[Federal Register Volume 88, Number 154 (Friday, August 11, 2023)]
[Proposed Rules]
[Pages 54796-54827]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2023-17045]
[[Page 54795]]
Vol. 88
Friday,
No. 154
August 11, 2023
Part III
Department of Agriculture
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Animal and Plant Health Inspection Service
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7 CFR Part 354
User Fees for Agricultural Quarantine and Inspection Services; Proposed
Rules
Federal Register / Vol. 88, No. 154 / Friday, August 11, 2023 /
Proposed Rules
[[Page 54796]]
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DEPARTMENT OF AGRICULTURE
Animal and Plant Health Inspection Service
7 CFR Part 354
[Docket No. APHIS-2022-0023]
RIN 0579-AE71
User Fees for Agricultural Quarantine and Inspection Services
AGENCY: Animal and Plant Health Inspection Service, USDA.
ACTION: Proposed rule.
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SUMMARY: We are proposing to update and amend the user fee regulations
associated with the agricultural quarantine and inspection (AQI)
program. Specifically, we propose to adjust the fees for certain AQI
services that are provided in connection with certain commercial
vessels, commercial trucks, commercial railroad cars, commercial
aircraft, and international passengers arriving at ports in the customs
territory of the United States; adjust the caps on prepaid fees
associated with commercial trucks and commercial railroad cars; remove
certain fee exemptions that are no longer justifiable based upon
pathway analyses of risk; and restructure the treatment monitoring fee.
We would also revise requirements pertaining to remittances and
statements. Specifically, we would require monthly rather than
quarterly remittances for the commercial aircraft fee, international
air passenger fee, and international cruise passenger fee to make our
revenue stream more stable, clarify our requirements, and provide for
electronic payments and statements. We would also include in the
regulations information on agents responsible for ensuring compliance
with paying the user fees and the requirement for entities to notify
APHIS in the event they have a change in personnel responsible for fee
payments. These proposed changes are necessary to recover the costs of
the current level of AQI activity, to account for actual and projected
increases in the cost of doing business, to increase fee payer
accountability, and to more accurately align fees with the costs
associated with each fee service.
DATES: We will consider all comments that we receive on or before
October 10, 2023.
ADDRESSES: You may submit comments by either of the following methods:
Federal eRulemaking Portal: Go to www.regulations.gov.
Enter APHIS-2022-0023 in the Search field. Select the Documents tab,
then select the Comment button in the list of documents.
Postal Mail/Commercial Delivery: Send your comment to
Docket No. APHIS-2022-0023, Regulatory Analysis and Development, PPD,
APHIS, Station 3A-03.8, 4700 River Road Unit 118, Riverdale, MD 20737-
1238.
Supporting documents and any comments we receive on this docket may
be viewed at Regulations.gov in our reading room, which is located in
room 1620 of the USDA South Building, 14th Street and Independence
Avenue SW, Washington, DC. Normal reading room hours are 8 a.m. to 4:30
p.m., Monday through Friday, except holidays. To be sure someone is
there to help you, please call (202) 799-7039 before coming.
FOR FURTHER INFORMATION CONTACT: Mr. George Balady, Senior Regulatory
Policy Specialist, PPQ, APHIS, 4700 River Road Unit 36, Riverdale, MD
20737; (301) 851-2338; [email protected].
SUPPLEMENTARY INFORMATION:
Table of Contents
Legal Authority and Overview of Program Activities
Need for the Proposed Rule
Updates to the ABC Model and Cost Calculations
Court Ruling on Reserve Surcharge
Proposed User Fee Amounts and Justifications
Proposed Regulatory Changes
[cir] Revisions to Regulatory Definitions
[cir] Commercial Vessels
[cir] Commercial Trucks
[cir] Commercial Railroad Cars
[cir] Commercial Aircraft
[cir] International Passengers Arriving at Airports and Seaports
[cir] AQI Treatment Monitoring
[ssquf] Change From a per-Treatment Basis to an Hourly Basis
[ssquf] Applying the Treatment Monitoring Fee to All Treatment
Types and Treatment-Related Activities
[ssquf] Applying Overtime to Treatment Monitoring Performed Outside
of Regular Business Hours
[ssquf] Changes to Treatment Monitoring Fee Designation of
Responsible Parties and Remittance Procedures
Technical amendments
Records Retention
Severability
Executive Orders 12866 and 13563, and Regulatory Flexibility
Act
[cir] Air Passengers
[cir] Commercial Aircraft
[cir] Small aircraft Exemption
[cir] Commercial Cargo Vessel
[cir] Canadian Barge Exemption
[cir] Commercial Truck
[cir] Commercial Cargo Railroad Car
[cir] Cruise Vessel Passenger
[cir] Treatment Monitoring
Executive Order 12988
Executive Order 13175
Paperwork Reduction Act
E-Government Act Compliance
Legal Authority and Overview of Program Activities
Background
Section 2509(a) of the Food, Agriculture, Conservation, and Trade
(FACT) Act of 1990 (21 U.S.C. 136a) authorizes the Animal and Plant
Health Inspection Service (APHIS) to prescribe and collect user fees
for agricultural quarantine and inspection (AQI) services. Congress
amended the FACT Act on April 4, 1996, and May 13, 2002.
The FACT Act, as amended, authorizes APHIS to collect user fees for
AQI services provided in connection with the arrival, at a port in the
customs territory of the United States, of certain commercial vessels,
commercial trucks, commercial railroad cars, commercial aircraft, and
international passengers. According to the FACT Act, as amended, these
user fees should be ``sufficient'' ``to cover the cost of'':
Providing AQI services ``in connection with the arrival at
a port in the customs territory of the United States'' of the
conveyances and the passengers listed above;
Providing ``preclearance or preinspection at a site
outside the customs territory of the United States'' to the conveyances
and the passengers listed above; and
Administering 21 U.S.C. 136a, concerning the ``collection of fees
for inspection services.''
In addition, the FACT Act, as amended, contains the following
requirements:
The amount of the fees shall be ``commensurate with the
costs of [AQI] services with respect to the class of persons or
entities paying the fees.''
The cost of AQI services ``with respect to passengers as a
class'' shall ``include the cost of related inspections of the aircraft
or other vehicle.''
The user fees for the AQI activities described above are contained
in 7 CFR 354.3, ``User fees for certain international services.''
APHIS' regulations regarding user fees relating to imports and exports,
as well as overtime services, are found in 7 CFR part 354.
AQI services funded by these user fees and covered in the
regulations in part 354 include inspections of arriving commercial
maritime vessels, commercial trucks, commercial railroad
[[Page 54797]]
cars, commercial aircraft, international air passengers, and
international sea (cruise) passengers; as well as monitoring
phytosanitary treatment and treatment-related activities. Services
related to conveyances and cargo include issuance of import permits,
review of manifests and other documentation, as well as inspections of
the cargo, conveyances, and packaging material for prohibited imports
and contaminants, pests, or invasive species. Passenger services
include prescreening and inspection of passenger baggage and personal
belongings for prohibited agricultural imports. We also charge a user
fee for monitoring prescribed treatments that are performed on some
agricultural goods as a condition of entry or when a pest of quarantine
significance (i.e., a plant pest that should not be allowed to be
introduced into or disseminated within the United States) is detected
during a port-of-entry inspection.
APHIS and the Department of Homeland Security's (DHS) U.S. Customs
and Border Protection (CBP) work together to carry out these AQI
program activities and thereby protect U.S. agriculture and natural
resources by intercepting foreign animal and plant pests and diseases
(such as African swine fever or ASF, foot and mouth disease, exotic
fruit flies, and Ralstonia race 3 biovar 2) before they can enter the
country. APHIS and CBP perform different functions that complement each
other. For example, CBP's AQI activities include inspecting passengers,
passenger baggage, personal belongings, conveyances, shipments, and
monitoring regulatory compliance at United States ports of entry; CBP
also preclears passengers at certain ports of departure outside the
United States. APHIS performs pest identification for shipments across
all modes (air cargo, maritime cargo, truck cargo, etc.), inspection of
plants for planting shipments, and monitoring of phytosanitary
treatments and related activities. CBP's agricultural inspection and
safeguarding activities generate the majority of AQI costs covered by
the fees, approximately 70 percent of program costs per year. Pursuant
to Sec. 354.3, APHIS collects AQI user fees for commercial railroad
cars, commercial aircraft, international air and cruise (sea)
passengers, and treatment monitoring directly. Also pursuant to Sec.
354.3, CBP collects AQI user fees for commercial vessels, commercial
trucks, and commercial truck transponders on APHIS' behalf, and then
transfers the funds to APHIS. APHIS periodically transfers that portion
of the funds allocated for CBP in accordance with Sec. 421 of the
Homeland Security Act of 2002 (6 U.S.C. 231 and the Memorandum of
Agreement effectuating the transfer of functions.\1\)
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\1\ The Memorandum of Agreement can be viewed on the APHIS
website at https://www.aphis.usda.gov/aphis/ourfocus/planthealth/import-information/moa.
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Inspection of commercial aircraft and their passengers account for
the preponderance of fees remitted. In fiscal year (FY) 2017 to FY
2019, commercial aircraft collections averaged over 23 percent of total
collections annually, or nearly $188M. Also, from FY 2017 to FY 2019,
commercial aircraft passenger collections averaged over 61 percent of
total collections annually, or nearly $486M. Collections from the air
sector (commercial aircraft and commercial air passenger) are a
combined annual average of over 85 percent of total AQI collections. If
this rule is adopted as proposed, APHIS estimates that by FY 2028 the
combined air sector would account for approximately 68 percent of total
collections, assuming future arrivals match average arrivals for FY
2017 through FY 2019. (For this reason, we propose a change in air
collections to be monthly rather than quarterly, as discussed below.)
Need for the Proposed Rule
In a final rule published in the Federal Register on October 29,
2015 (80 FR 66748-66779, Docket No. APHIS-2013-0021),\2\ we updated and
amended the user fee regulations in Sec. 354.3 to improve AQI service
cost recovery and to more accurately align fees with the costs
associated with each fee service. Significant changes included the
following:
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\2\ To view the final rule, go to www.regulations.gov and enter
APHIS-2013-0021 in the Search field.
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Adding new fee categories for international cruise
passengers and monitoring of phytosanitary treatments;
Adjusting existing fees charged for certain agricultural
quarantine and inspection services that are provided in connection with
certain commercial vessels, commercial trucks, commercial railroad
cars, commercial aircraft, and international air passengers arriving at
ports in the customs territory of the United States; and
Adjusting the user fee cap associated with commercial
trucks and adjusting or removing the user fee cap associated with
commercial railroad cars.
For FYs 2017 through 2019, the AQI program ran an average deficit
of over $166 million annually. For a number of reasons, as discussed
below, the fees established in the 2015 rulemaking, which were based on
cost data from FY 2010 through FY 2012, no longer reflect actual
program costs. This proposed rule uses cost data from FY 2017 through
FY 2019 because these years reflect costs from the most recent period
of normal (pre-pandemic) operations, and most closely approximate the
costs in a return to normal operations (post-pandemic) AQI program
environment.
For the 2015 rulemaking, APHIS used an Activity-Based Costing (ABC)
Model to analyze the costs associated with the program. ABC is a cost
accounting method used to calculate the total costs of a service or
product. It differs from Financial Accounting, which is the preparation
of financial reports for stakeholders or users who are interested in
the financial position of an agency or program. ABC translates costs
from ``what we pay for'' to ``what we do.'' This process entails
assigning both direct and indirect costs to an activity (such as
managing the import permitting process), associating those activities
with outputs (such as a Maritime Cargo Inspection), and using the cost
of outputs to calculate fee levels (such as the Commercial Vessel Fee)
for specific user classes.
