Air Transport Association v. AGRI

United States Court of Appeals
FOR THE DISTRICT OF COLUMBIA CIRCUIT

Argued February 17, 2022 Decided June 21, 2022

No. 21-5118

AIR TRANSPORT ASSOCIATION OF AMERICA, INC., DOING
BUSINESS AS AIRLINES FOR AMERICA AND INTERNATIONAL AIR
TRANSPORT ASSOCIATION,
APPELLANTS

v.

UNITED STATES DEPARTMENT OF AGRICULTURE, ET AL.,
APPELLEES

Appeal from the United States District Court
for the District of Columbia
(No. 1:16-cv-00919)

Anton Metlitsky argued the cause for appellants. With him
on the briefs were Benjamin G. Bradshaw, Bradley N. Garcia,
and Anna O. Mohan.

Leif Overvold, Attorney, U.S. Department of Justice,
argued the cause for appellees. With him on the brief were
Brian M. Boynton, Acting Assistant Attorney General, and
Abby C. Wright, Attorney.
 2

Before: TATEL * and PILLARD, Circuit Judges; and
SENTELLE, Senior Circuit Judge.

Opinion for the Court filed by Senior Circuit Judge
SENTELLE.

SENTELLE, Senior Circuit Judge: Appellants brought an
action contesting a Department of Agriculture rulemaking in
the district court. There, Appellants argued that the rule
violated both the Food, Agriculture, Conservation, and Trade
Act of 1990, as well as the Administrative Procedure Act. The
district court granted summary judgment in favor of Appellees,
and Appellants have appealed that decision to this Court. For
the reasons stated herein, we affirm the district court’s
judgment in part, reverse it insofar as the challenged rule
authorizes collecting fees to fund a reserve after 2002, and
remand for proceedings consistent with this opinion.

I. Background

The Animal and Plant Health Inspection Service
(“APHIS”) is a federal agency, housed within the Department
of Agriculture, responsible for administering the Agricultural
Quarantine and Inspection Program (“Inspection Program”).
Whenever an international air, rail, truck, or maritime shipment
arrives at a United States port, APHIS may inspect the
shipment, vessel, and any passengers for foreign animal and
plant materials, pests, and diseases.

Originally, the Inspection Program was funded
exclusively through congressional appropriations, but in 1990,

*
Judge Tatel assumed senior status after this case was argued and
before the date of this opinion.
 3
Congress enacted the Food, Agricultural, Conservation, and
Trade Act (“FACT Act”) of 1990. Pub. L. No. 101-624,
§ 2509, 104 Stat. 3359 (1990) (current version at 21 U.S.C.
§ 136a (2020)). The FACT Act provided for the Inspection
Program to be, at least in part, funded by user fees rather than
by appropriations.

When first enacted, the FACT Act authorized the
Secretary of Agriculture to collect user fees for only one
purpose: “to cover the cost of providing agricultural quarantine
and inspection services . . . .” 21 U.S.C. § 136a(a)(1)(A)
(1990). Congress modified the Secretary’s authority to collect
fees in 1996. Pub. L. 104-127, Title IX, § 917, Apr. 4, 1996,
110 Stat. 1187. Since then, the statute has authorized the
Secretary to collect fees to cover three distinct costs. 21 U.S.C.
§ 136a(a)(1) (2020). First, the Secretary may collect fees
“sufficient to cover the cost of providing agricultural
quarantine and inspection services . . . .” § 136a(a)(1)(A).
Second, the Secretary may collect fees “to cover the cost of
administering this subsection.” § 136a(a)(1)(B). Third, the
Secretary, “through fiscal year 2002,” is authorized to collect
fees sufficient “to maintain a reasonable balance in the
Agricultural Quarantine Inspection User Fee Account . . . .”
§ 136a(a)(1)(C).

In setting these fees, APHIS must “ensure that the amount
of the fees is commensurate with the costs of agricultural
quarantine and inspection services with respect to the class of
persons or entities paying the fees.” § 136a(a)(2). “The costs of
the services with respect to passengers as a class includes the
costs of related inspections of the aircraft or other vehicle.” Id.

