- Email: [email protected]
Applying legal sunshine to the hidden regulation of biological control
Biological Control 35 (2005) 358–365 www.elsevier.com/locate/ybcon
Applying legal sunshine to the hidden regulation of biological control Marc L. Miller a,b,¤, Gregory H. Aplet c,1 a
b
School of Law, Emory University, Atlanta, GA, USA Rogers School of Law, University of Arizona, Tucson, AZ, USA c The Wilderness Society, Denver, CO, USA Received 28 July 2004; accepted 25 July 2005 Available online 6 September 2005
Abstract This article identiWes a serious legal gap in current United States Department of Agriculture (USDA) policy concerning decisions about the review and release of biological pest control agents. Currently, most of the critical documents and the quantitative evidence underlying USDA decisions and policy related to the petition, review, and release of biological pest control agents (biocontrols) for weeds are inaccessible. Current practices do not provide suYcient information for biologists or an informed public to understand or evaluate policy decisions and environmental outcomes. The USDA needs to comply with federal law by making all relevant documents and data available on the internet. Federal law and policy requires that the USDA release all relevant information, and make it readily accessible to all interested parties. Public disclosure of all relevant documents, along with the scientiWc evidence related to the review and release of biocontrols, is required by the Administrative Procedure Act, the Freedom of Information Act, the Federal Advisory Committee Act, the National Environmental Policy Act of 1970, and the Plant Protection Act of 2000. Disclosure of this information will impose at most a trivial Wnancial and administrative burden on the USDA Animal and Plant Health Inspection Service, or the Division of Plant Protection and Quarantine. The importance of full information and open debate in the pursuit of both scientiWc knowledge and sound environmental management far outweighs any administrative burden. 2005 Elsevier Inc. All rights reserved. Keywords: Biological controls; Government in the sunshine; Transparent government; Freedom of Information Act; FOIA; Technical Advisory Group; TAG; Animal and Plant Health Inspection Service; APHIS; United States Department of Agriculture; USDA; Review and release guidelines; Disclosure
In 1993, we published an article questioning why many invasion biologists did not treat the use of biological controls as another (intentionally) introduced species. We also highlighted the absence of clearly applicable federal and state legal authority governing the introduction and subsequent uses of biological control agents. See “Biological Controls: A Little Knowledge is a Dangerous Thing.” Rutgers L. Rev. 45, pp. 285–334 (1993). In January 2004, we were invited to provide further commentary on the intersection *
Corresponding author. Fax: +1 404 727 6820. E-mail addresses: [email protected] [email protected] (G.H. Aplet). 1 Fax: +1 303 650 5942.
(M.L.
Miller),
1049-9644/$ - see front matter 2005 Elsevier Inc. All rights reserved. doi:10.1016/j.biocontrol.2005.07.012
between the science, law and policy related to the introduction of biological control agents. This article presents the legal and policy foundations for that commentary.
1. Introduction Over the past 50 years the process for the review and release of biocontrols developed on an ad hoc basis with little explicit legislative guidance. While USDA/APHIS makes the formal decisions for release, the principal scientiWc input and judgments are made by a Technical Advisory Group for the Biological Control of Weeds (TAG), which has existed in some form since 1957.
M.L. Miller, G.H. Aplet / Biological Control 35 (2005) 358–365
Currently, a skeletal list of applications and Wnal decisions appears on the PPQ/TAG web site.2 The TAG web site provides a chart including, typically in a total of eight words or less, the TAG number, name of petitioner, scientiWc name of agent, scientiWc name of target, the TAG recommendation, and the APHIS action. This information does not satisfy the Department’s disclosure obligations under federal law,3 nor does it provide the scientiWc community the information it needs to evaluate the success of biocontrol eVorts. This article outlines USDA’s legal obligations to disclose information related to the review and release of biological controls, describes the particular documents and data that should be disclosed, and identiWes the important scientiWc and social goals that would be served by disclosure.
2. The duty to disclose under FOIA An array of statutes developed as part of the modern administrative state aim to reveal the nature of policymaking and adjudication by government agencies. The general legal framework for administrative decisionmaking is set out in the Administrative Procedure Act (see Aman and Mayton, 2001). The most important general statute setting out minimum standards of disclosure of public information is the Freedom of Information Act,4 widely known by its acronym FOIA. FOIA explicitly makes every record possessed by a federal agency disclosable to the public, unless it is speciWcally exempted from disclosure or excluded from the Act’s coverage.5 The United States Supreme Court has articulated a basic, two-part test for determining what constitutes “agency records” under FOIA: agency records are records that are: (1) created or obtained by an agency, and (2) under agency control at the time of the FOIA request.6 Any document not exempted and 2 http://www.aphis.usda.gov/ppq/permits/tag/petition.html (last accessed June 9, 2004). The TAG web site was revised as of January 1, 2005, based on arguments made in this article. Letter from Alan S. Green, Director, APHIS, PPQ, to Marc L. Miller (March 15, 2005). These revisions and remaining issues are discussed in a postscript to this article. 3 The text of any relevant Environmental Assessment (“EA”) or Finding of No SigniWcant Impact (“FONSI”) can be found in the Federal Register, as required by the National Environmental Policy Act of 1970, though no citations or links are made from the TAG web site or chart to those documents. Furthermore, these documents, as currently presented in the Federal Register, do not include or represent the entirety of the information and data used to justify the TAG decisions and recommendations. Only summaries, written speciWcally for the layman, are published in the Federal Register. QualiWed professionals outside the Federal Government have been denied access to the data used to substantiate the EA. This practice follows neither the intent nor the letter of the law. 4 5 USC § 552 (2003). 5 NLRB v. Sears, Roebuck & Co., 421 US 132, 136 (1975). 6 US Dep’t of Justice v. Tax Analysts, 492 US 136, 144–145 (1989).
359
produced or obtained by the federal agency is subject to public disclosure.7 That the records may be in an unorthodox format or contain complex scientiWc information does not except them from disclosure under FOIA.8 FOIA does not apply to entities that “are neither chartered by the federal government [n]or controlled by it;”9 however, TAG is both chartered by the federal government and controlled by it, since it is organized under federal agencies and is staVed by members of federal agencies. The TAG web site, which is part of the PPQ web site (and hence APHIS and hence USDA), states that TAG is an “independent voluntary committee” and explains that TAG “recommends to APHIS-PPQ that an agent be approved or denied permission for release.”10 The TAG web site states that: Today, TAG members review petitions for biological control of weeds and provide an exchange of views, information and advice to researchers and those in APHIS responsible for issuing permits for importation, testing, and Weld release of biological control agents of weeds.11 Currently, all but one member of TAG appear to be federal government employees, with the bulk of membership made up by USDA employees.12 The Executive Secretary of TAG is an employee of PPQ, TAG administration is conducted by PPQ, and the TAG web site (a part of USDA/APHIS/PPQ) and “reviewer’s manual” recognize the integral link between TAG and USDA/ APHIS.13 Further, the list of “TAG Petitions–APHIS Actions” conWrms what any participant or observer of
7 Under FOIA, records must be kept by federal agencies. Section 552 of Title 5, United States Code, says, “each agency, upon any request for records which (i) reasonably describes such records ƒ shall make the records promptly available to any person.” 5 USC §552(a)(3)(A) (2003). 8 The 1996 amendments to FOIA explicitly indicate that the term “record” and any other term used in FOIA in reference to information “include[s] any information that would be an agency record subject to the requirements of this section when maintained by an agency in any format, including an electronic format.” 5 USC § 552(f)(2). 9 US Dep’t of Justice, Justice Department Guide to the Freedom of Information Act (1992) (quoting H.R. Rep. No. 1380, 93d Cong., 2d Sess. 14 (1974)). 10 US Dep’t of Agric., Reviewer’s Manual for The Technical Advisory Group for Biological Control Agents of Weeds ([Hereinafter TAG Reviewer’s Manual]). TAG also explains that it “[serves] as a sciencebased link between the research community and regulatory agencies, providing input from stakeholders.” Id. 11 TAG website, at http://www.aphis.usda.gov/ppq/permits/tag/ (last visited July 26, 2004). 12 http://www.aphis.usda.gov/ppq/permits/tag/members.html (Dr. Dan Hilburn, Representing the National Plant Board, is an Administrator with the Plant Division of the Oregon Department of Agriculture, and does not appear to be a federal employee) (last accessed June 9, 2004). The members list also includes a Mexican and Canadian contact who are neither federal employees nor US citizens. 13 See TAG Reviewer’s Manual, supra note 9 at 2-1-2.