In developing this proposed rule, we re-examined the ABC Model cost
allocations to ensure costs accurately reflect workload. We ensured
that all costs flow through the model, that the relationships between
objects in the model were accurate, and that the allocation of costs
followed standard cost accounting methodologies. The re-examination
also revealed that the 2015 model is not forward looking; that is, it
does not factor in costs required to address new program and staffing
needs. Emerging issues that are not accounted for in the 2015 model
include the need for additional inspection resources at ports of entry
to mitigate emerging risks,\3\ such as ASF at airports, the expanding
demand for treatment monitoring services, such as monitoring
[[Page 54798]]
the restacking of cargo in overloaded cargo containers, and capital
planning. In developing the model for this proposed rule, the 2023
full-time equivalent (FTE) model, APHIS incorporated cost objects for
additional staffing to address these workload increases, and additional
program costs related to capital planning: New and upgraded facilities,
new equipment, and outreach. This proposed rule would adjust AQI user
fees to reflect the updates and additions to the cost model including
updated cost data, changes in cost allocation methodology, additional
personnel to address emerging risks, and capital planning costs.
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\3\ For example, on July 28, 2021, the Dominican Republic
informed APHIS that samples obtained from swine in the country had
tested positive for ASF, a highly contagious disease of wild and
domestic swine that can spread rapidly in swine populations with
extremely high rates of morbidity and mortality. Subsequently, on
September 20 of that year, the Chief Veterinary Officer in Haiti
reported a positive case of ASF to the World Organization for Animal
Health (WOAH). Because of Hispaniola's proximity to Puerto Rico and
the U.S. Virgin Islands, and the frequency of trade in pork and pork
products between Hispaniola and these territories, APHIS enhanced
monitoring and surveillance activities for ASF in Puerto Rico and
the U.S. Virgin Islands as a result of these detections, and
submitted a dossier to WOAH to finalize a new ASF protection zone in
Puerto Rico and the U.S. Virgin Islands.
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Further, due to its retrospective nature, ABC modeling fails to
account adequately for inflation unless inflation factors are applied
to it. For example, the 2015 rulemaking used source data from FY 2010
through FY 2012 adjusted to FY 2016 dollars [80 FR 66753]; however, no
adjustment was made for inflation beyond the beginning of FY 2016
(October 2015). As a result, the 2015 fee rates using FY 2016 dollars
are still in effect after 7 years (FY 2023), meaning, as of September
2022 (the end of FY 2022 for APHIS), the fees are approximately 24.79
percent \4\ below the levels necessary to meet today's costs based on
inflation alone. As discussed in the regulatory impact analysis (RIA)
accompanying this proposed rule,\5\ we determined that costs would be
more accurately recovered if the ABC Model cost data were adjusted for
inflation based on the Chained Consumer Price Index for all Urban
Consumers (C-CPI-U).
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\4\ https://www.bls.gov/data/inflation_calculator.htm using the
period October 2015 to September 2022.
\5\ To view these and other supporting documents, go to
www.regulations.gov and enter APHIS-2022-0023 in the Search field.
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Our ability to recover the full costs of administering the AQI
program has also been limited by exemptions and fee caps. Under the
existing regulations, commercial aircraft with 64 or fewer seats
meeting certain conditions have been exempted from the fees listed in
Sec. 354.3(e), and barges operating between the United States and
Canada meeting certain conditions have been exempted from those listed
in Sec. 354.3(b). The original basis for both of these exemptions, as
discussed in earlier rulemakings, was that they posed little or no
sanitary/phytosanitary risk, and therefore did not require inspection
and would not incur costs to the program (see 58 FR 14305-14307, Docket
No. 92-088-2 \6\ and 75 FR 10634-10644, Docket No. APHIS-2006-0096
\7\). However, recent findings from two APHIS pathway analyses
(``Pathway Analysis for Commercial Aircraft with 64 or Fewer Seats''
and ``Pathway Analysis for Barges from Canada''),\8\ indicate that
today commercial aircraft with 64 or fewer seats do serve as a pathway
for the introduction of quarantine pests, and that barges from Canada
that meet the current user fee exemption do not pose less of a
phytosanitary risk than barges travelling from other countries or other
vessel types travelling from Canada. The analyses accordingly conclude
that both such aircrafts and such barges merit inspection that incurs
AQI program costs. We discuss the analyses at greater length later in
this document, under the headings ``Commercial Aircraft'' and
``Commercial Vessels.''
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\6\ FR-1993-03-17.pdf (govinfo.gov), published in the Federal
Register on May 24, 1995.
\7\ To view the rule, the supporting documents, and the comments
we received, go to www.regulations.gov and enter APHIS-2006-0096 in
the Search field.
\8\ These analyses are available with this proposed rule. See
footnote 5 for instructions on how to view these and other
supporting documents on Regulations.gov.
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Fee caps for commercial trucks and railroad car user fees have also
limited our ability to cover costs. Under current Sec. 354.3(c)(3)(i)
and (d)(3)(i), respectively, operators of commercial trucks and
commercial railroad cars have the option to prepay AQI user fees for a
calendar year. A prepayment equivalent to 40 times an individual
crossing allows a commercial truck to make an unlimited number of
crossings in a calendar year. For commercial railroad cars, the
prepayment amount for unlimited crossings in a calendar year is capped
at 20 times the fee for an individual crossing. We have determined that
these prepayment multiples should be increased, as they are no longer
sufficient to recover program costs and fail to account for increased
usage of transponders and prepayment options.\9\ This determination is
discussed at length below, under the section heading labeled
``Commercial Trucks.''
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\9\ See supporting document ``Analysis of AQI User Fees: Truck
Transponder and Prepaid Railroad Car Multiples Using Fee Collections
and Arrival Data.'' See footnote 5 for instructions on how to view
this and other supporting documents on Regulations.gov.
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Without adequate funding, the AQI program is likely to fail to keep
pace with growing demand and become less effective, leading to more
frequent and severe agricultural pest and disease outbreaks in the
United States. Such outbreaks can be costly. To cite one example, APHIS
has spent more than $1.3 billion on the eradication and quarantine of
wood, tree, and forest pests such as Asian Longhorn Beetle, Emerald Ash
Borer, and Spotted Lantern Fly to protect U.S. forests and the U.S.
forest products industry valued at more than $350 billion in
manufacturing production annually.\10\ Additionally, such outbreaks may
cause declines in U.S. domestic production of agricultural products
(according to the Census of Agriculture 2017, the market value of U.S.
agricultural products sold was $388.5 billion \11\) and harm natural
resources. Trading partners may question the sanitary/phytosanitary
integrity of U.S. agricultural products, which would either reduce the
demand for or value of U.S. agricultural exports, which were valued at
$196.4 billion in fiscal year 2022.\12\ Further, inadequate funding
would prevent the AQI program from being able to adapt to meet emerging
program needs as discussed above, resulting in additional challenges in
effectively clearing cargo and passengers and mitigating the risk of
costly pest and disease outbreaks impacting U.S. agricultural
production and exports, and natural resources. The AQI program makes
the safe importation of agricultural commodities possible. Such imports
accounted for $194.0 billion in economic activity in FY 2021.\13\
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\10\ https://www.afandpa.org/statistics-resources/our-economic-impact.
\11\ https://www.nass.usda.gov/Publications/AgCensus/2017/Full_Report/Volume_1,_Chapter_1_US/usv1.pdf, pg. 17.
\12\ https://www.ers.usda.gov/webdocs/outlooks/105919/aes-123.pdf?v=5132.7.
\13\ Ibid.
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We are therefore proposing to update and amend the user fee
regulations to align the fees with the current needs of the AQI
program. Specifically, we propose to adjust the fees for certain AQI
services that are provided in connection with certain commercial
vessels, commercial trucks, commercial railroad cars, commercial
aircraft, and international air and sea passengers arriving at ports in
the customs territory of the United States; adjust prepaid fee caps
associated with commercial trucks and commercial railroad cars; remove
certain fee exemptions that are no longer justifiable; and restructure
the treatment monitoring fee. We would also revise the payment sections
in order to recover the full cost of providing these AQI services,
commensurate with the class of persons or entities paying the fees.
Updates to the ABC Model and Cost Calculations
In updating our cost modeling, APHIS contracted in 2021 with the
accounting
[[Page 54799]]
firm Grant Thornton \14\ to review the data and the methodology in the
ABC Model. Grant Thornton's assessment of the APHIS AQI model included
a thorough review of every cost object, driver, assignment, and value.
APHIS prepared two different versions of the ABC Model, using APHIS and
CBP data sources, and Grant Thornton compared them. One version of the
model used the cost allocation methodology from the 2015 rulemaking
(direct trace and number of/workload), and the second used the proposed
cost allocation methodology (direct trace, number of/workload, full-
time equivalent (FTE) hours) for comparison purposes. The intent was to
identify and resolve any inconsistencies between versions and compare
the impact of the two different methodologies on cost allocation, as
discussed further below.
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\14\ Since completion of the assessment, Grant Thornton's
government division has moved to Guidehouse Federal. However, to
reflect the firm's name at the time the assessment was completed, we
use the name ``Grant Thornton'' throughout this document when
referring to the work.
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As a result of its review, Grant Thornton recommended options to
more accurately allocate costs based on the activity and the
output.\15\ In the 2015 rulemaking, APHIS used two methods for
allocating costs: Direct trace, which directly assigns costs to
outputs; and ``number of'' (or workload), which allocated costs based
upon the number of inspection units (a passenger, a vessel, an
aircraft, etc.). Grant Thornton recommended that APHIS add a third
allocation method for allocating certain costs: FTE hours spent
conducting an output (i.e., such as an inspection). As noted above,
APHIS prepared two versions of the model for each of the three base
years--one using the methodology from the 2015 rulemaking (direct trace
and number of/workload) and one using the proposed methodology (direct
trace, number of/workload, FTE hours) for comparison purposes. As part
of the comparison, Grant Thornton reviewed the underlying CBP FTE
allocation methodology and provided recommended changes for CBP support
activities (supervision, data entry, etc.) that should be allocated
across the direct AQI activities. APHIS reviewed and accepted the
recommendations and incorporated those changes into a new FTE data
source file and the AQI cost models. Concurring with Grant Thornton's
recommendation, APHIS is employing the model with the new methodology
(direct trace, number of/workload, FTE hours) for this rulemaking.
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\15\ See supporting document ``Grant Thornton United States
Dpartment of Agriculture Animal and Plant Health Inspection Service
Services to Validate Agency's Activity-Based Cost Model for AQI User
Fees: Recommendations Report.'' See footnote 5 for instructions on
how to view this and other supporting documents on Regulations.gov.
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Several agencies charge user fees under a variety of authorities,
and use different methodologies to meet their statutory mandates. For
example, CBP's Consolidated Omnibus Budget Reconciliation Act of 1985
(COBRA) fees are set as prescribed by statute with adjustments for
inflation.16 17 The U.S. Patent and Trademark Office uses an
activity-based costing methodology.\18\ Federal Maritime Commission
uses a costing methodology under the Independent Offices Appropriation
Act of 1952 (31 U.S.C. 9701) in accordance with OMB Circular A-76,
Performance of Commercial Activities (revised May 29, 2003).\19\ USDA's
Agricultural Marketing Service develops fees through a series of
equations set by rulemaking,20 21 and a notice-based process
for updating the components of the equations.\22\ Accordingly, when an
Agency is not fulfilling a ministerial function to prescribe user fees
in a certain manner (as is the case with CBP), there are a variety of
methodologies currently in use throughout the Federal government to
compute the fees, and the most pertinent consideration is which
methodology is most appropriate for a particular Agency's purposes. In
this regard, we consider the proposed three-part methodology to have a
distinct advantage over the previous two-part methodology with respect
to the allocation of costs in non-equivalent outputs. As previously
mentioned, direct trace allocation assigns costs directly to an output
or outputs, and ``number of''/workload allocation assigns costs based
on the number of inspection units. ``Number of''/workload allocation is
optimal for equivalent outputs. For example, a pest identification is
equivalent across all pathways: The workload to perform a taxonomic
pest identification in the air passenger environment is equivalent to
the workload to perform a taxonomic pest identification in maritime,
truck, rail, or air cargo environments. However, the ``number of''/
workload method is less useful for non-equivalent outputs such as the
inspection of an air passenger and their luggage compared to the
inspection of a maritime vessel and its associated cargo. While both
are considered individual inspection events, they are decidedly not
equivalent in terms of workload. The use of FTE hours, that is, the
number of hours spent producing outputs, is the optimal cost allocation
method for non-equivalent outputs. To continue the air passenger/
commercial vessel comparison, assigning costs using the FTE hours spent
inspecting in the air passenger environment compared to the number of
FTE hours spent inspecting in the commercial vessel and maritime cargo
environments provides a much more accurate means of measuring the
workload required for these two non-equivalent outputs than does the
previous methodology. Following the model validation task, Grant
Thornton found that the APHIS (direct trace, number of/workload, FTE
hours) cost models use the preferred allocation scheme for equivalent
outputs and non-equivalent outputs as appropriate.