Between 2007 and 2012, APHIS received criticism from
the Inspectors General of the Departments of Homeland
Security and Agriculture as well as the Government
 4
Accountability Office that APHIS was not providing proper
justification for its fees. In response to this criticism, APHIS
retained Grant Thornton LLP, an audit, tax, and advisory firm,
to develop a model to better align fees with costs.

In a 2012 Report, Grant Thornton proposed new fee levels
for the various Inspection Program user classes. After
publishing a proposed rule in 2014, APHIS adopted its final
rule in 2015 increasing the Commercial Aircraft User Fee to
$225 for commercial flights and reducing the Commercial Air
Passenger Fee from $5 to $3.96. Notably, these fees were
calculated in a way to fund not only the costs of the inspections,
but also a reserve balance. In the Final Rule, eight user classes
were exempted from paying any inspection fees at all.

On May 13, 2016, the Air Transport Association of
America, Inc. and International Air Transport Association
(“Appellants”), two air carrier trade associations, filed suit
against the Department of Agriculture and its Secretary,
APHIS and its administrator, the Department of Homeland
Security and its Secretary, and Customs and Border Protection
and its Commissioner (collectively referred to as “Appellees”
or “APHIS”) in the district court contesting the Final Rule
under both the FACT Act and the Administrative Procedure
Act. In Count I, Appellants asserted that APHIS exceeded its
Authority under the Act and the APA by charging both a per-
passenger and a per-aircraft fee to fund inspections of a single
aircraft. In Count II, Appellants alleged that the Final Rule
violated the FACT Act by imposing incommensurately high
fees—the surplus from which allegedly cross-subsidized non-
fee-paying exempt user class inspections—and violated the
APA by failing to explain how the $225 Commercial Aircraft
User Fee was “commensurate” with inspection costs, or
necessary at all given the Commercial Air Passenger Fee. In
Count III, Appellants alleged that the Final Rule’s imposition
 5
of a reserve surcharge exceeded the authority granted to the
Secretary because the Act authorized a reserve charge until
only 2002. Finally, in Count IV, Appellants alleged that the
Final Rule violated the APA because APHIS withheld key
information during the rulemaking.

APHIS responded, asserting, among other things, that
despite the time limitation in 21 U.S.C. § 136a(a)(1)(C), it
retained the authority to collect fees to fund a reserve under that
subparagraph past fiscal year 2002. Ultimately, the district
court granted summary judgment on Counts I, II, and IV in
favor of Appellees. Air Transp. Assoc. of Am., Inc. v. United
States Dep’t of Agric., 303 F. Supp. 3d 28, 57 (D.D.C. 2018).
As for Count III, the district court held that due to the time
limitation, subparagraph (a)(1)(C) does not authorize APHIS
to collect fees to fund a reserve after fiscal year 2002 and
granted summary judgment on Count III in favor of Appellants.
Id. at 52. The district court then remanded the reserve surcharge
portion of the rulemaking for further consideration and possible
rulemaking by APHIS. Id. at 57.

On remand, APHIS issued a final interpretive rule insisting
that even if it no longer had the authority to collect a reserve
surcharge under § 136a(a)(1)(C), it retained the authority to
collect a reserve surcharge under §§ 136a(a)(1)(A), (B).
Appellants then amended their original complaint, challenging
APHIS’s new rationalization for collecting a reserve surcharge.
Ultimately, the district court granted summary judgment in
favor of Appellees, holding that subparagraphs (A) and (B)
support APHIS’s authority to collect a reserve surcharge
despite the expiration of the explicit authorization to do so in
subparagraph (C). Air Transport Assoc. of Am., Inc. v. Dep’t of
Agric., Case No. 1:16-cv-00919-PLF, 2021 WL 1166928, at
*14 (D.D.C. March 26, 2021). Appellants timely appealed the
district court’s decisions to this Court.
 6

We have jurisdiction over this appeal under 28 U.S.C.
§ 1291. We review the district court’s grant of summary
judgment de novo. AquAlliance v. United States Bureau of
Reclamation, 856 F.3d 101, 104 (D.C. Cir. 2017).

II. Analysis

Appellants contest four aspects of the Final Rule: (1) that
the collection of a reserve surcharge violates the FACT Act; (2)
that the Final Rule violates the FACT Act’s prohibition on
cross-subsidization; (3) that the Final Rule violates the FACT
Act and the APA by charging both a per-passenger and a per-
aircraft fee on one aircraft; and (4) that APHIS violated the
APA by withholding certain information during the rulemaking
process.