360
M.L. Miller, G.H. Aplet / Biological Control 35 (2005) 358–365
the biocontrol review process can conWrm: with very limited exceptions, what TAG proposes, APHIS does. If TAG is in fact an independent committee, then the legal path to disclosure of biological control data and documents might run through the Federal Advisory Committee Act (FACA). While we will discuss this possibility, we are convinced that whether TAG was ever an “independent” committee is purely an historical question. As currently constituted, FOIA is fully applicable to TAG and its recommendations and all of the supporting applications, documents, and data.
3. The inadequacy of current biocontrol review information Through the TAG web site, USDA currently makes only summary information available. As a matter of both law and good policy, it should also make available (1) all of the data and documents used as part of any request for importation, movement, or release of a biological control agent as soon as possible after submission; and (2) all data and documents used for all Environmental Assessments (EAs), Findings of No SigniWcant Impact (FONSI) decisions, Environmental Impact Statements (EISs), and decisions to import, move, test, release, or prevent release of a biological control agent prior to the publication of any proposed biological control action or decision in the Federal Register. SpeciWcally, the following documents should be made available automatically for public and professional review in one easily accessible location on the APHIS or PPQ web site on the internet: • Original Technical Advisory Group (“TAG”) petitions for importation, movement, testing, or release of biocontrol agents, including all supporting data; • Environmental Assessments, FONSIs, and Environmental Impact Statements currently published in the Federal Register, and the data upon which they are made; • Biological Assessments prepared in accordance with the Endangered Species Act of 1973, with all supporting data; • Memoranda explaining and the basis for and nature of the recommendations of TAG to APHIS; • Final decision documents produced by APHIS; • Follow-up reports and monitoring studies required by APHIS and TAG and submitted by the individuals or entities whose petitions for importation, introduction, testing, and release of biocontrol agents are approved. Disclosure, release, and publication of these records are obligations of all federal agencies and advisory com-
mittees involved in the review of petitions. Public access to these records is guaranteed by FOIA.14 Publication of relevant documents after a Wnal decision is made would be insuYcient as both a matter of fundamental principles of administrative law and as a matter of policy. One of the essential aspects of administrative process is that it allows participation—not just ex-post facto review—of government decision-making. Therefore, original TAG petitions for introduction of biological controls should be made available at the time they are submitted, and subsequent documents should be added and linked to the electronic Wles as they become available. Similarly, publication of relevant documents only for those biological control agents approved for introduction would fail minimal standards of administrative process. External reviewers must be able to assess the reasonableness of government decision-making both to approve and refuse private actions that may harm the environment. In addition, scientists can learn from prior refusals about agency concerns, and this should improve the quality and likelihood of success for subsequent proposed introductions. FOIA embraces nine exemptions to the requirement of public disclosure.15 We do not believe that any of these exemptions are relevant here. The most signiWcant exemption issue would be raised by exemption 5 of the Freedom of Information Act, which allows government agencies to withhold from disclosure “inter-agency or intra-agency memorandums [sic] or letters which would not be available by law to a party other than an agency in litigation with the agency.”16 None of the biological control documents or data that should be made public would be covered by common law attorney-client and work-product privileges.17 14 The changes in USDA, APHIS, PPQ, and TAG biological control policy that we propose, including the posting of data and documents now and in the future on the PPQ web site, and any rule requiring that such information be posted, would be exempt from the notice and comment process of section 553 of the Administrative Procedure Act. 15 5 USC § 552(b)(1–9) (2003). 16 See Southwest Center for Biological Diversity v. USDA, 170 F. Supp. 2d 931 (2000). 17 See Missouri ex rel Shorr v. US Army Corps of Engineers, 147 F.3d 708, 710 (8th Cir. 1998) (citing Assembly of State of Cal. v. US Department of Commerce, 968 F.2d 916, 920 (9th Cir. 1992)). Exemption 5 has been interpreted to apply to memoranda or letters that are part of the “deliberative process,” but this interpretation, as with all documents under exemption 5, is limited to documents that would normally be privileged in a civil litigation context. Id. The focus of the deliberative process privilege, which is encompassed by exemption 5, is “to allow agencies freely to explore alternative avenues of action and to engage in internal debates without fear of public scrutiny.” Id. The deliberative process privilege permits nondisclosure if the document is both “predecisional and deliberative.” Id. A predecisional document is one that assists agency decision-makers in making decisions, and that contains personal opinions of the writer, as opposed to the policies of the agency itself. Id. “A document is deliberative if its disclosure would expose the agency’s decision-making process in a way that would discourage candid discussion.” Id.
M.L. Miller, G.H. Aplet / Biological Control 35 (2005) 358–365
The documents and data we recommend be made public focus on the inputs and outputs of the decisions about biocontrols, not the internal workings of TAG or APHIS or the Fish and Wildlife Service (FWS) that lead to those outputs (i.e., only those data and documents sent to TAG as part of petitions for the importation, movement, and release of biological controls, and documents explaining the action or non-action in response to those petitions). Exemption 5 does not exempt any such data or documents. Indeed, we see no justiWcation at law for APHIS or TAG to continue to keep these documents from public view. These documents include scientiWc data and analyses formulated by proponents of new introductions, other non-governmental scientiWc evaluations, and formal evaluations by the Department of Agriculture and other relevant government agencies if the document is submitted to TAG, APHIS, PPQ, or any agency that is part of the APHIS biocontrol decision process.
4. FOIA requires agencies to post information on the internet FOIA was amended by the Electronic Freedom of Information Act Amendments of 1996 to require agencies to provide public access to documents and information using modern information technology.18 Congress found that “[g]overnment agencies increasingly use computers to conduct agency business and to store publicly valuable agency records and information; and ƒ [g]overnment agencies should use new technology to enhance public access to agency records and information.”19 Congress mandated that “[f]or records created on or after November 1, 1996, within 1 year after such date, each agency shall make such records available, including by computer telecommunications ƒ.”20 Moreover, Congress required that “[i]n making any record available to a person under this paragraph, an agency shall provide the record in any form or format requested by the person if the record is readily reproducible by the agency in that form or format.”21 All of the documents and data we identify are produced, maintained, and analyzed on computers and can easily be provided in electronic format. Some of these documents, such as Environmental Impact Statements where they apply, are especially long and complex, and would be vastly less expensive to distribute through the Internet (Gerrard and Herz, 2003). There have been less than 80 petitions for release in the past dozen years, according to the chart on the TAGAPHIS web site, placing the relevant documents for all 80 of these petitions on a web site would involve minimal 18 19 20 21
5 USC § 552(a)(2) (2003). See Pub. L. No. 104–231, 101 Stat. 2422, Sec. 2(a) (1996). 5 USC at §552(a)(2) (2003). 5 USC §552(a)(3)(B) (2003).
361
resources of any kind. Indeed, the numbers of petitions over the years appear to be suYciently low that it would be in the public interest to provide the full record of biocontrol proposals and judgments going back to 1957. Researchers would Wnd earlier records of great interest, since scientiWc follow-up work can and should be done for every introduction. Relevant follow-up studies include critical questions such as: Does the biological control agent still exist? What impact has the agent had on both target and non-target organisms and on ecosystem function over time? Such follow-up is, in fact, mandated by the TAG manual for the sound science required to evaluate both past releases and the probability of expected and unexpected consequences in proposed biocontrol releases. ConWdential reviewers of this article asked why we make such a legal fuss when a request under FOIA could provide the documents we seek. In other words, they ask why typical FOIA request processes are not suYcient to satisfy the concerns for public disclosure and participation in the biological control review process that this article describes. First, FOIA is a statute setting out the minimum requirements for government disclosure of information. Agencies are free to provide more information, or to provide information in a readily accessible format like the Internet that could be legally provided only to those who request the information. APHIS and biological control researchers should aspire to more than the legal minimum—in line with principles proposed by biological control researchers at major workshops (see, e.g., Coulson et al., 1991). Second, FOIA itself has been widely criticized for the massive barriers and delays involved with obtaining information. Congress has noted the persistent and frustrating delays from the FOIA process.22 No scientist could rely on FOIA to become an active participant in any biological control decision-making process. APHIS is not immune to the problem of delay in providing information. At the end of FY 2003 APHIS had 940 pending FOIA requests with 295 days as the median number of days the request had been pending, and over 467 days for complex requests.23 Only Rip Van Winkle would consider these kinds of delays acceptable for active participation in APHIS decision-making.
