (describing the broad definition of the term "rule" under the CAAA).

127. See, e.g., Cohen & Strauss, supra note 14, at 103 (estimating that at minimum Congress would be reviewing 4,600 regulatory actions per year).

128. Id. at 109-10 (noting that the "law places new burdens on an already procedure-laden system" and that the Act "will do little to produce 'better' rulemaking, but will likely increase rulemaking costs and public skepticism").

129. NLRB v. Wyman-Gordon Co., 394 U.S. 759, 764 (1969).

130. Phillips Petroleum Co. v. Johnson, 22 F.3d 616, 620 (5th Cir. 1994) (quoting Texaco, Inc. v. Federal Power Comm'n, 412 F.2d 740, 744 (3d Cir. 1969)).

131. See, e.g., American Hosp. Ass'n v. Bowen, 834 F.2d 1037, 1044 (D.C. Cir. 1987) (citing, inter alia, Alcaraz v. Block, 746 F.2d 593, 612 (D.C. Cir. 1984); National Ass'n of Home Health Agencies v. Schweiker, 690 F.2d 932, 949 (D.C. Cir. 1982), cert. denied, 459 U.S. 1205 (1983)).

132. American Hosp. Ass'n, 834 F.2d at 1045 (citation omitted); accord Department of Labor v. Kast Metals Corp., 744 F.2d 1145, 1151-52 (5th Cir. 1984) (noting that the APA's notice and comment exceptions are "a consequence of Congress's belief that 'certain administrative pronouncements [do] not require public participation in their formulation"') (quoting Pacific Gas & Elec. Co. v. FPC, 506 F.2d 33, 37 (D.C. Cir. 1974)).

133. 440 U.S. 741 (1979).

134. Id. at 756 n.24 (1979) (quoting F. Cooper, Administrative Agencies and the Courts 289-90 (1951)).

135. Id. at 756. Accord, Metro. Sch. Dist. v. Davila, 969 F.2d 485, 492-93 (7th Cir. 1992) ("If the mere delegation of rule-making authority meant all subsequent agency determinations were legislative, and had to meet the notice and comment requirements of the APA, agency functioning would be hamstrung."); United States v. Fitch Oil Co., 676 F.2d 673, 676 n.4 (Temp. Emer. Ct. App. 1982) (noting that eliminating agency exemption from notice and comment requirements "would discourage the agencies in the exercise of the salutary, voluntary privilege of formulating and publicizing revocable internal policies").

136. See SEC v. Chenery Corp., 332 U.S. 194, 203 (1947) ("[T]he choice made between proceeding by general rule or by individual, ad hoc litigation is one that lies primarily in the informed discretion of the administrative agency.")(citation omitted); see also Mintz & Miller, supra note 95, at 90 ("It is generally accepted that agencies are free to decide whether to formulate policy through rulemaking or adjudication.") (footnote omitted).

137. See Mintz & Miller, supra note 95, at 100-03.

138. See id. at 100 (footnote omitted).

139. Id. at 101.

140. See id.

141. Id.

142. See id. at 102. Making policy through adjudication rather than through rulemaking also has its advantages. One advantage to adjudication, of course, is that it eliminates the myriad procedural complexities involved with rulemaking. See id. at 103-04. Adopting policy through adjudication also allows agencies to: (i) more swiftly modify policy than they could through rulemaking, (ii) minimize potential political conflict because adjudication is usually less visible than rulemaking, and (iii) target policies more appropriately to the individual facts of a particular conflict between parties. See id. at 103-05.

143. 142 Cong. Rec. S3687 (daily ed. Apr. 18, 1996) (joint statement on behalf of Sens. Nickles, Reid, and Stevens).

144. See CAAA, 5 U.S.C. § 805 (Supp. II 1996).

145. Exec. Order No. 12,866, 58 Fed. Reg. 51,735 (1993).

146. See id. at 51,741.

147. Id.

148. Under Executive Order 12,866, Section 10 provides: "[t]his Executive order is intended only to improve the internal management of the Federal Government and does not create any right or benefit, substantive or procedural, enforceable at law or equity by a party against the United States, its agencies or instrumentalities, its officers or employees, or any other person." Id. at 51,744.

149. See, e.g., Michigan v. Thomas, 805 F.2d 176, 186-88 (6th Cir. 1986); Associated Fisheries of Maine v. Daley, No. 94-89-P-H, 1997 U.S. Dist. LEXIS 1552, at *18 (D. Me., Feb. 3, 1997) (finding no private cause of action under Executive Order 12,866 or its precursor Executive Order 12,291).

150. See supra notes 72-73 and accompanying text (evidencing congressional attempts to convince Secretary Glickman to comply with the CAAA's reporting requirements by threatening the Department of Agriculture's budget and programs).

151. See Regulatory Flexibility Act, Pub. L. No. 104-121, § 242, 110 Stat. 847, 864-68 (1996) (codified at 5 U.S.C. § 611 (Supp. II 1996)) (inserting a judicial review provision in the Act).

152. Id. §§ 603-04.

153. See id. § 611.

154. Thomas O. Sargentich, The Small Business Regulatory Enforcement Fairness Act, 49 Admin. L. Rev. 123, 128 (1997) (internal footnote omitted).

155. See id. at 136 (noting that under the new RFA judicial enforcement provisions "it is possible that agencies will avoid rulemaking to an even greater degree than they may already do").

156. 142 Cong. Rec. S3122 (daily ed. Mar. 28, 1996). Senator Levin also noted that:

We want to concentrate our energies--at least in the beginning--on the rules that have the greatest impact and not be overwhelmed with requests to review hundreds of rules at the same time. It's been estimated that over 4,000 rules are issued in any 1 year. That amount could simply overtake our ability to be effective with respect to any one rule. That is why I think it would be preferable to have this legislation apply to only major rules ....


157. Exec. Order No. 12,866, 58 Fed. Reg. 51,735, 51,741 (1993).

158. See supra note 22 and accompanying text (noting that the CAAA's definition of "major rule" was very similar to the definition of "significant rule" under Executive Order 12,866).

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