A. The Reserve Surcharge

In its 1996 amendments to the FACT Act, Congress
clarified when APHIS is permitted to collect user fees: (A) “to
cover the cost of providing agricultural quarantine and
inspection services”; (B) “to cover the cost of administering
this subsection”; and (C) “through fiscal year 2002, to maintain
a reasonable balance in the Agricultural Quarantine Inspection
User Fee Account . . . .” §§ 136a(a)(1)(A)-(C). Appellants’
argument regarding the reserve surcharge is quite simple: the
authority to collect fees sufficient to maintain a reserve in
§ 136a(a)(1)(C) expired after fiscal year 2002, and therefore
the Final Rule violates the FACT Act by continuing to do so.
APHIS would have us read § 136a(a)(1)(C) in conjunction with
§§ 136a(a)(5)-(6) to mean that between 1990 and 2002,
Congress explicitly authorized APHIS to collect fees to
maintain a reserve in the User Fee Account and that after 2002,
Congress authorized APHIS to collect fees to maintain a
 7
reserve in its own account by saying nothing at all. This blinks
reality. The text’s plain meaning and applicable canons of
statutory construction support Appellants’ reading of the
statute.

Appellants’ argument raises a question of statutory
interpretation. We review an agency’s interpretation of a
statute using the familiar Chevron framework. Chevron,
U.S.A., Inc. v. Natural Def. Council, Inc., 467 U.S. 837, 843–
44 (1984). In Step One of the Chevron analysis, we apply
ordinary tools of statutory construction to determine “whether
Congress has directly spoken to the precise question at issue.”
Merck & Co., Inc. v. United States Dep’t of Health & Human
Servs., 962 F.3d 531, 535 (D.C. Cir. 2020) (citation omitted).
Should we conclude that the statute does speak to the matter at
hand, our analysis ends there. However, if the statute is
ambiguous, we defer to an agency’s interpretation of the statute
so long as it is reasonable. Id. at 536.

In this case, the question at issue is whether the FACT Act
authorizes APHIS to collect a reserve surcharge after fiscal
year 2002. Appellants offer that Congress spoke to this issue in
§ 136a(a)(1)(C), where it stated that APHIS had the authority
to collect fees to maintain a reserve “through fiscal year 2002.”
APHIS counters that subparagraph (a)(1)(C) functioned
independently to specify the location for storing the reserve
surcharge—the “Agricultural Inspection User Fee Account”—
through 2002, rather than merely speaking to the authority to
collect fees. Therefore, APHIS argues that Congress only
limited the location for the surcharge funds after 2002 and not
the agency’s authority to collect them, and that we must defer
to its interpretation of the FACT Act so long as it is reasonable.

APHIS contends that the authority to continue collecting a
reserve fee after 2002 exists in subparagraphs (a)(1)(A)-(B)
 8
and that (a)(1)(C) is of no consequence now that fiscal year
2002 has come and gone. But this reading of the statute
conflicts with its plain meaning and violates the canon against
surplusage. “It is a familiar canon of statutory construction that,
‘if possible’, we are to construe a statute so as to give effect to
‘every clause and word.’” Amoco Production Co. v. Watson,
410 F.3d 722, 733 (D.C. Cir. 2005) (quoting United States v.
Menasche, 348 U.S. 528, 538–39 (1955)). Surplusage can
significantly weaken a Chevron Step One argument. See
N.L.R.B. v. Fed. Labor Relations Auth., 952 F.2d 523, 532
(D.C. Cir. 1992).

Per APHIS’s reading of the statute, its authority to collect
a fee to fund a reserve in its account is included in the authority
to collect fees covering the cost of providing services,
§ 136a(a)(1)(A), and “the cost of administering this
subsection,” § 136a(a)(1)(B). If we were to accept this reading,
then APHIS would have always had, and will always have, the
authority to collect fees to fund a reserve balance in its account
unless the statute is amended to say otherwise. Were this the
case, subparagraph (a)(1)(C), which explicitly limits APHIS’s
authority to collect fees to fund a reserve through fiscal year
2002, would be rendered meaningless.