5. Alternative duty to disclose under FACA In the unlikely instance that a court were to Wnd that TAG is an independent body, such a court would likely 22 Sen. Rpt. 104–272 at 15–16 (May 15, 1996). Frustration with FOIA fueled enactment of the Electronic Freedom of Information Act Amendments in 1996. See also Halstuk (2001) and Tankersley (1998). 23 US Department of Agriculture Freedom of Information Act Annual Report FY 2003, http://www.usda.gov/news/foia/foia2003.htm (last accessed May 26, 2005).
362
M.L. Miller, G.H. Aplet / Biological Control 35 (2005) 358–365
hold that TAG is a “federal advisory committee” under the terms of the Federal Advisory Committee Act (“FACA”).24 FACA deWnes an “advisory committee” as: any committee, board, commission, council, conference, panel, task force, or other similar group, or any subcommittee or other subgroup thereof ƒ, which is (A) established by statute or reorganization plan, or (B) established or utilized by the President, or (C) established or utilized by one or more agencies, in the interest of obtaining advice or recommendations for the President or one or more agencies or oYcers of the Federal Government, except that such term excludes (i) any committee that is composed wholly of fulltime, or permanent part-time, oYcers or employees of the Federal Government.25 As previously noted, according to the TAG web site, TAG currently includes one non-federal employee. Thus, it appears that TAG would not qualify for exclusion as a committee composed “wholly” of federal government employees. If FACA applies to TAG, then TAG and USDA would face identical duties to allow public access to all records produced in the course of agency action. FACA makes advisory committees subject to the Administrative Procedure Act (APA), which in turn incorporates and supplements provisions of FOIA.26 Federal agencies cannot exempt their advisory committees from FACA, but Congress has the authority to do so.27 Congress has not exempted TAG or APHIS-PPQ from FACA.
regard to plant pests and weeds, noting that “the detection, control, eradication, suppression, prevention, or retardation of the spread of plant pests or noxious weeds is necessary for the protection of the agriculture, environment, and economy of the United States.”29 Congress noted that “the unregulated movement of plant pests, noxious weeds, plants, certain biological control organisms, plant products, and articles capable of harboring plant pests or noxious weeds could present an unacceptable risk of introducing or spreading plant pests or noxious weeds”30 and required that “decisions aVecting imports, exports, and interstate movement of products regulated under this title shall be based on sound science.”31 The PPA directed the Secretary of Agriculture not later than June 20, 2001 to “publish for public comment a notice describing the procedures and standards that govern the consideration of import requests (for proposed biological control agents).”32 On October 9, 2001—four months after the Congressional deadline— USDA/APHIS published proposed regulations for biocontrol proposals33 which substantially reproduced the TAG reviewer’s manual. The proposed regulations stated that “TAG’s conclusions regarding the host range of the candidate agent would Wgure prominently in our determination of whether or not the organism posed a risk of appreciably injuring or causing disease or damage in plants other than the target weed.”34 For reasons not disclosed in the Federal Register or on the USDA, APHIS, PPQ, or TAG web sites, no regulations were adopted in Wnal form. Perhaps USDA/ APHIS rejected the idea of simply adopting the TAG reviewer’s manual in light of the absence of full disclo-
6. Plant Protection Act of 2000 mandate 29
28
The Plant Protection Act of 2000 (PPA) provided the Wrst clear statutory recognition of the federal regulation of biological controls. In the PPA, Congress recognized the breadth of the problem of invasive species with 24 5 USC app. §§ 1–14 (2000). Supporting the view that TAG is a government agency within USDA, TAG, and APHIS-PPQ representatives have explained to non-federal scientists that FACA was the reason that n o academic, non-federal scientists are or can be included on TAG and why review by external scientists cannot be used as a routine part of the TAG review process. Personal communication from Svata Louda to Marc Miller, April 19, 2004. 25 5 USC app. I § 3(2) (2000). 26 5 USC §552(a)(3) (2003). 5 USC App. 2 § 10(b) provides: Subject to section 552 of title 5, United States Code, the records, reports, transcripts, minutes, appendixes, working papers, drafts, studies, agenda, or other documents which were made available to or prepared for or by each advisory committee shall be available for public inspection and copying at a single location in the oYces of the advisory committee or the agency to which the advisory committee reports until the advisory committee ceases to exist. 27 Sofamor Danek Group, Inc. v. Gaus, 61 F.3d 929 (D.C. Cir. 1995). 28 Pub. L. 106–224, (codiWed at 7 USC §7701 et. seq.).
7 USC §7701(1). 7 USC § 7701(7). 31 7 USC § 7701(4). 32 See 7 USC § 7712(d): Not later than 1 year after June 20, 2000, the Secretary shall publish for public comment a notice describing the procedures and standards that govern the consideration of import requests (for proposed biological control agents). The notice shall—(1) specify how public input will be sought in advance of and during the process of promulgating regulations necessitating a risk assessment to ensure a fully transparent and publicly accessible process; and (2) Include consideration of the following: (A) Public announcement of import requests that will necessitate a risk assessment. (B) A process for assigning major/nonroutine or minor/routine status to such requests based on current state of supporting scientiWc information. (C) A process for assigning priority to requests. (D) Guidelines for seeking relevant scientiWc and economic information in advance of initiating informal rulemaking. (E) Guidelines for ensuring availability and transparency of assumptions and uncertainties in the risk assessment process including applicable risk mitigation measures relied upon individually or as components of a system of mitigative measures proposed consistent with the purposes of this chapter. 33 Plant Pest Regulations, 66 Fed. Reg. 51,340–401 (Oct. 9, 2001) (7 C.F.R. pt. 300). 34 Plant Pest Regulations, 66 Fed. Reg. 51,346 (Oct. 9, 2001) (proposed “Requirements for the Interstate Movement of Regulated Organisms (§ 330.202)”) (7 C.F.R. pt. 330). 30
M.L. Miller, G.H. Aplet / Biological Control 35 (2005) 358–365
sure in the current process, or because of substantive concerns with the current TAG guidelines. For example, some biologists have explained in peer-reviewed journals that host range alone is insuYcient for a determination of the ecological range of proposed biocontrol agents (see Arnett and Louda, 2002; Louda et al., 2003a,b; Louda and O’Brien, 2002). Other biologists have noted the minimal review and low standards for applications for interstate movement of biocontrol agents. Moreover, once USDA (following the advice of TAG) approves the release of a biological control agent there are no subsequent federal limitations on where, when, or how many times that agent can be applied. Full disclosure of relevant documents and information about the current process would surely help to develop more sound procedures and principles over time. On a broader level, the entire TAG process focuses on the biological control of weeds, not on the biological control of insects and other targets (see generally Miller and Aplet, 1993). To their credit, many biological control researchers have recognized the need for better regulation and procedures for the review and release of all biological controls (Carruthers and PetroV, 1997). But scientiWc concerns with the current TAG guidelines would be a reason for revising the proposed regulations, not killing them altogether. We believe that, in line with Congressional direction in the PPA, USDA/APHIS should promulgate biological control regulations. We refer to the PPA here to emphasize the increasing legal and policy attention directed towards biological controls and the more general issues raised by the full range of harmful non-indigenous species. If biological control regulations are promulgated, they should include provisions for the complete release of data, documents, and analysis proposed in this article. Even if regulations are not promulgated, FOIA demands that the information and data underlying TAG assessment and judgments of the science underlying proposed releases and redistributions of nonindigenous organisms in the United States be made available to the public, including academic scientists with the expertise to evaluate, comment on, and provide constructive professional input for TAG evaluations of the science and for USDA-PPQ policy decisions. It is both frustrating to the scientiWc community and harmful to the collective good to preclude the public, including other scientists, from accessing all of these very important documents and data.