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\16\ https://www.govinfo.gov/content/pkg/FR-2007-01-26/pdf/07-335.pdf.
\17\ https://www.govinfo.gov/content/pkg/FR-2017-11-01/pdf/2017-23878.pdf.
\18\ https://www.uspto.gov/sites/default/files/documents/Activity%20Based%20Information%20and%20Patent%20Fee%20Unit%20Expense%20Methodology.docx.
\19\ https://downloads.regulations.gov/FMC-2023-0009-0001/content.pdf.
\20\ https://downloads.regulations.gov/AMS-LPS-13-0050-0001/content.pdf.
\21\ https://downloads.regulations.gov/AMS-LPS-13-0050-0004/content.pdf.
\22\ https://downloads.regulations.gov/AMS_FRDOC_0001-2337/content.pdf.
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A second proposed update to the ABC Model and cost calculation is
to change the manner in which we calculate costs to account for
inflation. The proposed rule would apply the C-CPI-U to prior years'
(FY 2017-FY 2019) costs into rulemaking year dollars before calculating
the base fees. We would also apply a projected C-CPI-U to set the
overall fee schedule. In prior rulemaking to adjust AQI user fees,
APHIS has used the Office of Management and Budget (OMB) economic
assumptions for inflation. These assumptions incorporate the Consumer
Price Index for all Urban Consumers (CPI-U). APHIS selected the
C-CPI-U as the basis for inflation adjustments for AQI user fees
because it accounts for consumer substitution taking place between CPI
item categories.\23\ Typically, the C-CPI-U does not increase by as
much as an index that was based on fixed purchase patterns, such as the
CPI-U. APHIS therefore determined that the C-CPI-U would be fairer in
fee setting for AQI user fees than the CPI-U. The Bureau of Labor
Statistics has comprehensive
[[Page 54800]]
information about the C-CPI-U on their website.\24\
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\23\ See supporting document ``Projected Fees for Agricultural
Quarantine Inspections, FY2024-2028.'' See footnote 5 for
instructions on how to view this and other supporting documents on
Regulations.gov.
\24\ https://www.bls.gov/cpi/additional-resources/chained-cpi.htm.
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Third, the fee calculations in this proposed rule would also be
forward-looking in that they would account for costs not previously
considered. We now face new sanitary and phytosanitary threats that
require APHIS and CBP to take on additional safeguarding measures and
activities not previously accounted for in our assessment of staffing
needs. We have been forced to commit resources to cover high priority
risks, at the cost of necessary investments including mission critical
infrastructure, IT system modernization, and methods innovation.
Emerging high-priority program areas include the following:
Additional inspection resources at airports to mitigate
ASF risk.
Additional inspection resources at international mail and
express courier establishments experiencing eCommerce-driven trade
growth.
New seed sampling and testing workload at ports of entry
and plant inspection stations.
Expanding demand for treatment-monitoring-related
services, such as monitoring the restacking of cargo in overloaded
cargo containers.
Both houses of Congress have indicated interest in different
aspects of the AQI program and AQI user fees in their respective
reports that accompany Agriculture Appropriations legislation. The
House of Representatives has focused on AQI program resources
(personnel, facilities, etc.) and funding.25 26 27 The
Senate has focused more on policy: Re-evaluating the per-enclosure
basis for the treatment monitoring fee, and reevaluating the exemption
for certain small aircraft with 64 or fewer seats.28 29 30
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\25\ https://www.congress.gov/116/crpt/hrpt446/CRPT-116hrpt446.pdf.
\26\ https://www.congress.gov/117/crpt/hrpt82/CRPT-117hrpt82.pdf.
\27\ https://www.congress.gov/117/crpt/hrpt396/CRPT-117hrpt396.pdf.
\28\ https://www.congress.gov/117/crpt/srpt34/CRPT-117srpt34.pdf.
\29\ https://www.congress.gov/116/crpt/srpt110/CRPT-116srpt110.pdf.
\30\ https://www.gpo.gov/fdsys/pkg/CRPT-115srpt259/pdf/CRPT-115srpt259.pdf.
---------------------------------------------------------------------------
As illustrated in tables 1 and 2 below, even under current workload
demands, the AQI program is understaffed by 1,978 personnel.
Table 1--CBP Staffing
----------------------------------------------------------------------------------------------------------------
Total
Pathway/conveyance Total FTEs as Additional projected FY
of FY 2019 FTEs required 2028 FTE
----------------------------------------------------------------------------------------------------------------
CBP FTEs:
Air Passengers.............................................. 1,324 341 1,665
Commercial Aircraft......................................... 819 438 1,257
Commercial Vessel........................................... 356 247 603
Commercial Truck............................................ 155 258 413
Commercial Rail............................................. 33 74 107
Cruise Vessel Passenger..................................... 22 6 28
Other (Non-Fee Areas)....................................... 362 70 432
-----------------------------------------------
Totals.................................................. 3,071 1,434 4,505
----------------------------------------------------------------------------------------------------------------
Table 2--APHIS Staffing
----------------------------------------------------------------------------------------------------------------
Total
Pathway/conveyance Total FTEs as Additional projected FY
of FY 2019 FTEs required 2028 FTE
----------------------------------------------------------------------------------------------------------------
APHIS FTEs:
Commercial Aircraft......................................... 392 200 592
Commercial Vessel........................................... 208 91 299
Air Passengers.............................................. 193 93 286
Commercial Truck............................................ 153 62 215
Treatments.................................................. 57 55 112
Commercial Rail............................................. 34 14 48
Cruise Vessel Passenger..................................... 6 4 10
Other (AQI Non-Fee Areas)................................... 43 25 68
-----------------------------------------------
Totals.................................................. 1,086 544 1,630
----------------------------------------------------------------------------------------------------------------
The AQI program would need to spend an estimated additional $331
million per year to fully staff at the level required to meet current
workload. Because the existing ABC Model does not factor in the
additional cost to increase staffing to meet this workload demand, we
do not currently have the means to recover those costs. Under this
proposed rule, these costs would be factored into our cost model and
fee calculations.
From an operational perspective, there is a limit to the number of
frontline personnel the AQI program can feasibly recruit, hire, and
train within 1 year. The current vacancy rate for APHIS agriculture
specialist positions is 13.2 percent, and for CBP positions it is 3.14
percent. The proposed fee schedule covers a 5-year period during which
we implement the fee changes incrementally to account for the fact that
it will take us 5 years to achieve full staffing and incorporates the
projected inflation adjustment mentioned above. This phased approach
tightly links fees to actual costs rather than charging for unrealized
full staffing up front.
The proposed rule would also account for capital planning costs not
currently factored into the existing ABC Model. In developing the fees
for this proposed rule, we would treat capital planning as a recurring
cost category and build it
[[Page 54801]]
into the model. We would also create a separate, dedicated capital
expenditure account. This approach to capital planning aligns with
guidance for Federal agencies from OMB in the Capital Programming
Guide, Circular A-11 \31\ (2021), and the U.S. Government
Accountability Office (GAO) Executive Guide (1998).\32\ Congress
recognizes the need for these types of investments. As recently as
2021, the House Agriculture, Rural Development, Food and Drug
Administration Committee reported that ``The Committee recognizes that
there may be a need to update APHIS physical facilities, staff
capabilities, and processes due to the increased volume of agricultural
imports'' (H.R. 117-82). By incorporating these planned costs, APHIS
can better adapt to meet increased volumes of imports and changes in
phytosanitary risk, and facilitate trade with enhanced automation,
improved levels of service and compliance assistance.
---------------------------------------------------------------------------
\31\ https://www.whitehouse.gov/wp-content/uploads/2018/06/a11.pdf.
\32\ Executive Guide: Leading Practices in Capital Decision-
Making (Superseded by AIMD-99-32) U.S. GAO.
---------------------------------------------------------------------------
For a full description of the model and how we applied it when
calculating AQI costs and fees, please see the documents in the
supporting documents folder on Regulations.gov, which we are making
available along with this proposed rule.\33\ APHIS has included APHIS
and CBP input costs in the model as well as comprehensive rollup
reports for both fee and non-fee outputs as supplemental documents to
this rulemaking.
---------------------------------------------------------------------------
\33\ See supporting documents ``AQI User Fee Input Costs and
Cost Allocation Summary'' and the data files ending in ``. . .
Rollup Report.'' The AQI User Fee Input Costs and Cost Allocation
Summary can be viewed on Regulations.gov. See footnote 5 for
instructions on how to view the supporting documents on
Regulations.gov. Due to the size of the files, the rollup reports
are available on the APHIS website at https://www.aphis.usda.gov/aphis/ourfocus/business-services/aqi-user-fees/aqi-fee-types/aqi-user-fee-reports. The rollup reports must be downloaded before
viewing.
---------------------------------------------------------------------------
Court Ruling on Reserve Surcharge
On June 21, 2022, the United States Court of Appeals for the
District of Columbia Circuit issued a decision in Air Transport
Association of America v. United States Department of Agriculture, 37
F.4th 667 (D.C. Cir. 2022). In that case, plaintiffs contested aspects
of the 2015 rulemaking which set AQI user fees. The D.C. Circuit
primarily affirmed the 2015 rulemaking in the face of plaintiffs'
challenges. The court, however, found in favor of plaintiffs on one
count: That collection of a reserve surcharge violates the FACT Act of
1990, as amended. On September 15, 2022, upon remand, the district
court issued an amended final judgment vacating the 2015 final rule
only insofar as it authorized the collection of a surcharge in order to
maintain a reserve account.
The D.C. Circuit opinion in the Air Transport Association of
America case has informed this rulemaking. First, APHIS recalculated
its AQI user fees so that the fees would not include a reserve
surcharge component. On November 1, 2022, APHIS issued a Stakeholder
Registry notice \34\ that administratively lowered the fees effective
on December 1, 2022, to comport with the Court's ruling, and on March
17, 2023, APHIS published a final administrative rule in the Federal
Register (88 FR 16371-16372, Docket No. APHIS-2013-0021) adjusting the
four fees that were affected by these recalculations: Those covering
inspection services for trucks making individual crossings and using
transponders, for international air passengers, and for international
cruise vessel passengers. Those adjusted fees are listed under the
heading ``Current Fees'' in table 3 below, along with the other fees
that did not require adjustment. Moreover, it is these fee rates,
rather than the rates as set forth in the 2015 final rule, that served
as the baseline for APHIS' calculations in the supporting documents for
this proposed rule.
---------------------------------------------------------------------------
\34\ https://www.aphis.usda.gov/aphis/newsroom/stakeholder-info/sa_by_date/sa-2022/aqi-user-fees-response.
---------------------------------------------------------------------------
Second, there is no reserve component in the fee rates in this
proposed rule. The fee rates in this proposed rule are set at levels
intended only to result in fee collections that cover the cost of
providing agricultural quarantine and inspection services and the costs
of administering the program, and personnel and capital planning cost
components have been added to the cost model. Adding these cost
components to the model ensures that the program can be fully staffed
in future years and ensures that future-looking capital costs can be
offset as they are actualized, without recourse to use of a general-
purpose reserve to pay for these costs.
Third, historically, the reserve surcharge helped to cover service
costs between the period of service delivery and quarterly AQI user fee
collections. Under the current regulations, payments are made on a
quarterly basis into AQI user fee accounts for commercial aircraft and
international airline and cruise passengers, with monies not remitted
to APHIS until 1 month after the end of the quarter in which they are
collected. Since the fiscal year fourth quarter fees are not due, and
therefore not received, until after the fiscal year is over, we are not
able to use those funds to pay for providing AQI services for those
activities in the fiscal year in which they are earned. Without the
reserve surcharge, APHIS must shorten the time frame between service
delivery and fee collection to avoid periods of insufficient funding
for program operations. Also under the current regulations, APHIS
collects fees for railroad cars 60 days after the close of the month;
APHIS proposes adjusting this remittance schedule to be consistent with
the fees mentioned above. These proposed changes are reflected in the
payment and billing sections for these fee types and are discussed
individually below.