APHIS’s argument that subparagraph (a)(1)(C) merely
specifies that the reserve will be housed in the Agricultural
Quarantine Inspection User Fee Account (“the User Fee
Account”) through fiscal year 2002 does not rescue it from this
death knell. Rather, §§ 136a(a)(5)-(6), which created and
regulated the User Fee Account, provide further support to our,
and therefore Appellants’, reading of subparagraph (a)(1)(C).
Subparagraph (a)(5) established the User Fee Account and
provides that its funds were to be used “to cover the costs
associated with the provision of agricultural quarantine and
inspection services and the administration of this subsection”
 9
through fiscal year 2002. § 136a(a)(5)(B). Subparagraph (a)(6)
provides that after fiscal year 2002, all remaining funds in the
User Fee Account were to be transferred to Department of
Agriculture accounts that incur the costs of running the
Inspection Program. § 136a(a)(6).

Congress spoke to the question of whether APHIS could
collect fees to fund a reserve in subparagraph (a)(1)(C). It
specified when APHIS was allowed to do so (through fiscal
year 2002) and where that reserve should be housed (the User
Fee Account). We will not read meaning into statutory silence
when Congress has demonstrated that it is perfectly capable of
delegating this authority to APHIS when it so chooses. Accord
D. Ginsberg & Sons v. Popkin, 285 U.S. 204, 208 (1932)
(“General language of a statutory provision, although broad
enough to include it, will not be held to apply to a matter
specifically dealt with in another part of the same enactment.”);
RadLAX Gateway Hotel, LLC v. Amalgamated Bank, 566 U.S.
639, 645 (2012).

Appellants’ reading of the statute is further supported by
the FACT Act’s revision history. When originally enacted, the
authority to collect fees to maintain a reasonable balance in the
User Fee Account did not include the “through fiscal year
2002” limitation. Pub. L. 101-624, Title XXV, § 2509, Nov.
28, 1990, 104 Stat. at 4069, 4071. The time limitation was
added to APHIS’s authority to collect fees for maintaining a
reserve in the 1996 amendments to the FACT Act. Pub. L. 104-
127, Title IX, § 917, Apr. 4, 1996, 110 Stat. at 1187. That the
time limitation was added to the statute after its original
enactment supports the idea that Congress meant to sunset the
authority it delegated to APHIS to collect fees to fund a reserve
after fiscal year 2002.
 10
Congress has directly addressed the question of whether
APHIS may continue to collect fees to fund a reserve after
fiscal year 2002. They may not do so. We will remand this case
to the district court for vacating insofar as the Final Rule
authorizes collecting fees to maintain a reserve account.
Appellants’ other arguments do not fare so well.

B. The Aircraft Fees

Under the Final Rule, it is possible for inspections of a
single aircraft to be funded by two different fees. The
Commercial Aircraft User Fee is charged to all arriving
international commercial aircraft with more than 64 seats. The
Commercial Air Passenger Fee is charged to passengers
arriving on international commercial aircraft. Commercial
aircraft are subject to the Commercial Aircraft User Fee
regardless of whether a particular flight is carrying cargo.

Appellants contend that charging both fees to the same
arriving aircraft violates the FACT Act’s requirement that
APHIS “ensure that the amount of [Inspection Program] fees is
commensurate with the costs of agricultural quarantine and
inspection services with respect to the class of persons or
entities paying the fees,” 21 U.S.C. § 136a(a)(2), because “[t]he
costs of the services with respect to passengers as a class
includes the costs of related inspections of the aircraft or other
vehicle,” id. APHIS argues that this challenge to the Final Rule
is time barred, as it comes more than “six years after the right
of action first accrue[d].” 28 U.S.C. § 2401(a). But since the
time bar is non-jurisdictional and does not change our
conclusion, we need not address it. See Jackson v. Modly, 949
F.3d 763, 778 (D.C. Cir. 2020) (“[W]e hold that § 2401(a)’s
time bar is nonjurisdictional and subject to equitable tolling.”).
Therefore, we proceed to the merits of this argument.
 11
1. The Costs of “Related” Inspections

Section 136a(a)(2) requires that APHIS “ensure that the
amount of [Inspection Program] fees is commensurate with the
costs of agricultural quarantine and inspection services with
respect to the class of persons or entities paying the fees.” 21
U.S.C. § 136a(a)(2). Further, “[t]he costs of the services with
respect to passengers as a class includes the costs of related
inspections of the aircraft or other vehicle.” Id.