7. Additional grounds for release of biocontrol data In the highly unlikely event that a court considered TAG to be merely a research delegation sponsored by federal grants and not a true component of the federal government, our recommendations still have a basis in
363
federal law. The Omnibus Consolidated and Emergency Supplemental Appropriations Act for Fiscal Year 1999 makes research data generated through federal grants subject to FOIA.35 Senator Lott explained that this provision requires “[f]ederal awarding agencies to ensure that all research results, including underlying research data, funded by the Federal Government ƒ [that are] used by the Federal Government,” be made available through FOIA.36 The Conference Report adds, “[t]he provision applies to all federally funded research data ƒ ”37 The Act includes a provision that directs the OYce of Management and Budget to “require Federal awarding agencies to ensure that all data produced under an award will be made available to the public through the procedures established under the Freedom of Information Act.” At an absolute minimum, all TAG documents and supporting information are research data generated through federal funding from awarding agencies and are thus subject to FOIA. The Wnal revised version of this Act requires agencies to respond to FOIA requests for certain grantee research Wndings by obtaining the requested data from the grantee and processing it for release to the requester.38 Should the overarching agencies implausibly claim TAG records are not in their possession, they are nevertheless required to Wnd the records and make them available if those agencies used TAG input—which, of course, the TAG Guidelines explicitly assert. TAG is an institutional Wlter through which all petitions for release are channeled. TAG recommendations are the driver of the federal biocontrol review process, since the overarching agencies generally adopt TAG recommendations without adjustment. It is understandable that TAG recommendations be aVorded great weight by the overarching agencies since the matters petitioned for are highly technical and out of the scope of expertise of those agencies. But the fact that the overarching agencies do not appear to conduct extensive independent analysis or review emphasizes the importance of publicly revealing the underlying data, research, and analysis that were relied upon in making those determinations. 35 Omnibus Consolidated and Emergency Supplemental Appropriations Act, 1999 (P.L. 105–277, div. A, § 101(h)), 105th Cong., 2d Sess. (1998), 112 Stat. 2681 et seq., reprinted in 1999 USCCAN No. 11, at pp. 566–567. 36 144 Cong. Rec. S12134 (Oct. 9, 1998). 37 Id. 38 We believe that the USDA obligations to make biological control review and release information publicly available exist in the absence of any speciWc request for release of the data. However, along with several colleagues, we have made a formal request to the Secretary of Agriculture for release of the biological control information detailed in this article. See Letter to USDA Secretary Ann M. Veneman from Marc L. Miller, Svata M. Louda, Gregory H. Aplet, Ronald F. Wright, William Buzbee, Gwendolyn Phillips and Anna Makanju (July 12, 2004).
364
M.L. Miller, G.H. Aplet / Biological Control 35 (2005) 358–365
8. Our larger purposes: transparent government Let us conclude by emphasizing the larger purpose of our recommendations. While biocontrols are an important tool in the pest control arsenal, and have seen some signiWcant success stories over the years, each biocontrol introduction is also an introduction of another nonindigenous species, an issue of growing public concern. Neither the full beneWts nor the full harms from biological controls have been fully recognized by the scientiWc community, the legal and policy community, or the general public (see Miller and Aplet, 1993). Indeed, the larger issue of economic, ecological, and other harms from non-indigenous species, of which biocontrols are only one part, is itself only coming to be recognized as a deWning environmental issue (see Miller and Fabian, 2004; OTA, 1993). ScientiWc evaluation and wise policy require good information. At best, the current biocontrol review process might be described as shrouded in mystery; at worst, it appears designed to prevent scientiWc and policy debate of important public issues. It does not invite, and positively prevents, the active discourse and full implementation of the nation’s scientiWc expertise in facilitating the study and evaluation of proposed and approved biocontrol agents. Two hundred years ago, James Madison (1910) explained the danger of such a situation when he wrote: A popular government, without popular information, or the means for acquiring it, is but a Prologue to a Farce or a Tragedy; or perhaps both. Knowledge will forever govern ignorance: And a people who mean to be their own Governors, must arm themselves with the power which knowledge gives. We share Madison’s view of the importance of a government sharing basic knowledge and information with its citizens. Accordingly, we recommend, in line with a host of applicable legal authority, that APHIS, PPQ, and TAG immediately publish all documents and supporting data related to biocontrol proposals, review, and policy decisions on the Internet.
We share your view as to the desirability of transparent government. Therefore, to accommodate your request, we will now post to the Internet the Wnal drafts of petitions for the release of biological control agents received after January 1, 2005, that subsequently result in a release permit. These petitions will be posted at our Agency Web site at www.aphis.gov/ppq/permits/biological/weedbio.html. According to the letter from Director Green, APHIS has committed to provide links to environmental assessments, Wndings of no signiWcant impact, and environmental impact statements related to successful petitions for the release of biological control agents. This is a welcome start. However, as explained in this article, a full administrative process should include petitions for the release of biological control agents and associated documents produced during the review process. Posting proposals and documents as they are produced allows for public participation in the administrative decision-making process; ex-post publication of only Wnal drafts of petitions and related documents does not. Moreover, documents should be posted whether a release permit is granted or not so that scientists can assess the range of scientiWc and policy judgments made by APHIS, and so that scientists proposing releases can respond to agency concerns.
Acknowledgments We thank Svata M. Louda for detailed comments on this article. We also thank Bill Buzbee, Ron Wright, Wendy Phillips, Anna Makanju, for help with this article, and for work advice and co-authorship of the July 12, 2004, letter to United States Department of Agriculture Secretary Ann Veneman on which some of the arguments in this article are based. Additional assistance was provided by Robbie Foote, Emmet Ong, and Douglas Eingurt.
References 9. Postscript A letter presenting points similar to those in this article was sent to United States Department of Agriculture Secretary Ann Veneman in July 2004. Letter to USDA Secretary Ann M. Veneman from Marc L. Miller, Svata M. Louda, Gregory H. Aplet, Ronald F. Wright, William Buzbee, Gwendolyn Phillips and Anna Makanju (July 12, 2004). APHIS responded 8 months later. Letter from Alan S. Green, Director, APHIS, PPQ, to Marc L. Miller (March 15, 2005). According to APHIS, the TAG web site was revised as of January 1, 2005. Director Green wrote:
Aman, A., Mayton, W., 2001. Administrative law, second ed. West Group, New York. Arnett, A.E., Louda, S.M., 2002. Re-test of Rhinocyllus conicus host speciWcity, and the prediction of ecological risk in biological control. Biol. Conserv. 106, 251–257. Carruthers, R.I., PetroV, J.K., (Eds.), 1997. Proceedings of the invitational workshop on USDA activities in biological control—Riverdale, Maryland, and Washington, DC, October 8–11, 1996. U.S. Department of Agriculture, Agricultural Research Service, 1997– 2001. Coulson, J.R., Soper, R.S., Williams, D.W. (Eds.), 1991. Biological control quarantine: Needs and procedures, Proceedings of Workshop. U.S. Department of Agriculture, Agricultural Research Service, ARS-99, Washington, DC.
M.L. Miller, G.H. Aplet / Biological Control 35 (2005) 358–365 Gerrard, M., Herz, M., 2003. Harnessing information technology to improve the environmental impact review process. N. Y. Univer. Envtl. L. J. 12, 18–49. Halstuk, M., 2001. Speed bumps on the information superhighway: A study of federal agency compliance with the Electronic Freedom of Information Act of 1996. Commun. L. Policy 5, 423–468. Louda, S.M., Arnett, A.E., Rand, T.A., Russell, F.L., 2003a. Invasiveness of some biological control insects and adequacy of their ecological risk assessment and regulation. Conserv. Biol. 17, 73–82. Louda, S.M., O’Brien, C.W., 2002. Unexpected ecological impacts of redistributing the exotic weevil, Larinus planus (F.), for the biological control of Canada thistle. Conserv. Biol. 16, 717–727. Louda, S.M., Pemberton, R.W., Johnson, M.T., Follett, P.A., 2003b. Non-target eVects–the Achilles’ heel of biological control? Retro-
365
spective analyses to reduce risk associated with biocontrol introductions. Annu. Rev. Entomol. 48, 365–396. Madison, J., 1910. Letter from James Madison to W.T. Barry. In: Hunt, G. (Ed.), The Writings of James Madison, vol. 9. G.P. Putnam’s Sons, New York. Miller, M., Aplet, G., 1993. Biological control: a little knowledge is a dangerous thing. Rutgers Law Rev. 45, 285–334. Miller, M., Fabian, R., 2004. Harmful invasive species: legal responses. Environmental Law Institute, Washington, DC.. OYce of Technology Assessment (OTA), 1993. Harmful non-indigenous species in the United States. United States Government Printing OYce, Washington, DC. Tankersley, M., 1998. How the Electronic Freedom of Information Act Amendments of 1996 update public access for the information age. Admin. Law Rev. 50, 421–458.