Proposed User Fee Amounts and Justifications
Using the data and methodology discussed above, we calculated the
proposed fees shown below in table 3. We explain each fee service
activity in greater detail in the following paragraphs. If these
proposed fees become effective, we would continue to monitor the costs
of AQI services and our collections and would undertake rulemaking to
adjust the fees if we determine we are not appropriately recovering
costs.
---------------------------------------------------------------------------
\35\ Commercial Truck (per truck arrival) fees have been rounded
down to the next $0.05 (five-cent) increment to facilitate
operations at the border. This rounding does not impact calculation
of the transponder fee.
\36\ One annual payment for unlimited crossings within a
calendar year.
Table 3--Proposed Fees
----------------------------------------------------------------------------------------------------------------
Proposed (in US$)
-----------------------------------------------------------
Fee service activity Current January 1, October 1, October 1, October 1, October 1,
2024 2024 2025 2026 2027
----------------------------------------------------------------------------------------------------------------
Commercial Vessel (per vessel $825.00........... 3,219.29 3,302.23 3,386.20 3,471.18 3,557.18
arrival).
[[Page 54802]]
Commercial Truck (per truck 7.29.............. 11.40 12.40 13.45 14.50 15.55
arrival) \35\.
Commercial Truck (Transponder) 291.60............ 686.40 746.40 808.20 870.60 935.40
\36\.
Commercial Rail (per railroad 2.00.............. 5.81 6.51 7.23 7.97 8.72
car arrival).
Commercial Aircraft (per 225.00............ 288.41 309.00 330.07 351.64 373.68
aircraft arrival).
Air Passenger (per passenger 3.83.............. 4.29 4.44 4.60 4.76 4.93
arrival).
Cruise Vessel Passenger (per 1.68.............. 1.20 1.25 1.29 1.34 1.39
passenger arrival).
Treatments (per hour)........... 237.00 (per 232.97 253.19 273.90 295.12 316.83
treatment).
----------------------------------------------------------------------------------------------------------------
In the sections that follow, we summarize the regulatory changes we
propose. Where we address specific AQI activities, we generally
describe the relevant activities, state the current fee, state the new
fee, and explain the basis for the new fee. The intent of the proposed
provisions is to bring the AQI program closer to full cost recovery,
and more accurately assign costs to different user classes as required
under the FACT Act of 1990, as amended.
Proposed Regulatory Changes
Revisions to Regulatory Definitions
In this proposed rule, we would revise some existing definitions
and add some new ones to Sec. 354.3(a).
The regulations currently define commercial railroad car as a
railroad car used or capable of being used for transporting property
for compensation or hire. We propose to revise the definition to read
as any carrying vehicle, measured from coupler to coupler and designed
to operate on railroad tracks, other than a locomotive or a caboose.
This proposed revision would align APHIS' definition with that of CBP's
in 19 CFR 24.22(d). This alignment is necessary because CBP is the
responsible party for auditing fee remittances; therefore, we believe
it is also appropriate to align our definition with CBP's definition
for consistency of application of the regulations. Aligning our
regulatory definitions with CBP's regulatory definitions simplifies
understanding in the port environment for stakeholders and enhances
operations between the two agencies, such as conducting audits.
The existing regulations in Sec. 354.3(a) define commercial truck
as a self-propelled vehicle, designed and used for transporting
property for compensation or hire and that empty trucks and truck cabs
without trailers fitting this description are included. We are
proposing to define the term as any self-propelled vehicle, including
an empty vehicle or a truck cab without a trailer, which is designed
and used for the transportation of commercial merchandise or for the
transportation of non-commercial merchandise on a for-hire basis. The
proposed revision to the definition would align it with the definition
in the CBP regulations in 19 CFR 24.22(c)(1). CBP collects the
commercial truck fee on behalf of APHIS; therefore, we believe it is
also appropriate to align our definition with theirs for consistency of
application of the regulations.
The existing regulations define Customs as the Bureau of Customs
and Border Protection, U.S. Department of Homeland Security. We propose
to replace that definition with a definition for Customs and Border
Protection (CBP), which would be defined as U.S. Customs and Border
Protection, U.S. Department of Homeland Security. This proposed change
reflects current usage.
We propose to add a definition of passenger to read ``a natural
person for whom transportation is provided, including infants, whether
a separate ticket or travel document is issued for the infant or
toddler, or the infant or toddler occupies a seat, or the infant or
toddler is held or carried by another passenger.'' This proposed
definition would clarify that APHIS' understanding of what constitutes
a passenger aligns with that of CBP in paragraph (g)(1)(v) of 19 CFR
24.22.
We are proposing to add definitions of reconditioning and
restacking. We would define reconditioning as the removal or alteration
of packaging associated with commercial cargo. We would define
restacking as the redistribution of commercial cargo within or removal
from a shipping container or other conveyance. Both of these are
activities that we monitor in connection with AQI treatment services.
As explained later in this document, we have not been charging for
these services, but under this proposed rule, we would begin doing so.
Commercial Vessels
Pursuant to the current regulations in Sec. 354.3(b), the AQI
program inspects, with some exceptions that are discussed below,
commercial vessels of 100 net tons or more arriving at ports of entry
into the customs territory of the United States. Inspecting commercial
maritime vessels involves the following activities: Reviewing manifests
and documentation accompanying incoming cargo; determining entry
status; targeting higher-risk cargo for inspection or clearance;
inspecting cargo, cargo containers, wood packaging material, and
packing materials for plant pests and contaminants; and determining
regulatory compliance. In the maritime cargo environment, the AQI
program also: Inspects the vessel's stores; inspects vessels for
contaminants; identifies pests and invasive species found during
inspection; monitors the storage and removal of regulated international
garbage from the vessel to ensure consistency with all regulatory
requirements; and safeguards shipments pending Plant Protection and
Quarantine (PPQ) determination for treatment or final disposition. The
current fee for these inspection services, as listed in Sec.
354.3(b)(1), is $825 per arrival at a U.S. port.
Over 65 percent of the cargo that arrives in the United States
arrives by commercial vessel. The current revenues generated by the
existing fee of $825 per arrival fall well short of recovering the
costs we incur in providing and administering the associated inspection
services. As indicated in the RIA accompanying this proposed rule,
APHIS estimates a $130 million per year loss if the fee is not adjusted
in year one.
Under this proposed rule, the user fee per arrival, as listed in
Sec. 354.3(b)(1), would increase to $3,219.29 in FY 2024 (beginning in
Quarter 2), $3,302.23 in FY 2025, $3,386.20 in FY 2026, $3,471.18 in FY
2027, and $3,557.18 in FY 2028. See table 3 above for the effective
dates for each fee adjustment. After FY 2028, the fee would remain at
FY 2028 levels for future years pending additional rulemaking. We
intend to initiate a separate rulemaking to
[[Page 54803]]
propose to allow for notice-based adjustments to the fees.
The proposed new fees adjust for the significant increase in ship
cargo capacity since our prior rulemaking, which has increased the
workload required to inspect each vessel. According to the U.S.
Department of Agriculture (USDA) Agricultural Marketing Service,\37\
while the global container vessel fleet expanded by just 6.7 percent
from 2011 through 2020, total cargo capacity of the global fleet
expanded by more than 63 percent. This time period marshaled in the age
of the megaship (a ship with a capacity of 18,000 20-foot containers,
also known as 20-foot equivalent units (TEUs)). These megaships allowed
more containers to be moved per voyage than before, increasing
economies of scale and reducing the number of ships serving some trade
lanes.\38\ The advent and adoption of megaships disrupted the industry
and AQI revenue, as our current fees are tied to the number of ship
arrivals, not the workload required to inspect and clear them. As the
maritime industry shifted to greater carrying capacity, fewer ships
arrived than APHIS predicted, but individual ships took much longer to
inspect. The 2014 proposed rule had assumed average vessel arrivals of
approximately 125,000 for FY 2014 through FY 2016, but the actual
vessel arrivals were only around 54,000 for each of those 3 years. Much
larger ships displaced smaller ships, which reduced costs to trade, but
increased the AQI program's cost to inspect each vessel and the cargo
it carried. The proposed adjusted fees, which would be listed in Sec.
354.3(b)(1), reflect a change in the allocation of certain costs within
the model from using the number of ship arrivals per year to the
workload (FTE hours) it takes to inspect the average ship and its
cargo-a more accurate reflection of our actual costs. Without the
adjusted fees, we would not have adequate resources to provide the
necessary level of AQI services for inspection of commercial vessels,
potentially resulting in bottlenecks in the clearance of maritime
cargo.
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\37\ https://agtransport.usda.gov/stories/s/pjaw-nxa9.
\38\ https://agtransport.usda.gov/stories/s/Ocean-Container-Fleet-Dashboard/pjaw-nxa9/.
---------------------------------------------------------------------------
The proposed vessel fee in FY 2024 is more than four times the
current fee. However, considering the greater cargo capacity per ship
(increased workload), inflation since FY 2010-FY 2012 (prior rule
source data), and the need for additional personnel to inspect and
clear cargo in a timely manner, APHIS believes the data justify this
increase. Two main factors contributed to the increase in the
commercial vessel fee: First, increase in workload per vessel; second,
the change from number of arrivals to FTE hours as the allocation
criterion for certain costs. The 2015 rule used cost and arrival data
from FY 2010 through FY 2012. At that time, the average container
vessel arriving into the United States carried 1,903 twenty-foot
equivalent units (TEUs). This rulemaking uses cost and arrival data
from FY 2017 through FY 2019; during this period, the average arriving
container vessel now carried 2,710 TEUs, a 42.4 percent increase versus
the 2015 rulemaking. This increased workload per vessel increased the
per vessel costs to the AQI program. In addition, in the 2015
rulemaking, certain costs were allocated using number of arrivals as
the allocation criterion for certain costs; the number of vessel
arrivals (approximately 108,000 per year in FY 2010--FY 2012) was
relatively small (0.03 percent) compared to total arrival numbers
(approximately 325 million arrivals per year between FY 2010 and FY
2012 including all conveyances and passenger). This rulemaking uses
frontline AQI FTE hours--a more accurate measure for assigning costs
for non-equivalent outputs (inspecting one passenger versus inspecting
a commercial vessel and its cargo are not equivalent)--to allocate
these costs. At full implementation, there will be approximately
575,000 frontline AQI FTE hours assigned to the commercial vessel and
maritime cargo functions out of over 4 million total frontline AQI FTE
hours or over 14 percent. The change to frontline AQI FTE hours changes
the cost allocation for certain costs to commercial vessels from
approximately 0.03 percent to over 14 percent.
The current version of Sec. 354.3(b)(2) exempts certain vessels
from AQI user fees. These include passenger vessels that depart from
and return to U.S. ports without docking at any foreign ports, as well
as certain barges, tugboats, and vessels used in government service.
Currently, paragraph (b)(2)(vi) states that certain barges traveling
solely between the United States and Canada meeting certain conditions
are exempted from AQI user fees. Barges eligible for the exemption are
those barges: That travel solely between the United States and Canada;
that do not carry cargo originating from countries other than the
United States or Canada; that do not carry plants or plant products;
that do not carry animals or animal products; and that do not carry
soil or quarry products from areas in Canada listed in 7 CFR 319.77-3
as being infested with gypsy moth. Based on the pathway analysis that
we conducted, we are proposing to eliminate this exemption. As
discussed in our pathway analysis, we determined that barges entering
the United States from Canada pose a phytosanitary risk similar to
barges entering the United States from origins other than Canada and to
other types of vessels entering from Canada. Barges from origins other
than Canada and other types of vessels from Canada are not exempt from
AQI user fees. Other vessels from Canada are required to pay user fees
even when travelling the same routes and carrying the same cargo as
exempt barges. APHIS promulgated the exemption for barges from Canada
meeting certain conditions in 2010 (75 FR 10634) stating: ``we [APHIS]
do recognize that barges traveling solely between the United States and
Canada are operating in a lower-risk environment: A limited range of
waterways between and around the U.S./Canada border such as the Puget
Sound and the Great Lakes, which means that such barges present a much
lower risk of carrying cargo or hitchhiking pests from a third
country.'' In APHIS' recent analysis, we found that nearly 1,500 barges
arrive from Canada annually requiring manifest review, review of
documents, and physical inspection as necessary, which incur costs on
the part of the AQI program. Moreover, part of the original premise
that barges from Canada travel in limited waterways is no longer true,
with certain barges from Canada arriving into 49 United States ports of
entry as far south as Charleston, South Carolina on the east coast, and
Oakland, California on the west coast. For additional information,
please see the document titled ``Pathway Analysis for Barges from
Canada,'' which we are making available along with this proposed
rule.\39\ Because barges from Canada do not pose less of a
phytosanitary risk than those other vessel types, the proposed rule
would eliminate the exemption for barges. To be clear, the AQI program
does currently conduct inspections of barges arriving from Canada and
the cargo they carry, and therefore incurs costs to the program.
