September 30, 2009
The Honorable Tom Vilsack
Secretary
Department of Agriculture
1400 Independence Avenue, S.W.
Washington, DC 20250
Dear Mr. Secretary:
We appreciate that today's announcement of a one-month delay in the effective date of the Animal and Plant Health Inspection Service (APHIS) inspection-fee increases was a step in the right direction. However, while this resolves the immediate issue of implementing these changes in only three days, it does not address our underlying concerns about an APHIS pattern of abuse of the emergency exception to notice-and-comment rulemaking or our longstanding concerns about APHIS management of its resources.
The increases still will occur under an Interim Final Rule issued on an emergency basis, which means there will have been no opportunity for prior public comment. As I stated in my September 28 letter, we fail to see any "emergency" that outweighs the normally required process of a proposed rule followed by public comments.
Indeed, this is not the first time that APHIS has declared an "emergency" to justify an interim rule. In fact, the last two times there were changes in the fee collections, APHIS claimed an emergency to avoid traditional notice-and-comment rulemaking. On December 9,2004, APHIS issued an "emergency" Interim Rule regarding fee increases effective January 1,2005. In addition, on August 25,2006, APHIS issued another "emergency" Interim Rule removing longstanding exemptions for arrivals from Canada. In those cases, just as in this one, the emergency was illusory, or the result of mismanagement of the rulemaking. Then, as now, the use of an Interim Final Rule has not been justified. No Department should be able to dawdle internally and then declare an emergency to ensure immediate implementation. We fail to see why APHIS continually believes that it is not required to follow normal rulemaking procedures.
The Administrative Procedure Act (APA), codified at 5 U.S.C. § 553, requires agencies to give interested parties a meaningful opportunity to comment on a proposed rule, and it further requires agencies to respond to significant points raised by commenters. Consequently, courts have articulated the principle that the opportunity to comment is meaningless if an agency acts before reviewing comments. The "good cause" exception to providing advance notice and an opportunity to comment is restricted to situations when advance notice is impractical, unnecessary or not in the public interest. The courts do not favor its use and have given it a narrow construction. Not surprising, it is almost never the case that a shortfall in agency revenue qualifies as making advance notice impractical, unnecessary or not in the public interest, and that is true in this particular instance. Here, APHIS' management failure to project its revenue based on known conditions and to act in a prudent manner to cut its costs or to take timely steps to enhance its revenue stream does not justify dispensing with the APA and due process. The APHIS assertion that prior notice and comment is not in the public interest is contradicted by the statement that the agency can continue to function at the current level of activity into February 2010 (74 Fed.Reg. 49312). If APHIS takes prudent steps to reduce its level of services to better respond to current economic conditions, that date can easily be extended. In short, even if it does nothing, APHIS will be able to carry out its functions during the course of normal notice-and-comment rulemaking.
As a result of the current recession, U.S. carriers reduced their capacity by 7 percent in 2009, the largest year-over-year reduction since World War II. Employment at U.S. airlines dropped 28 percent - over 150,000 full-time equivalent employees - from July 2001 to July 2009 in response to economic conditions. Instead of increasing its fees, APHIS should be reducing its cost structure to reflect current and foreseeable economic conditions. The refusal by APHIS to adhere to the APA denies industry the opportunity to get a fair review of the facts, and is a disservice to the public interest in informed decision-making.
For all of the above reasons, we again urge the department to withdraw the IFR and open this matter to a lawful and proper notice-and-comment rulemaking. In addition, given the importance of this matter to Congress and our industry, I would greatly appreciate the opportunity to meet with you at your earliest convenience.