Applying legal sunshine to the hidden regulation of biological control Marc L. Miller a,b,¤, Gregory H. Aplet c,1 a
b
School of Law, Emory University, Atlanta, GA, USA Rogers School of Law, University of Arizona, Tucson, AZ, USA c The Wilderness Society, Denver, CO, USA Received 28 July 2004; accepted 25 July 2005 Available online 6 September 2005
Abstract This article identiWes a serious legal gap in current United States Department of Agriculture (USDA) policy concerning decisions about the review and release of biological pest control agents. Currently, most of the critical documents and the quantitative evidence underlying USDA decisions and policy related to the petition, review, and release of biological pest control agents (biocontrols) for weeds are inaccessible. Current practices do not provide suYcient information for biologists or an informed public to understand or evaluate policy decisions and environmental outcomes. The USDA needs to comply with federal law by making all relevant documents and data available on the internet. Federal law and policy requires that the USDA release all relevant information, and make it readily accessible to all interested parties. Public disclosure of all relevant documents, along with the scientiWc evidence related to the review and release of biocontrols, is required by the Administrative Procedure Act, the Freedom of Information Act, the Federal Advisory Committee Act, the National Environmental Policy Act of 1970, and the Plant Protection Act of 2000. Disclosure of this information will impose at most a trivial Wnancial and administrative burden on the USDA Animal and Plant Health Inspection Service, or the Division of Plant Protection and Quarantine. The importance of full information and open debate in the pursuit of both scientiWc knowledge and sound environmental management far outweighs any administrative burden. 2005 Elsevier Inc. All rights reserved. Keywords: Biological controls; Government in the sunshine; Transparent government; Freedom of Information Act; FOIA; Technical Advisory Group; TAG; Animal and Plant Health Inspection Service; APHIS; United States Department of Agriculture; USDA; Review and release guidelines; Disclosure
In 1993, we published an article questioning why many invasion biologists did not treat the use of biological controls as another (intentionally) introduced species. We also highlighted the absence of clearly applicable federal and state legal authority governing the introduction and subsequent uses of biological control agents. See “Biological Controls: A Little Knowledge is a Dangerous Thing.” Rutgers L. Rev. 45, pp. 285–334 (1993). In January 2004, we were invited to provide further commentary on the intersection *
Corresponding author. Fax: +1 404 727 6820. E-mail addresses: [email protected] [email protected] (G.H. Aplet). 1 Fax: +1 303 650 5942.
(M.L.
Miller),
1049-9644/$ - see front matter 2005 Elsevier Inc. All rights reserved. doi:10.1016/j.biocontrol.2005.07.012
between the science, law and policy related to the introduction of biological control agents. This article presents the legal and policy foundations for that commentary.
1. Introduction Over the past 50 years the process for the review and release of biocontrols developed on an ad hoc basis with little explicit legislative guidance. While USDA/APHIS makes the formal decisions for release, the principal scientiWc input and judgments are made by a Technical Advisory Group for the Biological Control of Weeds (TAG), which has existed in some form since 1957.
M.L. Miller, G.H. Aplet / Biological Control 35 (2005) 358–365
Currently, a skeletal list of applications and Wnal decisions appears on the PPQ/TAG web site.2 The TAG web site provides a chart including, typically in a total of eight words or less, the TAG number, name of petitioner, scientiWc name of agent, scientiWc name of target, the TAG recommendation, and the APHIS action. This information does not satisfy the Department’s disclosure obligations under federal law,3 nor does it provide the scientiWc community the information it needs to evaluate the success of biocontrol eVorts. This article outlines USDA’s legal obligations to disclose information related to the review and release of biological controls, describes the particular documents and data that should be disclosed, and identiWes the important scientiWc and social goals that would be served by disclosure.
2. The duty to disclose under FOIA An array of statutes developed as part of the modern administrative state aim to reveal the nature of policymaking and adjudication by government agencies. The general legal framework for administrative decisionmaking is set out in the Administrative Procedure Act (see Aman and Mayton, 2001). The most important general statute setting out minimum standards of disclosure of public information is the Freedom of Information Act,4 widely known by its acronym FOIA. FOIA explicitly makes every record possessed by a federal agency disclosable to the public, unless it is speciWcally exempted from disclosure or excluded from the Act’s coverage.5 The United States Supreme Court has articulated a basic, two-part test for determining what constitutes “agency records” under FOIA: agency records are records that are: (1) created or obtained by an agency, and (2) under agency control at the time of the FOIA request.6 Any document not exempted and 2 http://www.aphis.usda.gov/ppq/permits/tag/petition.html (last accessed June 9, 2004). The TAG web site was revised as of January 1, 2005, based on arguments made in this article. Letter from Alan S. Green, Director, APHIS, PPQ, to Marc L. Miller (March 15, 2005). These revisions and remaining issues are discussed in a postscript to this article. 3 The text of any relevant Environmental Assessment (“EA”) or Finding of No SigniWcant Impact (“FONSI”) can be found in the Federal Register, as required by the National Environmental Policy Act of 1970, though no citations or links are made from the TAG web site or chart to those documents. Furthermore, these documents, as currently presented in the Federal Register, do not include or represent the entirety of the information and data used to justify the TAG decisions and recommendations. Only summaries, written speciWcally for the layman, are published in the Federal Register. QualiWed professionals outside the Federal Government have been denied access to the data used to substantiate the EA. This practice follows neither the intent nor the letter of the law. 4 5 USC § 552 (2003). 5 NLRB v. Sears, Roebuck & Co., 421 US 132, 136 (1975). 6 US Dep’t of Justice v. Tax Analysts, 492 US 136, 144–145 (1989).
359
produced or obtained by the federal agency is subject to public disclosure.7 That the records may be in an unorthodox format or contain complex scientiWc information does not except them from disclosure under FOIA.8 FOIA does not apply to entities that “are neither chartered by the federal government [n]or controlled by it;”9 however, TAG is both chartered by the federal government and controlled by it, since it is organized under federal agencies and is staVed by members of federal agencies. The TAG web site, which is part of the PPQ web site (and hence APHIS and hence USDA), states that TAG is an “independent voluntary committee” and explains that TAG “recommends to APHIS-PPQ that an agent be approved or denied permission for release.”10 The TAG web site states that: Today, TAG members review petitions for biological control of weeds and provide an exchange of views, information and advice to researchers and those in APHIS responsible for issuing permits for importation, testing, and Weld release of biological control agents of weeds.11 Currently, all but one member of TAG appear to be federal government employees, with the bulk of membership made up by USDA employees.12 The Executive Secretary of TAG is an employee of PPQ, TAG administration is conducted by PPQ, and the TAG web site (a part of USDA/APHIS/PPQ) and “reviewer’s manual” recognize the integral link between TAG and USDA/ APHIS.13 Further, the list of “TAG Petitions–APHIS Actions” conWrms what any participant or observer of
7 Under FOIA, records must be kept by federal agencies. Section 552 of Title 5, United States Code, says, “each agency, upon any request for records which (i) reasonably describes such records ƒ shall make the records promptly available to any person.” 5 USC §552(a)(3)(A) (2003). 8 The 1996 amendments to FOIA explicitly indicate that the term “record” and any other term used in FOIA in reference to information “include[s] any information that would be an agency record subject to the requirements of this section when maintained by an agency in any format, including an electronic format.” 5 USC § 552(f)(2). 9 US Dep’t of Justice, Justice Department Guide to the Freedom of Information Act (1992) (quoting H.R. Rep. No. 1380, 93d Cong., 2d Sess. 14 (1974)). 10 US Dep’t of Agric., Reviewer’s Manual for The Technical Advisory Group for Biological Control Agents of Weeds ([Hereinafter TAG Reviewer’s Manual]). TAG also explains that it “[serves] as a sciencebased link between the research community and regulatory agencies, providing input from stakeholders.” Id. 11 TAG website, at http://www.aphis.usda.gov/ppq/permits/tag/ (last visited July 26, 2004). 12 http://www.aphis.usda.gov/ppq/permits/tag/members.html (Dr. Dan Hilburn, Representing the National Plant Board, is an Administrator with the Plant Division of the Oregon Department of Agriculture, and does not appear to be a federal employee) (last accessed June 9, 2004). The members list also includes a Mexican and Canadian contact who are neither federal employees nor US citizens. 13 See TAG Reviewer’s Manual, supra note 9 at 2-1-2.