Removal of the exemption allows the AQI program to recover these barge-
related costs.
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\39\ See footnote 5 for instructions on how to view this and
other supporting documents on Regulations.gov.
---------------------------------------------------------------------------
Finally, the commercial vessel fee would also not apply to
commercial cruise (passenger) vessels that carry
[[Page 54804]]
passengers paying the international passenger fees under paragraph (f)
of Sec. 354.3 because the cost of inspecting the entirety of the
vessel is included in the international cruise passenger fee, and
cruise vessels almost never carry commercial cargo. That broad
exemption would replace the existing limited exemption in paragraph
(b)(2)(i) of Sec. 354.3 for certain foreign passenger vessels. In this
respect, the treatment of commercial vessels is distinct from that of
international aircraft carrying passengers, which are not exempt from
the commercial aircraft user fee. It is routine for commercial aircraft
to carry passengers (and associated baggage) and cargo, but cruise
vessels almost never carry commercial cargo.
Commercial Trucks
We inspect commercial trucks at land ports in the customs territory
of the United States arriving from Mexico and Canada. Inspecting
commercial trucks involves the following activities: Reviewing
manifests and documentation accompanying incoming cargo; determining
entry status; targeting higher risk cargo for inspection or clearance;
inspecting cargo, cargo containers, wood packaging material, and
packing materials for plant pests and contaminants; and determining
regulatory compliance. In the commercial truck environment, the AQI
program also: Inspects trucks for contaminants; identifies pests and
invasive species found during inspection; ensures consistency with all
regulatory requirements; and safeguards shipments pending PPQ
determination for treatment or final disposition.
AQI user fees for inspection of commercial trucks entering the
customs territory of the United States are listed in Sec. 354.3(c)(1).
The current operational fee is $7.29 per truck arrival (see footnote 35
for further elaboration), with an option, under paragraph (c)(3), to
prepay an amount (currently $290.61) 40 times the single-arrival fee to
obtain a transponder that will cover all arrivals of a commercial truck
during a calendar year.
For context regarding the transponder option, there are only two
fee classes that allow for remittance of an annual fee, commercial
trucks and commercial railroad cars. (As we discuss below, the option
for commercial railroad cars is effectively unused and we are seeking
public comment on whether to eliminate it.) In both instances the means
of conveyance are crossing land borders using routes (whether roads or
rails) that are heavily traversed. This is especially true of
commercial trucks, where there are approximately 11 million crossings
per year.
Currently, there is not infrastructure in place at land borders to
allow for real-time fee collection (similar to automated toll
collection systems used throughout the United States), although that is
a long-term goal. Accordingly, annual remittance is used as an option
to reduce border congestion and to keep border operations manageable.
We currently incentivize annual payments by placing a cap on the
annual fee for truck crossings; crossings beyond the cap are
effectively free. This incentivization makes sense because the
alternative, in which CBP personnel must collect the commercial truck
fee 11 million times annually, is operationally untenable. However, if
we were to make this same practice broadly applicable across modes, it
would undermine full cost recovery.
We are proposing to add a sentence to paragraph (c)(1) stating that
the AQI user fee would apply to all commercial trucks, regardless of
what they are carrying, including empty trucks and truck cabs. This
addition is already codified under the current definition of commercial
truck, but the existing regulations in paragraph (c)(1) do not state
the requirement explicitly; this revision clarifies application of the
fee. Empty trucks and truck cabs need to be inspected because they may
pose a phytosanitary risk due to hitchhiking pests and contaminants
from past shipments.
Strictly following the 2023 FTE model, the user fee per arrival, as
listed in proposed paragraph (c)(1), would increase to $11.44 in FY
2024, $12.44 in FY 2025, $13.47 in FY 2026, $14.51 in FY 2027, and
$15.59 in FY 2028; however, at CBP's request, we are rounding these
fees down to the next $0.05 (five-cent) increment to facilitate
operations at the border. CBP has indicated that making change at the
penny level for single-payer trucks would have a negative impact on
wait times at the land border. Therefore, the fees under proposed
paragraph (c)(1) would increase to $11.40 in FY 2024, $12.40 in FY
2025, $13.45 in FY 2026, $14.50 in FY 2027, and $15.55 in FY 2028. The
corresponding prepaid (transponder) user fees would be set at an amount
60 times the unrounded fee rates for each arrival, as discussed further
below, and would rise to $686.40, $746.40, $808.20, $870.60, and
$935.40, respectively. As shown in the RIA accompanying this proposed
rule, APHIS estimates an aggregate $67.5 million loss per year if the
per-arrival and prepaid user fees are not adjusted in year one.
In the past 10 years, agricultural cargo arriving by truck has
increased by 90.6 percent, from 21.7 billion kilograms to 41.32 billion
kilograms. In addition, APHIS conducted an analysis showing that the
volume of freight per truck has increased from 7.6 tons per truck in
2010 (beginning of the 2015 final rule's source data) to 8.5 tons per
truck in 2019 (end of this rulemaking's source data); moreover, this
increase continues, with the average arriving truck carrying 10.4 tons
of freight in 2021.\40\ We must increase staff on the truck pathway to
address this increase in volume.
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\40\ See supporting documents: Changes in the Carrying Capacity
of Containerized Maritime and Land Border Transport Over Time: A
Brief Analysis.
---------------------------------------------------------------------------
Analysis of collections data cross-referenced with truck arrival
data shows a consistent average of 90 crossings per transponder per
year from 2013 through 2021. However, to incentivize use of annual
transponders, APHIS proposes to set the AQI truck transponder fee at 60
times the per arrival fee, an increase from 40 times the per arrival
fee used to calculate the current transponder fee. This has no impact
on CBP truck transponder fees.
The proposed truck fee at full implementation (FY 2028) is more
than double the current fee; however, the volume of cargo per truck has
increased from an average of 7.6 tons per truck (FY 2010-FY 2012) to
over 8.5 tons per truck (FY 2017-FY 2019). Considering the increased
cargo volume per truck, increased agricultural risk per truck,
additional personnel to ensure more expedient border clearance, and
inflation since the FY 2010-FY 2012 source data period for the 2015
final rule, APHIS believes the data justify this increase. Under the
proposed rule, by FY 2028, the associated prepaid transponder fee will
more than triple; however, the average truck transponder crosses the
border more than 90 times in a calendar year. To incentivize the
purchase of transponders, which facilitate border-crossing procedures,
while limiting the impact of the fee increase on trucking companies,
APHIS is proposing to set the truck transponder fee multiple at 60
times the unrounded per arrival fee. Again, APHIS believes the
underlying transponder usage data justifies this increase.
We are proposing an additional amendment to clarify that
prepayments for purchases of transponders may be made at any time
during a calendar year. The proposed rule would not provide, however,
for prorating of the prepayment cost or allowing credit for individual
crossings made prior to
[[Page 54805]]
prepayment, if the operator of the commercial truck elects to prepay
during a calendar year. This proposed change would better align our
prepayment requirements with those of CBP.\41\ As noted earlier,
provisions for prepayment for truck transponders are currently
contained in paragraph (c)(3) of the regulations. In those existing
regulations, paragraph (c)(2) is reserved. In this proposed rule, the
prepayment requirements described above would be moved to proposed
(c)(2), and paragraph (c)(3) would be eliminated.
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\41\ https://dtops.cbp.dhs.gov/main/help/HelpfulInfo2FAQs.jsp
section ``About Decals, Transponders, and Single Crossing Fees''.
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Commercial Railroad Cars
The AQI program inspects commercial railroad cars (cargo) arriving
at land ports in the customs territory of the United States from Mexico
and Canada. Inspecting railroad cars involves the following activities:
Reviewing manifests and documentation accompanying incoming cargo;
determining entry status; targeting higher risk cargo for inspection or
clearance; inspecting cargo, cargo containers, wood packaging material,
and packing materials for plant pests and contaminants; and determining
regulatory compliance. In the rail cargo environment, the AQI program
also: Inspects railroad cars for contaminants; identifies pests and
invasive species found during inspection; monitors the storage and
removal of regulated international garbage from the railroad car to
ensure consistency with all regulatory requirements; and safeguards
shipments pending PPQ determination for treatment or final disposition.
Fees for inspection of loaded commercial railroad cars arriving at
land ports in the United States are listed in current Sec.
354.3(d)(1). The current fee is $2 per loaded railroad car arrival,
with an option to prepay an amount 20 times the single-arrival fee for
all arrivals of a commercial railroad car during a calendar year.
Under this proposed rule, the user fee per arrival, as listed in
proposed paragraph (d)(1)(l), would increase to $5.81 in FY 2024, $6.51
in FY 2025, $7.23 in FY 2026, $7.97 in FY 2027, and $8.72 in FY 2028.
The corresponding prepaid user fees, which would be set at an amount 48
times the AQI user fee for each arrival, would rise to $278.88,
$312.48, $347.04, $382.56, and $418.56, respectively.
Based upon analysis of collections and arrival data,\42\ the
average railroad car arrives 48.32 times per year. A prepaid multiple
of 48 brings us significantly closer to full cost recovery than the
present multiple of 20 times the per arrival fee. As shown in the RIA
accompanying this proposed rule, APHIS estimates a $13.5 million loss
annually if the commercial railroad car user fees are not adjusted in
year one.
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\42\ See supporting document ``Analysis of AQI User Fees: Truck
Transponder and Prepaid Railroad Car Multiples Using Fee Collections
and Arrival Data''. See footnote 5 for instructions on how to view
the supporting documents on Regulations.gov. Please note that
because our analysis reviews FY 2017-2019 data, which precedes the
court opinion referred to above, it assesses usage when the truck
crossing fee was $7.55, rather than the current $7.29.
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The commercial railroad car fee will more than quadruple by full
implementation in FY 2028 from its current level. The main reason for
this is what falls under the regulatory definition of a railroad car
[19 CFR 24.22(d)(1)] is now much larger than what the current
inspection fee is designed to cover. The current fees are designed to
cover inspection costs for a railroad car that is essentially a single
box on wheels. The typical railroad car in use today, however, consists
of a multi-unit chassis with double stacked containers on wheels. Cargo
in general arriving into the United States by rail has increased nearly
15 percent since the FY 2010-FY 2012 period (source data 2015 final
rule). Moreover, agricultural cargo arriving by rail has increased over
20 percent since 2010, from over 15 billion kilograms to over 18
billion kilograms in 2021. We must increase staff on the rail pathway
to address these changes in trade on our land borders (see Tables 1 and
2 above). Considering the aforementioned increase in rail cargo volume
and the steeper increase in agricultural rail cargo volume, the
necessary addition of personnel to ensure more expedient border
clearance, and inflation since the FY 2010-FY 2012 source data period
for the 2015 final rule, APHIS believes the data justify this increase.
As noted above, the existing regulations in Sec. 354.3(d)(1) refer
to AQI fees for inspection of loaded commercial railroad cars. In
addition to the fee changes, we are proposing to amend Sec.