Our review of agency statutory interpretation, like the
reserve fee issue above, is governed by the Chevron
framework. First, we look to whether Congress has directly
addressed the question at issue in the statute. If it has not, we
defer to an agency’s interpretation of the statute so long as it is
reasonable. Chevron, U.S.A., Inc. v. Natural Def. Council, Inc.,
467 U.S. 837, 843–44 (1984).

Appellants contend that Congress has spoken precisely to
the issue of whether a single aircraft may be subject to both
fees in the statute and that the analysis should conclude at
Chevron Step One. We agree that the analysis concludes at
Chevron Step One, but we disagree with Appellants’ ultimate
conclusion.

The construction of this statute hinges on the word
“related” in § 136a(a)(2)’s “[t]he costs of the services with
respect to passengers as a class includes the costs of related
inspections of the aircraft or other vehicle.” Appellants aver
that because the section requires that passengers be responsible
for the costs of “related inspections of the aircraft,” those
passengers are responsible for the costs of inspecting the entire
aircraft. But this reading of the statute would give no meaning
to the word “related” in the statute. Appellants’ reading would
not change if “related” were deleted from the statute.
 12

As above, we “construe a statute so as to give effect to
‘every clause and word.’” Amoco Production Co. v. Watson,
410 F.3d 722, 733 (D.C. Cir. 2005) (quoting United States v.
Menasche, 348 U.S. 528, 538–39 (1955)). We will not interpret
a statute to be read the same way regardless of whether a
substantive term is included in the reading. In this statute,
“related” performs an important narrowing function. “Related”
is defined as “[c]onnected by reason of an established or
discoverable relation,” Related, def. 1, Merriam-Webster’s
Unabridged Dictionary (2022), and “[c]onnected in some way;
having relationship to or with something else,” Related,
Black’s Law Dictionary (11th ed. 2019).

The inclusion of “related” in the statute clearly limits
which inspections commercial air passengers are responsible
for funding. This statute does not say that they are responsible
for the costs of the inspection of the entire aircraft; they are
responsible for the costs of inspections related to themselves
and their presence on the aircraft. This is further supported by
the use of the plural “inspections” in the statute. 21 U.S.C.
§ 136a(a)(2). Clearly, Congress contemplated that a single
aircraft could undergo multiple inspections and would not
necessarily be subject to one single inspection paid for by one
single user class. Congress has spoken to the question of
whether APHIS may charge different user classes for different
inspections of a single vehicle, and therefore our analysis of
whether the application of both fees violates the FACT Act
ends here. However, even if the statute were ambiguous,
APHIS’s interpretation of the statute is reasonable, and
Appellants’ challenge of the application of both fees would fail
at Chevron Step Two as well.
 13
2. The Application of Both Fees and the APA

Appellants further contend that the imposition of a
Commercial Aircraft User Fee on aircraft with passengers
paying a Commercial Air Passenger Fee is arbitrary and
capricious because the Grant Thornton analysis did not support
the imposition of both fees and APHIS failed to explain why it
deviated from this recommendation. We will hold an agency
action unlawful and set it aside when it is “arbitrary, capricious,
an abuse of discretion, or otherwise not in accordance with
law.” 5 U.S.C. § 706(2)(A). In rulemaking, an agency must
“examine the relevant data and articulate a satisfactory
explanation for its action including a ‘rational connection
between the facts found and the choice made.’” Motor Vehicle
Mfrs. Ass’n of the U.S., Inc. v. State Farm Mut. Auto Ins. Co.,
463 U.S. 29, 43 (1983) (quoting Burlington Truck Lines v.
United States, 371 U.S. 156, 168 (1962)).

a. The Grant Thornton Analysis

According to Appellants, APHIS acted arbitrarily and
capriciously because the reports prepared by Grant Thornton,
which were relied upon in establishing the Final Rule, assumed
that individual aircraft would be assessed only the Commercial
Air Passenger Fee if they carried passengers, and APHIS
neither acknowledged this nor explained why it rejected this
assumption in the Final Rule. However, no explanation was
necessary because Appellants misconstrue the Grant Thornton
reports. Appellants’ argument emphasizes statements
throughout the Grant Thornton reports that appear to indicate
that the Commercial Air Passenger Fee would cover the cost of
inspecting the entirety of the aircraft. JA 510; JA 373–74; JA
356. However, as argued by APHIS and found by the district
court, these statements and distinctions do not tell the entire
story. Grant Thornton’s calculations of fee amounts clearly
 14
presume that APHIS will continue funding inspections of
arriving aircraft by charging both the Commercial Aircraft
User Fee and the Commercial Air Passenger Fee. APHIS relied
on this methodology when promulgating the Final Rule.