360
M.L. Miller, G.H. Aplet / Biological Control 35 (2005) 358–365
the biocontrol review process can conWrm: with very limited exceptions, what TAG proposes, APHIS does. If TAG is in fact an independent committee, then the legal path to disclosure of biological control data and documents might run through the Federal Advisory Committee Act (FACA). While we will discuss this possibility, we are convinced that whether TAG was ever an “independent” committee is purely an historical question. As currently constituted, FOIA is fully applicable to TAG and its recommendations and all of the supporting applications, documents, and data.
3. The inadequacy of current biocontrol review information Through the TAG web site, USDA currently makes only summary information available. As a matter of both law and good policy, it should also make available (1) all of the data and documents used as part of any request for importation, movement, or release of a biological control agent as soon as possible after submission; and (2) all data and documents used for all Environmental Assessments (EAs), Findings of No SigniWcant Impact (FONSI) decisions, Environmental Impact Statements (EISs), and decisions to import, move, test, release, or prevent release of a biological control agent prior to the publication of any proposed biological control action or decision in the Federal Register. SpeciWcally, the following documents should be made available automatically for public and professional review in one easily accessible location on the APHIS or PPQ web site on the internet: • Original Technical Advisory Group (“TAG”) petitions for importation, movement, testing, or release of biocontrol agents, including all supporting data; • Environmental Assessments, FONSIs, and Environmental Impact Statements currently published in the Federal Register, and the data upon which they are made; • Biological Assessments prepared in accordance with the Endangered Species Act of 1973, with all supporting data; • Memoranda explaining and the basis for and nature of the recommendations of TAG to APHIS; • Final decision documents produced by APHIS; • Follow-up reports and monitoring studies required by APHIS and TAG and submitted by the individuals or entities whose petitions for importation, introduction, testing, and release of biocontrol agents are approved. Disclosure, release, and publication of these records are obligations of all federal agencies and advisory com-
mittees involved in the review of petitions. Public access to these records is guaranteed by FOIA.14 Publication of relevant documents after a Wnal decision is made would be insuYcient as both a matter of fundamental principles of administrative law and as a matter of policy. One of the essential aspects of administrative process is that it allows participation—not just ex-post facto review—of government decision-making. Therefore, original TAG petitions for introduction of biological controls should be made available at the time they are submitted, and subsequent documents should be added and linked to the electronic Wles as they become available. Similarly, publication of relevant documents only for those biological control agents approved for introduction would fail minimal standards of administrative process. External reviewers must be able to assess the reasonableness of government decision-making both to approve and refuse private actions that may harm the environment. In addition, scientists can learn from prior refusals about agency concerns, and this should improve the quality and likelihood of success for subsequent proposed introductions. FOIA embraces nine exemptions to the requirement of public disclosure.15 We do not believe that any of these exemptions are relevant here. The most signiWcant exemption issue would be raised by exemption 5 of the Freedom of Information Act, which allows government agencies to withhold from disclosure “inter-agency or intra-agency memorandums [sic] or letters which would not be available by law to a party other than an agency in litigation with the agency.”16 None of the biological control documents or data that should be made public would be covered by common law attorney-client and work-product privileges.17 14 The changes in USDA, APHIS, PPQ, and TAG biological control policy that we propose, including the posting of data and documents now and in the future on the PPQ web site, and any rule requiring that such information be posted, would be exempt from the notice and comment process of section 553 of the Administrative Procedure Act. 15 5 USC § 552(b)(1–9) (2003). 16 See Southwest Center for Biological Diversity v. USDA, 170 F. Supp. 2d 931 (2000). 17 See Missouri ex rel Shorr v. US Army Corps of Engineers, 147 F.3d 708, 710 (8th Cir. 1998) (citing Assembly of State of Cal. v. US Department of Commerce, 968 F.2d 916, 920 (9th Cir. 1992)). Exemption 5 has been interpreted to apply to memoranda or letters that are part of the “deliberative process,” but this interpretation, as with all documents under exemption 5, is limited to documents that would normally be privileged in a civil litigation context. Id. The focus of the deliberative process privilege, which is encompassed by exemption 5, is “to allow agencies freely to explore alternative avenues of action and to engage in internal debates without fear of public scrutiny.” Id. The deliberative process privilege permits nondisclosure if the document is both “predecisional and deliberative.” Id. A predecisional document is one that assists agency decision-makers in making decisions, and that contains personal opinions of the writer, as opposed to the policies of the agency itself. Id. “A document is deliberative if its disclosure would expose the agency’s decision-making process in a way that would discourage candid discussion.” Id.
M.L. Miller, G.H. Aplet / Biological Control 35 (2005) 358–365
The documents and data we recommend be made public focus on the inputs and outputs of the decisions about biocontrols, not the internal workings of TAG or APHIS or the Fish and Wildlife Service (FWS) that lead to those outputs (i.e., only those data and documents sent to TAG as part of petitions for the importation, movement, and release of biological controls, and documents explaining the action or non-action in response to those petitions). Exemption 5 does not exempt any such data or documents. Indeed, we see no justiWcation at law for APHIS or TAG to continue to keep these documents from public view. These documents include scientiWc data and analyses formulated by proponents of new introductions, other non-governmental scientiWc evaluations, and formal evaluations by the Department of Agriculture and other relevant government agencies if the document is submitted to TAG, APHIS, PPQ, or any agency that is part of the APHIS biocontrol decision process.
4. FOIA requires agencies to post information on the internet FOIA was amended by the Electronic Freedom of Information Act Amendments of 1996 to require agencies to provide public access to documents and information using modern information technology.18 Congress found that “[g]overnment agencies increasingly use computers to conduct agency business and to store publicly valuable agency records and information; and ƒ [g]overnment agencies should use new technology to enhance public access to agency records and information.”19 Congress mandated that “[f]or records created on or after November 1, 1996, within 1 year after such date, each agency shall make such records available, including by computer telecommunications ƒ.”20 Moreover, Congress required that “[i]n making any record available to a person under this paragraph, an agency shall provide the record in any form or format requested by the person if the record is readily reproducible by the agency in that form or format.”21 All of the documents and data we identify are produced, maintained, and analyzed on computers and can easily be provided in electronic format. Some of these documents, such as Environmental Impact Statements where they apply, are especially long and complex, and would be vastly less expensive to distribute through the Internet (Gerrard and Herz, 2003). There have been less than 80 petitions for release in the past dozen years, according to the chart on the TAGAPHIS web site, placing the relevant documents for all 80 of these petitions on a web site would involve minimal 18 19 20 21
5 USC § 552(a)(2) (2003). See Pub. L. No. 104–231, 101 Stat. 2422, Sec. 2(a) (1996). 5 USC at §552(a)(2) (2003). 5 USC §552(a)(3)(B) (2003).
361
resources of any kind. Indeed, the numbers of petitions over the years appear to be suYciently low that it would be in the public interest to provide the full record of biocontrol proposals and judgments going back to 1957. Researchers would Wnd earlier records of great interest, since scientiWc follow-up work can and should be done for every introduction. Relevant follow-up studies include critical questions such as: Does the biological control agent still exist? What impact has the agent had on both target and non-target organisms and on ecosystem function over time? Such follow-up is, in fact, mandated by the TAG manual for the sound science required to evaluate both past releases and the probability of expected and unexpected consequences in proposed biocontrol releases. ConWdential reviewers of this article asked why we make such a legal fuss when a request under FOIA could provide the documents we seek. In other words, they ask why typical FOIA request processes are not suYcient to satisfy the concerns for public disclosure and participation in the biological control review process that this article describes. First, FOIA is a statute setting out the minimum requirements for government disclosure of information. Agencies are free to provide more information, or to provide information in a readily accessible format like the Internet that could be legally provided only to those who request the information. APHIS and biological control researchers should aspire to more than the legal minimum—in line with principles proposed by biological control researchers at major workshops (see, e.g., Coulson et al., 1991). Second, FOIA itself has been widely criticized for the massive barriers and delays involved with obtaining information. Congress has noted the persistent and frustrating delays from the FOIA process.22 No scientist could rely on FOIA to become an active participant in any biological control decision-making process. APHIS is not immune to the problem of delay in providing information. At the end of FY 2003 APHIS had 940 pending FOIA requests with 295 days as the median number of days the request had been pending, and over 467 days for complex requests.23 Only Rip Van Winkle would consider these kinds of delays acceptable for active participation in APHIS decision-making.