354.3(d)(1) to remove the references therein to loaded cars. CBP
inspects all commercial railroad cars, loaded and unloaded; however,
APHIS does not collect AQI user fees for unloaded rail cars under the
current regulations. However, both loaded and unloaded cars and rail-
bound containers can harbor hitchhiking pests, and can transit through
multiple countries with disparate pest risk profiles in terms of
possible hitchhiking pests. For this reason, both the exterior and
interior of unloaded railroad cars and unloaded rail-bound containers
need to be inspected because they, too, may pose a phytosanitary risk
due to hitchhiking pests and contaminants from past shipments. In order
to recover the costs of conducting these inspections, we propose to
make unloaded railroad cars subject to AQI user fees.
Current paragraph (d)(3) contains prepayment requirements for a
calendar year for railroad companies choosing that option. We are
proposing to amend that paragraph, as we did paragraph (c)(2), to
provide for purchases made during a calendar year. The amendment would
better align the rule with language in CBP regulations in 19 CFR 24.22.
As is the case for commercial trucks, no credit would be given towards
the annual prepayment for single payer crossings made earlier in the
calendar year, nor would the annual prepayment amount be prorated.
While the current regulations include a prepaid option for
commercial railroad cars, very few railroad companies use the prepay
option. Based on this, APHIS is considering eliminating the prepaid
option to simplify the regulations. APHIS originally developed the
prepaid railroad car option to reflect a similar option available for
railroad companies paying CBP COBRA fees. Recent consultation with CBP
and discussions with APHIS' own Financial Management Division reveal
that in any given year very few, if any, railroad operators do actually
exercise this option. APHIS invites comments on the possibility of
eliminating the prepaid railroad car option.
Statement, remittance, and compliance requirements for AQI user
fees for commercial railroad cars are located in current paragraphs
(d)(4) through (6) of Sec. 354.3. Under current paragraph (d)(4), the
Association of American Railroads (AAR) and the National Railroad
Passenger Corporation (AMTRAK) must submit monthly written statements
by mail to APHIS listing the number of loaded commercial railroad cars
entering the United States during the relevant period, the number of
those cars pulled by each railroad company and the total monthly AQI
user fee due from each railroad company.
We would revise paragraph (d)(4) to provide for submission of
remittance not only by AAR and AMTRAK, as is the case in the current
regulations, but by individual railroad companies as well. This
proposed revision would more closely align our requirements pertaining
to railroad car user fees with those of CBP [19 CFR 24.22(d) et seq.].
[[Page 54806]]
CBP cites: ``The Association of American Railroads (AAR), the National
Railroad Passenger Corporation (AMTRAK), and any railroad company
preferring to act individually, must file monthly statements. . . .''
Current APHIS regulations omit ``any railroad company preferring to act
individually''. This revision corrects this oversight.
We are also proposing some updates to statement, remittance, and
compliance procedures in paragraphs (d)(4) through (6). We are
proposing to replace the words ``statement'' and ``remittance'' in the
rule with the words ``remittance worksheet'' and ``payments'' to
clarify what is required in plain language. The document that would be
submitted along with a payment would be the ``remittance worksheet''
rather than a monthly statement, which is the current practice. The
remittance worksheet would capture the same data previously submitted
on the monthly statements but is a standardized worksheet produced by
APHIS' Financial Management Division. Changing to the remittance
worksheet would standardize the documentation we receive from entities
within a user class as well as standardize documentation across all
user classes, which would simplify APHIS recordkeeping and payer
compliance. For example, entities currently submit this data in a
variety of formats. Some even submit more information than is
necessary. Having the ability to complete a worksheet would focus their
efforts on only the required information. This would also make the
process easier for APHIS, because we would look at incoming data on the
same type of incoming document each time rather than being required to
hunt through various entity formats to find and record the information
we need. We are making the worksheet available as a supporting document
for this proposed rule. We would also remove outdated mailing
addresses, and provide a link (https://www.aphis.usda.gov/aphis/ourfocus/planthealth/ppq-program-overview/ppq-cbp-aqi-user-fees-contacts) to information on submitting remittance worksheets, and
payments, both electronically and by mail, and for entities submitting
online, provide an email address for submission.
To make collections for railroad cars consistent with the proposed
changes to international air passenger, commercial aircraft, and
international cruise passenger fees, APHIS proposes changing the
remittance deadline for railroad cars to 90 days after the close of a
calendar month. Under this proposed rule, railroads would remit their
payments to APHIS on a monthly basis (12 times per year) which is the
same as the current requirement; however, railroads would have 90 days
to reconcile their books for each month versus the current 60-day
period after the close of the month. For example, remittance of fees
collected in January of a given year would occur at the end of April of
that year (90 days after the close of January); remittance of fees for
February of a given year would occur at the end of May of that year;
remittance of fees for October of a given year would occur at the end
of January of the following year, etc. Regular and predictable
remittance of user fee collections helps with the financial management
of the AQI account and with trend prediction for future operation
planning. The proposed changes to these paragraphs would both clarify
and streamline the procedures and update them to improve APHIS business
practices.
Further, to increase accountability and establish individual
responsibility for complying with our payment and remittance worksheet
requirements, we would require that the AAR, AMTRAK, and any railroad
company acting individually for making AQI user fee payments designate
an agent or responsible person, who would have that responsibility. We
would also specify the duties of that responsible person in paragraph
(d)(6), which we would divide into two subparagraphs. Proposed
paragraph (d)(6)(i) would contain the existing provisions of paragraph
(d)(6), without the outdated addresses. Proposed paragraph (d)(6)(ii)
would state that the agent or other responsible person for a payment
remains the agent or responsible person until the railroad company
notifies APHIS of a transfer of responsibility. Before such a transfer
could take place, the agent or responsible person would first have to
contact APHIS to initiate the transfer. Once APHIS acknowledges the
transfer, the new agent or responsible person would assume all
responsibilities for ensuring compliance with the requirements of 7 CFR
part 354. This proposed requirement would ensure seamless continuity of
individual responsibility for compliance in the event of personnel
changes on the part of a regulated party, and facilitates APHIS'
ability to resolve issues quickly, thereby improving efficiency and
customer service.
Commercial Aircraft
APHIS inspects international commercial aircraft arriving at
airports in the customs territory of the United States. These
inspections cover commercial aircraft capable of carrying cargo and
passengers, regardless of whether cargo or passengers are on a
particular flight. Inspecting commercial aircraft involves the
following activities: Reviewing manifests and documentation
accompanying incoming cargo; determining entry status; targeting higher
risk cargo for inspection or clearance; inspecting cargo, international
mail, expedited courier packages, cargo containers, wood packaging
material, and packing materials for plant pests and contaminants; and
determining regulatory compliance. In the commercial aircraft
environment, the AQI program also: Inspects the aircraft hold and
exterior for contaminants and pests; identifies pests and invasive
species found during inspection; ensures consistency with all
regulatory requirements; and safeguards shipments pending PPQ
determination for treatment or final disposition. As discussed below,
there is a separate international air passenger fee, which covers,
among other things, inspection of the aircraft passenger cabin.
Fees for inspection of commercial aircraft are listed in Sec.
354.3(e)(1). The current fee is $225 per arrival. Under this proposed
rule, the user fee per arrival, as listed in proposed paragraph (e)(1),
would increase to $288.41 in FY 2024, $309.00 in FY 2025, $330.07 in FY
2026, $351.64 in FY 2027, and $373.68 in FY 2028.
Commercial aircraft carry less than 1 percent by volume of
commercial cargo arriving in the United States. However, commercial air
cargo is high-risk, highly perishable, and includes time-sensitive
express courier shipments, and it accounts for an estimated 43 percent
of total AQI cargo inspection costs. These costs are driven in part by
the intensive effort required to inspect numerous small packages and
highly perishable commodities, which are more likely to be transported
via aircraft than by another type of conveyance. As with other
conveyances and shipping containers, the aircraft themselves pose a
significant risk from potential hitchhiking pests. From 2014 to 2020,
the increase in agricultural cargo imports coincided with a tripling in
the growth of worldwide mail and express courier shipment volumes,
growing from 43 billion to 131 billion parcels--a 27 percent year-on-
year increase. Industry analysts predict another doubling in worldwide
parcel volume by 2026.\43\
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\43\ https://www.statista.com/chart/10922/parcel-shipping-volume-and-parcel-spend-in-selected-countries/.
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[[Page 54807]]
The proposed adjusted fees would fund full staffing to inspect
these aircraft and their cargo at airport facilities throughout the
country, at all arrival times. The proposed aircraft fee for FY 2028 is
approximately 1.6 times the current fee. This cost increase under the
terms of the proposed rule reflects the additional staffing to meet our
current and anticipated needs in the air cargo environment. The wide
geographic range (over 320 airport facilities throughout the United
States receive foreign cargo), stakeholders' need for rapid processing
times, and around-the-clock service requests make servicing the air
cargo environment one of the most demanding AQI functions. When coupled
with inflation since the FY 2010-FY 2012 source data period for the
2015 final rule, APHIS believes the data justify this increase.
In addition to the proposed fee changes, we are proposing to remove
paragraph (e)(2)(iv), which exempts from AQI user fees certain
passenger aircraft with 64 or fewer seats. As noted above, the pathway
analysis we conducted demonstrates that this exemption is no longer
justified. Results of the pathway analysis indicated that aircraft with
64 or fewer seats had many opportunities for exposure to hitchhiker
pests, as well as many opportunities to expose pests to a large variety
of environments in the United States. Because of the high number of
flights and flight routes by aircraft with 64 or fewer seats, relative
to those with 65 seats and above, and given the similar numbers in
origins and destinations between the two types of aircraft, we
concluded that commercial passenger aircraft with 64 or fewer seats
serve as a pathway for the introduction of quarantine pests to the
United States and propose eliminating the exemption.\44\
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\44\ See footnote 5 for instructions on how to view this and
other supporting documents on Regulations.gov.
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APHIS decided not to propose a new tiered structure for the
commercial aircraft fee based upon aircraft size or seat number. This
is because, as noted in the pathway analysis, the phytosanitary risk
posed by a particular aircraft is based upon a variety of factors,
including the country of origin, countries transited, type and volume
of cargo, country of origin of the cargo, and environmental conditions
at point of origin and final destination.
The number of seats in the aircraft thus has little bearing on
phytosanitary risk as it pertains to the aircraft fee. (Indeed,
inspection of seats on an aircraft is a cost component factored into
the international air passenger fee, not the commercial aircraft fee.)
There is, moreover, not a single consideration that differentiates
aircraft into ``high risk'' and ``low risk'' categories. Moreover, a
fee tiered to account for all these factors would require excessive
administration to run properly and become cost-prohibitive and
impracticable. Instead, APHIS is proposing a single aircraft fee that
is based on the average cost to inspect and clear commercial aircraft
and their cargo, regardless of the number of seats on the plane. APHIS
invites specific comment on whether the aircraft fee could be
structured differently from our proposed structure, as well as evidence
in support these alternate structures.
We are proposing to revise paragraphs (e)(3) and (4), which pertain
to remittances and compliance for AQI user fees for commercial
aircraft, in a manner corresponding with the revisions to paragraphs
(d)(4) through (6), i.e., by changing the terminology to refer to
``remittance worksheets'' and ``payments'' rather than ``statements''
and ``remittances,'' removing outdated addresses, providing updated
information links and options for making electronic payments and
submissions of remittance worksheets, and adding requirements
pertaining to the air carrier's agent or responsible person for
overseeing compliance. These changes would parallel those in paragraph
(d) described above. We would also remove the requirement currently in
paragraph (e)(3)(ii)(B), which requires the person submitting payment
to provide his or her taxpayer identification number (TIN). APHIS
collects the TIN for enforcement and debt collection when the
stakeholder establishes a payment account with APHIS; therefore, this
personally identifiable information is not necessary for submission of
individual remittances. APHIS also proposes removing current paragraphs
(e)(3)(ii)(D) and (e)(3)(ii)(E). APHIS no longer uses ports of entry at
which inspections occurred or number of arrivals at each port for fee
collection purposes.
Proposed changes to paragraph (e)(3) also include decreasing the
period for payment of the fees and submission of remittance reports
from quarterly to monthly. Under this proposed rule, airlines would
remit their payments to APHIS on a monthly basis (12 times per year)
versus the current quarterly basis (four times per year). They would
have 90 days to reconcile their books for each month versus the current
31-day period after the close of the quarter. For example, remittance
of fees collected in January of a given year would occur at the end of
April of that year (90 days after the close of January); remittance of
fees for February of a given year would occur at the end of May of that
year; remittance of fees for October of a given year would occur at the
end of January of the following year, etc.