The Final Rule bears this out. In both the Grant Thornton
documentation and the Final Rule, the Commercial Aircraft
User Fee was calculated by dividing the total costs of
inspecting Commercial Aircraft by the total number of
Commercial Aircraft (cargo-only and aircraft with passengers).
See JA 471–72 (Grant Thornton Model Documentation stating
that there were 139,798 cargo-only aircraft and 517,629
commercial aircraft in Fiscal Year 2010 totaling 657,427 total
aircraft); JA 244 (Final Rule listing costs and calculating the
Commercial Aircraft User Fee based on 657,427 aircraft in
Fiscal Year 2010). Had Grant Thornton included only the
139,798 cargo-only aircraft in its calculation of the
Commercial Aircraft User Fee, its proposed fee would have
been hundreds of dollars higher than the $225 fee it did
propose.

All of Appellants’ arguments regarding the dual
application of the Commercial Aircraft User Fee and the
Commercial Air Passenger Fee fail.

C. Cross-subsidization

Appellants further argue that the Final Rule violates the
FACT Act by permitting two forms of unlawful cross-
subsidization. First, Appellants claim that the Final Rule
overcharges certain user classes to pay for the inspections of
user classes that are exempt from being charged for
inspections. Second, Appellants contend that APHIS is
improperly comingling fees collected from various user classes
 15
into a single account that funds the inspections of all user
classes.

Appellants’ ground their cross-subsidization arguments in
the FACT Act’s “commensurate” requirement. Per the FACT
Act, APHIS must “ensure that the amount of the fees is
commensurate with the costs of agricultural quarantine and
inspection services with respect to the class of persons or
entities paying the fees.” 21 U.S.C. § 136a(a)(2). The district
court concluded that APHIS had not engaged in any “cross-
subsidization” that would violate this requirement. Air Transp.
Assoc. of Am., Inc. v. United States Dep’t of Agric., 303 F.
Supp. 3d 28, 52–54 (D.D.C. 2018). First, the court found no
violation where APHIS provided fee-exempt inspections to
certain user classes because those inspections were paid for by
appropriations. Id. at 52–53. Second, the court held that APHIS
could fund inspections for fee-paying user classes from an
account that comingled fees collected from multiple user
classes so long as “the fees charged” were commensurate to
costs because the FACT Act “instructs the Secretary on how to
set the fees, not how to use [them].” Id. at 53; see id. at 53–54.
Appellants challenge both of those conclusions, and APHIS
defends them.

There are eight user classes of the Inspection Program that
are exempt from paying any fees at all. These are private
vehicles, pedestrians, buses, private vessels, private aircraft,
military inspections, rail passengers, and passenger aircraft
with 64 or fewer seats. While all are subject to the same
inspections as other Inspection Program users, they are not
required to pay for the service. APHIS offers that the
inspections for these exempted user classes are funded through
congressional appropriations.
 16
Appellants have two overarching arguments about that
form of alleged cross-subsidization. First, Appellants aver that
any reliance on appropriations violates Congress’s intent that
the Inspection Program be self-funded through user fees rather
than through appropriations. Second, they argue that the record
does not support that any supposed appropriations cover the
costs of the inspections for exempted user classes. But these
arguments rely on a distorted interpretation of the FACT Act
and cannot succeed.

Appellants argue that the use of appropriations to fund
inspections of the exempt user classes is contrary to the FACT
Act because it prohibits the use of appropriations to fund the
Inspection Program. This is not the case. There is no language
in the Act that prohibits APHIS from funding parts of the
Inspection Program via appropriations. The FACT Act
provides that APHIS “may prescribe and collect fees . . . .” 21
U.S.C. § 136a(a)(1) (emphasis added). There is no requirement
in the FACT Act that APHIS actually do so, and therefore,
certainly no requirement that APHIS cover all of its costs
through user fees.