5. Alternative duty to disclose under FACA In the unlikely instance that a court were to Wnd that TAG is an independent body, such a court would likely 22 Sen. Rpt. 104–272 at 15–16 (May 15, 1996). Frustration with FOIA fueled enactment of the Electronic Freedom of Information Act Amendments in 1996. See also Halstuk (2001) and Tankersley (1998). 23 US Department of Agriculture Freedom of Information Act Annual Report FY 2003, http://www.usda.gov/news/foia/foia2003.htm (last accessed May 26, 2005).
362
M.L. Miller, G.H. Aplet / Biological Control 35 (2005) 358–365
hold that TAG is a “federal advisory committee” under the terms of the Federal Advisory Committee Act (“FACA”).24 FACA deWnes an “advisory committee” as: any committee, board, commission, council, conference, panel, task force, or other similar group, or any subcommittee or other subgroup thereof ƒ, which is (A) established by statute or reorganization plan, or (B) established or utilized by the President, or (C) established or utilized by one or more agencies, in the interest of obtaining advice or recommendations for the President or one or more agencies or oYcers of the Federal Government, except that such term excludes (i) any committee that is composed wholly of fulltime, or permanent part-time, oYcers or employees of the Federal Government.25 As previously noted, according to the TAG web site, TAG currently includes one non-federal employee. Thus, it appears that TAG would not qualify for exclusion as a committee composed “wholly” of federal government employees. If FACA applies to TAG, then TAG and USDA would face identical duties to allow public access to all records produced in the course of agency action. FACA makes advisory committees subject to the Administrative Procedure Act (APA), which in turn incorporates and supplements provisions of FOIA.26 Federal agencies cannot exempt their advisory committees from FACA, but Congress has the authority to do so.27 Congress has not exempted TAG or APHIS-PPQ from FACA.
regard to plant pests and weeds, noting that “the detection, control, eradication, suppression, prevention, or retardation of the spread of plant pests or noxious weeds is necessary for the protection of the agriculture, environment, and economy of the United States.”29 Congress noted that “the unregulated movement of plant pests, noxious weeds, plants, certain biological control organisms, plant products, and articles capable of harboring plant pests or noxious weeds could present an unacceptable risk of introducing or spreading plant pests or noxious weeds”30 and required that “decisions aVecting imports, exports, and interstate movement of products regulated under this title shall be based on sound science.”31 The PPA directed the Secretary of Agriculture not later than June 20, 2001 to “publish for public comment a notice describing the procedures and standards that govern the consideration of import requests (for proposed biological control agents).”32 On October 9, 2001—four months after the Congressional deadline— USDA/APHIS published proposed regulations for biocontrol proposals33 which substantially reproduced the TAG reviewer’s manual. The proposed regulations stated that “TAG’s conclusions regarding the host range of the candidate agent would Wgure prominently in our determination of whether or not the organism posed a risk of appreciably injuring or causing disease or damage in plants other than the target weed.”34 For reasons not disclosed in the Federal Register or on the USDA, APHIS, PPQ, or TAG web sites, no regulations were adopted in Wnal form. Perhaps USDA/ APHIS rejected the idea of simply adopting the TAG reviewer’s manual in light of the absence of full disclo-
6. Plant Protection Act of 2000 mandate 29
28
The Plant Protection Act of 2000 (PPA) provided the Wrst clear statutory recognition of the federal regulation of biological controls. In the PPA, Congress recognized the breadth of the problem of invasive species with 24 5 USC app. §§ 1–14 (2000). Supporting the view that TAG is a government agency within USDA, TAG, and APHIS-PPQ representatives have explained to non-federal scientists that FACA was the reason that n o academic, non-federal scientists are or can be included on TAG and why review by external scientists cannot be used as a routine part of the TAG review process. Personal communication from Svata Louda to Marc Miller, April 19, 2004. 25 5 USC app. I § 3(2) (2000). 26 5 USC §552(a)(3) (2003). 5 USC App. 2 § 10(b) provides: Subject to section 552 of title 5, United States Code, the records, reports, transcripts, minutes, appendixes, working papers, drafts, studies, agenda, or other documents which were made available to or prepared for or by each advisory committee shall be available for public inspection and copying at a single location in the oYces of the advisory committee or the agency to which the advisory committee reports until the advisory committee ceases to exist. 27 Sofamor Danek Group, Inc. v. Gaus, 61 F.3d 929 (D.C. Cir. 1995). 28 Pub. L. 106–224, (codiWed at 7 USC §7701 et. seq.).
7 USC §7701(1). 7 USC § 7701(7). 31 7 USC § 7701(4). 32 See 7 USC § 7712(d): Not later than 1 year after June 20, 2000, the Secretary shall publish for public comment a notice describing the procedures and standards that govern the consideration of import requests (for proposed biological control agents). The notice shall—(1) specify how public input will be sought in advance of and during the process of promulgating regulations necessitating a risk assessment to ensure a fully transparent and publicly accessible process; and (2) Include consideration of the following: (A) Public announcement of import requests that will necessitate a risk assessment. (B) A process for assigning major/nonroutine or minor/routine status to such requests based on current state of supporting scientiWc information. (C) A process for assigning priority to requests. (D) Guidelines for seeking relevant scientiWc and economic information in advance of initiating informal rulemaking. (E) Guidelines for ensuring availability and transparency of assumptions and uncertainties in the risk assessment process including applicable risk mitigation measures relied upon individually or as components of a system of mitigative measures proposed consistent with the purposes of this chapter. 33 Plant Pest Regulations, 66 Fed. Reg. 51,340–401 (Oct. 9, 2001) (7 C.F.R. pt. 300). 34 Plant Pest Regulations, 66 Fed. Reg. 51,346 (Oct. 9, 2001) (proposed “Requirements for the Interstate Movement of Regulated Organisms (§ 330.202)”) (7 C.F.R. pt. 330). 30
M.L. Miller, G.H. Aplet / Biological Control 35 (2005) 358–365
sure in the current process, or because of substantive concerns with the current TAG guidelines. For example, some biologists have explained in peer-reviewed journals that host range alone is insuYcient for a determination of the ecological range of proposed biocontrol agents (see Arnett and Louda, 2002; Louda et al., 2003a,b; Louda and O’Brien, 2002). Other biologists have noted the minimal review and low standards for applications for interstate movement of biocontrol agents. Moreover, once USDA (following the advice of TAG) approves the release of a biological control agent there are no subsequent federal limitations on where, when, or how many times that agent can be applied. Full disclosure of relevant documents and information about the current process would surely help to develop more sound procedures and principles over time. On a broader level, the entire TAG process focuses on the biological control of weeds, not on the biological control of insects and other targets (see generally Miller and Aplet, 1993). To their credit, many biological control researchers have recognized the need for better regulation and procedures for the review and release of all biological controls (Carruthers and PetroV, 1997). But scientiWc concerns with the current TAG guidelines would be a reason for revising the proposed regulations, not killing them altogether. We believe that, in line with Congressional direction in the PPA, USDA/APHIS should promulgate biological control regulations. We refer to the PPA here to emphasize the increasing legal and policy attention directed towards biological controls and the more general issues raised by the full range of harmful non-indigenous species. If biological control regulations are promulgated, they should include provisions for the complete release of data, documents, and analysis proposed in this article. Even if regulations are not promulgated, FOIA demands that the information and data underlying TAG assessment and judgments of the science underlying proposed releases and redistributions of nonindigenous organisms in the United States be made available to the public, including academic scientists with the expertise to evaluate, comment on, and provide constructive professional input for TAG evaluations of the science and for USDA-PPQ policy decisions. It is both frustrating to the scientiWc community and harmful to the collective good to preclude the public, including other scientists, from accessing all of these very important documents and data.