The AQI account balance changes daily as customers remit their user
fees, as the APHIS program obligates funds, as refund requests are
processed, as account recoveries are received, as funds are transferred
to CBP, and as other account adjustments are made. A regular and
predictable remittance of user fee collections helps with the financial
management of the account and trend prediction for future operation
planning. To illustrate, from FY 2017 to FY 2019, commercial aircraft
collections averaged over 23 percent of total collections, or nearly
$188 million. Also, from FY 2017 to FY 2019, commercial aircraft
passenger collections averaged over 61 percent of total collections, or
nearly $486 million. Collections from the air sector (commercial
aircraft and commercial air passenger) are a combined annual average of
over 85 percent of total AQI collections. Under this rule as proposed,
APHIS estimates that by FY 2028 the combined air sector would account
for approximately 68 percent of total collections assuming future
arrivals match average arrivals for FY2017 through FY2019. Because of
the large proportion of collections from the air sector, the current
quarterly remittance schedule for airlines results in significant
fluctuations in the account balance, making such financial management
and planning challenging throughout the fiscal year. For example,
airlines remit large sums 1 month after the close of each quarter, and
APHIS transfers funds to CBP every other month. At certain times of the
year, the quarterly remittance schedule and bi-monthly transfers lead
to a low balance in the account, which may lead to a needed delay in
transferring funds to CBP or APHIS operations until collections are
received. During the pandemic, this trend was mitigated by appropriated
supplemental funds. A monthly remittance schedule would smooth the
revenue stream, which would lead to a more regular and predictable
account balance. This, in turn, would allow for better financial
management and trend predictions to promote the program's ability to
achieve its mission efficiently and effectively. Finally, we note that,
under 21 U.S.C. 136a(a)(3), APHIS has broad authority to set remittance
schedules as it deems fit.
[[Page 54808]]
International Passengers Arriving at Airports and Seaports
Millions of travelers arrive at U.S. airports and seaports from
international destinations daily. Inspecting international air
passengers includes pre-arrival analysis of incoming passengers and
screening arriving air passengers for agricultural products by the AQI
Program; inspection of passenger baggage using CBP agriculture canines
and specialized non-intrusive inspection equipment; inspecting the
interior of the passenger cabin and baggage compartments of the
aircraft; monitoring the storage and removal of regulated international
garbage from the aircraft to ensure consistency with all regulatory
requirements; safeguarding and appropriately disposing of any seized or
abandoned prohibited agricultural products; and identifying and
mitigating pests found on prohibited agricultural products or in
passenger cabins brought into the country via international travel.
Inspecting a cruise vessel and its passengers includes pre-arrival
analysis of incoming passengers; screening arriving sea passengers for
agricultural products by CBP Agriculture Specialists and CBP Officers;
inspection of passenger baggage using CBP agriculture canines and
specialized non-intrusive inspection equipment; inspection of the
vessel itself to ensure that contaminants, prohibited articles, or
invasive pests are not present; inspecting the ship's stores to ensure
that prohibited items are not present or are properly safeguarded; and
monitoring the storage and removal of regulated international garbage
from the vessel to ensure consistency with all existing regulatory
requirements. The costs of inspecting the cruise ships themselves are
covered by the sea passenger fee because the entirety of a cruise
vessel is passenger-related. APHIS added the sea passenger AQI user fee
in the 2015 final rule.
The current AQI user fee for inspection of commercial air
passengers is $3.83 per arrival. Under this proposed rule, the user fee
per arrival, as listed in proposed Sec. 354.3(f)(1), would increase to
$4.29 in FY 2024, $4.44 in FY 2025, $4.60 in FY 2026, $4.76 in FY 2027,
and $4.93 in FY 2028.
Over the past decade, air and sea passenger volumes have each grown
on average by over 50 percent (air by 54.6 percent and cruise by 51.65
percent), but the number of frontline employees (inspectors) actually
decreased over this period. Looking specifically at frontline employee
workload, there were 62,000 passengers per frontline employee in 2010.
By 2019 there were 98,000 passengers per frontline employee, a 58
percent increase in workload per employee. While we experienced a
decrease due to the COVID-19 pandemic, international passenger volumes
are projected to recover in 2024 and grow 3.5 percent annually, further
increasing frontline employee workload. In a static cost and wage
environment, collections of passenger fees increase with increasing
passenger arrivals, and increased collections would result in
additional funds for hiring additional personnel and purchasing
additional equipment to cover workload; however, underlying Federal
employee wages and equipment costs have increased while the fee has
remained static. For example, from 2015 to 2023, a GS-12 Step 5
(typical CBP Agriculture Specialist inspector) salary at two of the
largest airports, John F. Kennedy International Airport in New York and
Los Angeles International Airport in California, increased more than 22
percent, and equipment and other costs as measured by inflation (CPI-U)
have increased over 28 percent from December 2015 to April 2023 while
the fee itself remained static.
In addition to enabling us to recover the costs of our current
program activities, the proposed fee change would increase the presence
of CBP AQI canine teams from the current 189 AQI canine units to a
total of 281 AQI canine units to improve the detection of prohibited
products that could harbor ASF, which has become a disease of
particular concern due to recent outbreaks in the western hemisphere,
as well as other sanitary and phytosanitary risks in passenger baggage.
Congress authorized up to $220 million per year for additional
positions, but it did not fund the authorization.\45\ APHIS estimates a
shortfall of $28.9 million per year if the air passenger fee is not
adjusted.
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\45\ https://www.govinfo.gov/content/pkg/CRPT-116srpt94/html/CRPT-116srpt94.htm.
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The commercial cruise vessel passenger fee is the only fee that
will decrease relative to the current fee. The cruise ship passenger
fee is currently $1.68 per arrival. As listed in proposed Sec.
354.3(f)(1), the fee would decrease to $1.20 in FY 2024, $1.25 in FY
2025, $1.29 in FY 2026, $1.34 in FY 2027, and $1.39 in FY 2028. The
change in the cruise passenger fee owes mainly to the change in
allocation criteria from number of inspection events (passengers) to
FTE hours. Between FY 2017 and FY 2019, there was an average of 15.6
million cruise passenger arrivals out of a total of 287.6 million total
arrivals (all commercial passengers, pedestrians, commercial
conveyances, and privately owned vehicles) or 5.42 percent; however, 22
FTEs out of 3,071 total FTEs or 0.72 percent of CBP AQI personnel
inspected cruise passengers. Using FTE hours as the allocation
criterion for certain costs resulted in 0.72 percent of those costs
allocating to cruise passenger clearance rather than 5.42 percent using
number of passengers (workload).
We have added several proposed clarifications in paragraph (f)
related to applicability, payment, and handling of international
passenger user fees collected and remitted for trips not taken. In
proposed paragraph (f)(1), we have added language to clarify that
infants, traveling with or without documents, whether in assigned seats
or held in an adult passenger's lap, are subject to AQI user fees, as
they are subject to the same inspection as other passengers. This
harmonizes APHIS regulations with CBP regulations in 19 CFR 24.22(g),
and their definition of passenger. As noted above, we are also
proposing to add a definition of passenger to help clarify these
requirements. In proposed changes to paragraphs (f)(5) and (6), we have
shortened the period for payment of international passenger fees and
submission of remittance reports from quarterly to monthly, in order to
recover the costs of inspecting international passengers in a timely
manner as discussed above. As discussed above in relation to paragraph
(e), operators would have 90 days to reconcile their books for each
month. Airlines and cruise lines would remit passenger fees to APHIS on
a monthly basis (12 times per year) versus the current quarterly basis
(four times per year), and would have 90 days to reconcile their books
for each month versus the current 31-day period after the close of the
quarter. For example, remittance of fees collected in January of a
given year would occur at the end of April of that year (90 days after
the close of January); remittance of fees for February of a given year
would occur at the end of May of that year; remittance of fees for
October of a given year would occur at the end of January of the
following year, etc.
We are proposing to add new paragraphs (f)(5)(v) and (vi), which
would cover the handling of international passenger AQI user fees
collected and remitted for trips not taken. Proposed paragraph
(f)(5)(v) would clarify that APHIS' policy is that the entity issuing
the ticket or travel document (e.g., air or sea carriers, travel
agents, tour wholesalers, or other entities) has a responsibility to
make refunds of the international passenger
[[Page 54809]]
AQI user fees in the original form of payment to the purchaser for
trips not taken. Proposed paragraph (f)(5)(vi) describes the process
for requesting a credit from APHIS for international passenger AQI user
fees collected and remitted prior to refunding a ticket purchaser for
an international passenger AQI user fee for a trip that was not taken.
In such cases, the ticket issuing entity would have to submit a revised
remittance worksheet.\46\ In keeping with other proposed changes to
remittance timeframes, the revised remittance worksheet would be
completed and filed for each month during which the ticket or travel
document-issuing entity certifies that there was a decrease in the
number of passengers and international passenger AQI user fees
collected, using the same procedure described in Sec. 354.3(f)(5)(iv)
of this proposed rule.
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\46\ https://www.aphis.usda.gov/mrpbs/userfees/aqi-account-credit-req.xlsx.
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AQI Treatment Monitoring
AQI treatments are performed on some agricultural goods as a
condition of entry, and others are performed when an actionable pest
(i.e., a plant pest that should not be allowed to be introduced into or
disseminated within the United States) is detected during a port-of-
entry inspection. The objective of these AQI treatments is to ensure
that agricultural goods and commodities entering the United States are
free from viable plant pests and noxious weeds that would pose a risk
to the health of U.S. domestic agriculture and natural resources. AQI
treatment methods include fumigation, cold treatment, irradiation, and
heat treatment. APHIS activities related to the application of AQI
treatments include personnel determining the appropriate treatment
schedule, monitoring the treatment to ensure it takes place in the
prescribed manner, and determining whether the treatment was
successful. These AQI services focus on ensuring the effectiveness of a
given treatment, regardless of its methodology. While AQI treatments
are usually provided by private entities who charge the importer for
their services, from time-to-time APHIS will provide the treatment,
especially for propagative materials. We also develop new methods of
treatments. These methods increase the effectiveness of treating
agricultural goods and reduce the risk of dangerous pests entering the
United States.
The 2015 final rule established user fees to cover the costs of
these activities as listed currently in Sec. 354.3(h). Prior to that
rulemaking, these costs were allocated to the conveyance fees; however,
a U.S. Government Accountability Office report \47\ recommended that
treatment monitoring be made a stand-alone fee to improve the
efficiency of AQI user fees. In recent years, the Senate has included
language in reports accompanying Agriculture Appropriations legislation
to reevaluate assessing AQI treatment monitoring fees on a per-
enclosure basis.48 49 50
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\47\ https://www.gao.gov/products/gao-13-268.
\48\ https://www.congress.gov/117/crpt/srpt34/CRPT-117srpt34.pdf.
\49\ https://www.congress.gov/116/crpt/srpt110/CRPT-116srpt110.pdf.
\50\ APHIS is exploring several options for AQI user fees after
FY2028 including a new rulemaking to adjust the fee schedule and a
rule implementing a notice-based process for inflation adjustments
for those periods between fee adjustment rulemakings.
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APHIS has reevaluated the per-enclosure basis and is proposing an
hourly rate instead. We are proposing this change for two reasons.
First, the work of treatment monitoring is clocked in and clocked out
by an employee devoted solely to monitoring that particular treatment,
which results in distinct ``blocks'' of treatment oversight. This lends
itself to an hourly rate because there is an actual computation of the
amount of time worked on a distinct unit without diversion; we can say
a specific employee oversaw a specific treatment for 2 hours.