Further, the record demonstrates that no such cross-
subsidization is occurring. According to the record before us,
the cost of providing inspection services to the exempted user
classes makes up approximately 24% of all Inspection Program
costs. Appellant Opening Br. 47 (citing JA 17–18, 237). Per
APHIS’s Regulatory Impact & Final Regulatory Flexibility
Analysis, appropriations were expected to cover up to 30% of
total inspection costs. JA 149. Therefore, the funds received
through appropriations are more than sufficient to cover the
costs of inspecting the exempted user classes.

Appellants’ argument that APHIS may not comingle funds
collected from various user classes into a single account fails
 17
as well. The statute does not include any prohibition on funds
collected from one user class being used to fund inspections of
another fee-paying user class. The section containing the
“commensurate” language is a limitation on how much can be
collected in fees from a particular user class. It is not a
limitation on how those fees may be spent. Therefore,
Appellants’ argument that fees collected from multiple user
classes cannot be comingled in a fund that pays for the
inspections of fee-paying user classes fails because the FACT
Act does not prohibit this form of cross-subsidization. The
district court reached this same conclusion. Air Transp., 303 F.
Supp. 3d at 53–54.

D. The Withheld Information

Appellants’ final argument is that APHIS violated the
APA by relying on unreleased information. Specifically,
Appellants contend that APHIS violated the APA by
withholding underlying Grant Thornton fee model
documentation that was central to its analysis and the Final
Rule.

The APA requires that “interested persons” have “an
opportunity to participate in the rule making through
submission of written data, views, or arguments with or
without opportunity for oral presentation.” 5 U.S.C. § 553(c).
We have interpreted this requirement to mean that an agency
must make “at least the most critical factual material that is
used to support the agency’s position on review” public.
Association of Data Processing Serv. Orgs., Inc. v. Board of
Governors of the Fed. Reserve Sys., 745 F.2d 677, 684 (D.C.
Cir. 1984). “[A]n agency cannot rest a rule on data that, in
critical degree, is known only to the agency.” Time Warner
Entm’t Co. v. FCC, 240 F.3d 1126, 1140 (D.C. Cir. 2001). To
succeed on this argument, Appellants must demonstrate that
 18
they were prejudiced by the withholding of this data. They do
not need to prove that their comments would have changed the
terms of the Final Rule, only that they “had something useful
to say about this critical data.” Chamber of Commerce v. SEC,
443 F.3d 890, 905 (D.C. Cir. 2006). But if Appellants cannot
produce “substantive challenges which differ in kind from the
original comments,” then no harm has occurred. Florida Power
& Light Co. v. United States, 846 F.2d 765, 772 (D.C. Cir.
1988).

Appellants contend that they were denied a meaningful
chance to comment on the rulemaking because APHIS did not
release the underlying Grant Thornton fee model
documentation, JA 304–496, and cost output data, AR 656–
69780, before promulgating the Final Rule. According to
Appellants, this additional information would have further
supported their position that Grant Thornton did include the
costs of inspecting the entire aircraft in its calculation of the
Commercial Air Passenger Fee, which we held not to be the
case above.

In this case, after receiving the withheld information,
Appellants have provided no arguments substantively different
from their original arguments. Appellants argue that they
would have been able to further support their arguments that
APHIS violated the APA in the Final Rule by applying the
Commercial Aircraft User Fee and the Commercial Air
Passenger fee to arriving passenger aircraft. But Appellants
point to the information that they were denied only once in their
brief. Appellant Br. 42. Appellants use this information merely
to provide additional support for their argument that Grant
Thornton always intended for the Commercial Air Passenger
Fee to cover the costs of inspecting the entire aircraft. This is
not substantively different than the arguments made prior to
their receipt of this information.
 19

Appellants have not shown a harm from the withholding
of this data. Therefore, the failure to release the requested data
prior to the promulgation of the Final Rule did not violate the
APA.

III. Conclusion

For the reasons stated above, we affirm the district court’s
judgment in part, reverse it insofar as the challenged rule
authorizes collecting fees to fund a reserve after 2002, and
remand for proceedings consistent with this opinion.