7. Additional grounds for release of biocontrol data In the highly unlikely event that a court considered TAG to be merely a research delegation sponsored by federal grants and not a true component of the federal government, our recommendations still have a basis in
363
federal law. The Omnibus Consolidated and Emergency Supplemental Appropriations Act for Fiscal Year 1999 makes research data generated through federal grants subject to FOIA.35 Senator Lott explained that this provision requires “[f]ederal awarding agencies to ensure that all research results, including underlying research data, funded by the Federal Government ƒ [that are] used by the Federal Government,” be made available through FOIA.36 The Conference Report adds, “[t]he provision applies to all federally funded research data ƒ ”37 The Act includes a provision that directs the OYce of Management and Budget to “require Federal awarding agencies to ensure that all data produced under an award will be made available to the public through the procedures established under the Freedom of Information Act.” At an absolute minimum, all TAG documents and supporting information are research data generated through federal funding from awarding agencies and are thus subject to FOIA. The Wnal revised version of this Act requires agencies to respond to FOIA requests for certain grantee research Wndings by obtaining the requested data from the grantee and processing it for release to the requester.38 Should the overarching agencies implausibly claim TAG records are not in their possession, they are nevertheless required to Wnd the records and make them available if those agencies used TAG input—which, of course, the TAG Guidelines explicitly assert. TAG is an institutional Wlter through which all petitions for release are channeled. TAG recommendations are the driver of the federal biocontrol review process, since the overarching agencies generally adopt TAG recommendations without adjustment. It is understandable that TAG recommendations be aVorded great weight by the overarching agencies since the matters petitioned for are highly technical and out of the scope of expertise of those agencies. But the fact that the overarching agencies do not appear to conduct extensive independent analysis or review emphasizes the importance of publicly revealing the underlying data, research, and analysis that were relied upon in making those determinations. 35 Omnibus Consolidated and Emergency Supplemental Appropriations Act, 1999 (P.L. 105–277, div. A, § 101(h)), 105th Cong., 2d Sess. (1998), 112 Stat. 2681 et seq., reprinted in 1999 USCCAN No. 11, at pp. 566–567. 36 144 Cong. Rec. S12134 (Oct. 9, 1998). 37 Id. 38 We believe that the USDA obligations to make biological control review and release information publicly available exist in the absence of any speciWc request for release of the data. However, along with several colleagues, we have made a formal request to the Secretary of Agriculture for release of the biological control information detailed in this article. See Letter to USDA Secretary Ann M. Veneman from Marc L. Miller, Svata M. Louda, Gregory H. Aplet, Ronald F. Wright, William Buzbee, Gwendolyn Phillips and Anna Makanju (July 12, 2004).
364
M.L. Miller, G.H. Aplet / Biological Control 35 (2005) 358–365
8. Our larger purposes: transparent government Let us conclude by emphasizing the larger purpose of our recommendations. While biocontrols are an important tool in the pest control arsenal, and have seen some signiWcant success stories over the years, each biocontrol introduction is also an introduction of another nonindigenous species, an issue of growing public concern. Neither the full beneWts nor the full harms from biological controls have been fully recognized by the scientiWc community, the legal and policy community, or the general public (see Miller and Aplet, 1993). Indeed, the larger issue of economic, ecological, and other harms from non-indigenous species, of which biocontrols are only one part, is itself only coming to be recognized as a deWning environmental issue (see Miller and Fabian, 2004; OTA, 1993). ScientiWc evaluation and wise policy require good information. At best, the current biocontrol review process might be described as shrouded in mystery; at worst, it appears designed to prevent scientiWc and policy debate of important public issues. It does not invite, and positively prevents, the active discourse and full implementation of the nation’s scientiWc expertise in facilitating the study and evaluation of proposed and approved biocontrol agents. Two hundred years ago, James Madison (1910) explained the danger of such a situation when he wrote: A popular government, without popular information, or the means for acquiring it, is but a Prologue to a Farce or a Tragedy; or perhaps both. Knowledge will forever govern ignorance: And a people who mean to be their own Governors, must arm themselves with the power which knowledge gives. We share Madison’s view of the importance of a government sharing basic knowledge and information with its citizens. Accordingly, we recommend, in line with a host of applicable legal authority, that APHIS, PPQ, and TAG immediately publish all documents and supporting data related to biocontrol proposals, review, and policy decisions on the Internet.
We share your view as to the desirability of transparent government. Therefore, to accommodate your request, we will now post to the Internet the Wnal drafts of petitions for the release of biological control agents received after January 1, 2005, that subsequently result in a release permit. These petitions will be posted at our Agency Web site at www.aphis.gov/ppq/permits/biological/weedbio.html. According to the letter from Director Green, APHIS has committed to provide links to environmental assessments, Wndings of no signiWcant impact, and environmental impact statements related to successful petitions for the release of biological control agents. This is a welcome start. However, as explained in this article, a full administrative process should include petitions for the release of biological control agents and associated documents produced during the review process. Posting proposals and documents as they are produced allows for public participation in the administrative decision-making process; ex-post publication of only Wnal drafts of petitions and related documents does not. Moreover, documents should be posted whether a release permit is granted or not so that scientists can assess the range of scientiWc and policy judgments made by APHIS, and so that scientists proposing releases can respond to agency concerns.
Acknowledgments We thank Svata M. Louda for detailed comments on this article. We also thank Bill Buzbee, Ron Wright, Wendy Phillips, Anna Makanju, for help with this article, and for work advice and co-authorship of the July 12, 2004, letter to United States Department of Agriculture Secretary Ann Veneman on which some of the arguments in this article are based. Additional assistance was provided by Robbie Foote, Emmet Ong, and Douglas Eingurt.
References 9. Postscript A letter presenting points similar to those in this article was sent to United States Department of Agriculture Secretary Ann Veneman in July 2004. Letter to USDA Secretary Ann M. Veneman from Marc L. Miller, Svata M. Louda, Gregory H. Aplet, Ronald F. Wright, William Buzbee, Gwendolyn Phillips and Anna Makanju (July 12, 2004). APHIS responded 8 months later. Letter from Alan S. Green, Director, APHIS, PPQ, to Marc L. Miller (March 15, 2005). According to APHIS, the TAG web site was revised as of January 1, 2005. Director Green wrote:
Aman, A., Mayton, W., 2001. Administrative law, second ed. West Group, New York. Arnett, A.E., Louda, S.M., 2002. Re-test of Rhinocyllus conicus host speciWcity, and the prediction of ecological risk in biological control. Biol. Conserv. 106, 251–257. Carruthers, R.I., PetroV, J.K., (Eds.), 1997. Proceedings of the invitational workshop on USDA activities in biological control—Riverdale, Maryland, and Washington, DC, October 8–11, 1996. U.S. Department of Agriculture, Agricultural Research Service, 1997– 2001. Coulson, J.R., Soper, R.S., Williams, D.W. (Eds.), 1991. Biological control quarantine: Needs and procedures, Proceedings of Workshop. U.S. Department of Agriculture, Agricultural Research Service, ARS-99, Washington, DC.
M.L. Miller, G.H. Aplet / Biological Control 35 (2005) 358–365 Gerrard, M., Herz, M., 2003. Harnessing information technology to improve the environmental impact review process. N. Y. Univer. Envtl. L. J. 12, 18–49. Halstuk, M., 2001. Speed bumps on the information superhighway: A study of federal agency compliance with the Electronic Freedom of Information Act of 1996. Commun. L. Policy 5, 423–468. Louda, S.M., Arnett, A.E., Rand, T.A., Russell, F.L., 2003a. Invasiveness of some biological control insects and adequacy of their ecological risk assessment and regulation. Conserv. Biol. 17, 73–82. Louda, S.M., O’Brien, C.W., 2002. Unexpected ecological impacts of redistributing the exotic weevil, Larinus planus (F.), for the biological control of Canada thistle. Conserv. Biol. 16, 717–727. Louda, S.M., Pemberton, R.W., Johnson, M.T., Follett, P.A., 2003b. Non-target eVects–the Achilles’ heel of biological control? Retro-
365
spective analyses to reduce risk associated with biocontrol introductions. Annu. Rev. Entomol. 48, 365–396. Madison, J., 1910. Letter from James Madison to W.T. Barry. In: Hunt, G. (Ed.), The Writings of James Madison, vol. 9. G.P. Putnam’s Sons, New York. Miller, M., Aplet, G., 1993. Biological control: a little knowledge is a dangerous thing. Rutgers Law Rev. 45, 285–334. Miller, M., Fabian, R., 2004. Harmful invasive species: legal responses. Environmental Law Institute, Washington, DC.. OYce of Technology Assessment (OTA), 1993. Harmful non-indigenous species in the United States. United States Government Printing OYce, Washington, DC. Tankersley, M., 1998. How the Electronic Freedom of Information Act Amendments of 1996 update public access for the information age. Admin. Law Rev. 50, 421–458.