Conveyance and cargo inspection do not lend themselves as readily
to an hourly rate. For example, in the commercial vessel environment,
cargo is routinely offloaded into a joint holding area, and inspected
en masse, while a separate team inspects the actual vessel. Likewise,
for commercial aircraft, one employee may make rounds to inspect the
exterior of recently arrived aircraft for hitchhiking insects while
another employee inspects offloaded cargo from multiple aircraft in a
holding area and another employee inspects the cargo hold. In those
instances, CBP will provide the number of vessels or aircraft
inspected, and the collective workforce hours it took to inspect, but
there is not a distinct record of time worked on any one vessel or
aircraft, and disaggregating the total time worked in order to arrive
at that figure is unfeasible. Instead, we total the costs associated
with providing inspections annually, and divide by the number of
arrivals. This results in an average amount worked, and the fee is
pegged against that average.
The second reason, which we discuss below, is that there can be a
significant variance in the amount of time needed to oversee a
particular treatment. An in-transit cold treatment may be verified in
less than 15 minutes, whereas some fumigation treatments must be
administered over multiple days. These differing requirements for
treatment oversight lead us to believe that an hourly treatment fee
would help ensure that parties are treated equitably when assessing
treatment monitoring fees.
Under the current regulations in paragraph (h)(1), treatment
monitoring fees are assessed on a per-treatment basis, e.g., per
fumigation, cold treatment, etc. For example, a fumigation conducted
under a single tarp is a single treatment, regardless of the volume
under the tarp or the number of consignments subjected to the treatment
under the tarp at one time, and it is subject to one treatment
monitoring fee. If, however, a single consignment is split into
multiple separate enclosures due to volume, treatment monitoring fees
will be assessed for the treatments conducted in each enclosure, even
if those treatments occurred simultaneously and a single Plant Health
Safeguarding Specialist (PHSS) monitored them. In some cases,
therefore, a per treatment approach may not accurately account for the
time and effort required to perform these treatment monitoring
services.
Additionally, the per-treatment approach lacks flexibility. Trade
needs drive treatment activities, and these needs are not the same at
all ports of entry. For example, in the northeast, trade primarily
consists of large volumes of single commodity cargo, which has led to
large scale treatment enclosures and fewer monitoring events (and thus
fewer occurrences of the fee). In contrast, South Florida ports-of-
entry have more cargo diversity, resulting in small-scale treatment
enclosures and more monitoring events (and thus more occurrences of the
fee).
Since 2018, the Senate has requested that APHIS evaluate
alternatives to assessing treatment monitoring fees on a per-treatment
basis: The Senate Committee on Appropriations \51\ noted that assessing
AQI treatment monitoring fees on a per-enclosure or per-treatment basis
imposes disproportionate impacts on industry and user groups at certain
key ports of entry, including ports along the southeast United States.
The Senate Committee on Appropriations encouraged USDA to continue
conducting a study that specifically outlines the actual costs of
treatments, examines the disproportionate impact the fee has on
airports and seaports in different regions of the United States,
[[Page 54810]]
and evaluates alternative and equitable funding mechanisms.
---------------------------------------------------------------------------
\51\ 2018: https://www.govinfo.gov/content/pkg/CRPT-115srpt259/pdf/CRPT-115srpt259.pdf. 2019: https://www.congress.gov/116/crpt/srpt110/CRPT-116srpt110.pdf. 2021: https://www.congress.gov/117/crpt/srpt34/CRPT-117srpt34.pdf.
---------------------------------------------------------------------------
APHIS has holistically evaluated issues associated with treatment
monitoring. First, we have determined that there are often significant
differences in the amount of time and workload necessary to monitor
certain treatments. For example, in-transit container cold treatments
require considerably less time to monitor than a tarpaulin-less
container fumigation.
Second, we have determined that the only difference in current
actualized program costs between treatments monitored during regular
business hours and those performed on overtime is the rate of pay to
the PHSS(s) conducting the treatment monitoring. For example, APHIS
assumes the average treatment monitoring event is conducted by a GS-11
step 5 (mid-career journeyman level). If one takes the average GS-11
step 5 rate of pay across all locality pay rates,\52\ weighted by the
number of Federal employees in a given locality,\53\ in 2022 dollars,
that weighted average is $37.52 per hour. Similarly, the average
weighted overtime rate for Monday through Saturday and holidays is
$45.21 per hour and for Sundays $75.05 per hour. The additional cost to
the AQI program for treatment monitoring during overtime on Mondays
through Saturdays and holidays is $7.68 per hour, and on Sundays that
difference is $37.52 per hour (numbers may appear off due to
rounding).\54\ These cost differences have then been added to the
proposed base treatment monitoring hourly rate, and then adjusted for
projected inflation. Tables 4 and 5 of this document reflect these
calculations.
---------------------------------------------------------------------------
\52\ https://www.opm.gov/policy-data-oversight/pay-leave/salaries-wages/2022/2022-general-schedule-pay-rates.xls.
\53\ https://www.opm.gov/policy-data-oversight/data-analysis-documentation/federal-employment-reports/reports-publications/major-work-locations-of-the-executive-branch.pdf.
\54\ See supporting document ``AQI Treatment Monitoring User
Fee: Change to an Hourly Rate, and Incorporate Reimbursable
Overtime.'' See footnote 5 for instructions on how to view this and
other supporting documents on Regulations.gov/.
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Finally, APHIS has assessed the role of the party responsible for
paying the user fee associated with treatment monitoring. In cases in
which a third-party treatment provider provides the treatment, APHIS
has determined that the responsible party should be the treatment
provider. In cases in which APHIS is the treatment provider, APHIS has
determined that the responsible party should be the importer.
Based on the foregoing, the proposed rule would restructure the
treatment monitoring fee to better address the concerns of
stakeholders, increase program flexibility, and more accurately assign
costs. Specifically, we would revise Sec. 354.3(h), which lists the
treatment monitoring fees and related requirements, including those
pertaining to remittances, statements, and collections, to change the
structure of the fees from a per-treatment basis to an hourly basis and
to update those other requirements.
Change From a per-Treatment Basis to an Hourly Basis
With treatments fees assessed on an hourly rate (in quarter-hour
increments, rounded up to the next quarter-hour) instead of per-
treatment, the responsible party requesting and receiving treatment
monitoring services would only be charged for the total time the
employee spends monitoring the treatments. The hourly rate (as opposed
to the per-treatment rate) would more accurately reflect the time spent
and costs incurred for any APHIS treatment monitoring service and,
therefore, would be fairer and more transparent. The impact of changing
from a per-treatment basis to an hourly basis on an individual
treatment provider will depend upon several factors, including number
of simultaneous treatment monitoring events and duration of treatments.
To illustrate the impact of the change from per-treatment to
hourly, consider two common treatment types: In-transit container cold
treatments and tarp-less container fumigations. The average in-transit
container cold treatment requires less than 15 minutes of monitoring,
but the average tarp-less container fumigation requires over 2\1/2\
hours (2 hours and 30 minutes) of monitoring. Under the current fee
schedule, the treatment monitoring fee for both of those treatments
during regular business hours is $237, regardless of the amount of time
or effort spent monitoring a treatment. Under the proposed hourly
scheme at full implementation (FY 2028, Table 4), the in-transit
container cold treatment would cost $79.21 (assumes 15 minutes; 0.25
hours x $316.83/hour), and the tarp-less container fumigation would
cost $792.08 (assumes 2\1/2\ hours; 2.5 hours x $316.83/hour).
Additional benefits of our proposed hourly rate structure include
the following:
Multiple treatments could be monitored by a single PPQ
employee in a given hour (per local labor agreements), incentivizing
efficient operations;
The fee could be implemented in 15-minute increments,
incentivizing treatment provider investments in automation of treatment
application; and
Premium service rates would simplify treatment monitoring
services provided on reimbursable overtime: One premium rate for Monday
through Saturday and holidays, and a second premium service rate for
Sunday.
Applying the Teatment Monitoring Fee to All Treatment Types and
Treatment-Related Activities
The range of treatment related activities subject to the proposed
fee would include phytosanitary treatments under 7 CFR part 305 and in
the USDA APHIS Treatment Manual,\55\ as well as to the treatment-
preparatory activities of restacking and reconditioning, which are
discussed earlier in this document under the heading ``Definitions''
and below. The current regulations allow the fee to be applied to all
phytosanitary treatments. However, as a matter of current Agency
practice, since the 2015 rulemaking, APHIS has only applied the
treatment monitoring fee to fumigations and cold treatments, and we
have not been recovering the costs of monitoring other treatment types.
Moreover, we have not been collecting fees for monitoring activities
such as restacking and reconditioning. For a treatment to be effective,
the commodity must meet certain conditions such as sufficient space
above, below, and between commodity stacks for the movement of air, as
well as packaging which does not interfere with the treatment. If these
conditions do not exist at the time of arrival, APHIS must monitor and
safeguard restacking and reconditioning procedures that will satisfy
these conditions and make it possible to treat the commodity. The time
necessary to restack and recondition ranges from an hour to multiple
days depending upon the condition of the commodity at the time of
arrival, the type of commodity, the treatment to be performed, etc. The
practice of not collecting fees for reconditioning and restacking has
prevented us from recovering any of the costs to APHIS in monitoring
these activities. As noted earlier, we would also add definitions of
reconditioning and restacking to Sec. 354.3(a). We are proposing to
add new paragraphs (h)(1)(ii)(A) through (D), which would describe the
activities for which the treatment monitoring fees are assessed.
---------------------------------------------------------------------------
\55\ Treatment schedules will migrate to the Agriculture
Commodity Import Requirements (ACIR) Database in the future: https://www.aphis.usda.gov/aphis/resources/acir.
---------------------------------------------------------------------------
The proposed treatment monitoring user fee rates, as listed in
proposed paragraph (h)(1)(i), are listed in table 4.
[[Page 54811]]
The fees are assessed per employee, per hour conducting the service.
Table 4--Treatment Monitoring Fees (Hourly Rate)--Regular Time
----------------------------------------------------------------------------------------------------------------
FY1/1/2024 FY10/1/2024 FY10/1/2025 FY10/1/2026 FY10/1/2027
Beginning on FY2024 FY2025 FY2026 FY2027 FY2028
----------------------------------------------------------------------------------------------------------------
Treatment monitoring and related services performed during regular business hours
----------------------------------------------------------------------------------------------------------------
Regular Time Hourly Rate........ $232.97 $253.19 $273.90 $295.12 $316.83
Quarter Hour Rate............... 58.24 63.30 68.48 73.78 79.21
----------------------------------------------------------------------------------------------------------------
Applying Overtime to Treatment Monitoring Performed Outside of Regular
Business Hours
Proposed paragraph (h)(2) would clarify that overtime rates, rather
than the regular hourly rates, would apply for treatment monitoring
activities conducted outside of normal business hours. The paragraph
would further state that the treatment services overtime hourly rate
would be applied identically to reimbursable overtime and that overtime
services would incur a minimum charge of 2 hours, unless performed on
the employee's regular tour of duty and performed in direct
continuation of the regular tour of duty or begun within an hour of the
regular tour of duty. Overtime hourly rates for activities conducted on
Mondays through Saturdays and holidays and Premium hourly rates for
activities conducted on Sundays would be listed separately in a table
in paragraph (h)(2).
Table 5--Treatment Monitoring Fees (Hourly Rate) --Overtime
----------------------------------------------------------------------------------------------------------------
FY1/1/2024 FY10/1/2024 FY10/1/2025 FY10/1/2026 FY10/1/2027
Beginning on FY2024 FY2025 FY2026 FY2027 FY2028
----------------------------------------------------------------------------------------------------------------
Treatment monitoring and related services performed outside of regular business hours Monday through Saturday
and Holidays
----------------------------------------------------------------------------------------------------------------
Mon-Sat, Holiday Overtime Hourly $240.89 $261.36 $282.32 $303.93 $326.04
Rate...........................
----------------------------------------------------------------------------------------------------------------
Quarter Hour Rate............... 60.22 65.34 70.58 75.98 81.51
----------------------------------------------------------------------------------------------------------------
Treatment monitoring and related services performed on Sundays
----------------------------------------------------------------------------------------------------------------
Sunday Premium Hourly Rate...... 272.27 294.34 317.62 342.26 368.40
Quarter Hour Rate............... 68.07 73.58 79.41 85.57 92.10
----------------------------------------------------------------------------------------------------------------
Changes to Treatment Monitoring Fee Designation of Responsible Parties
and Remittance Procedures
Current paragraphs (h)(2), (3), (4), and (i), contain provisions
for collection of treatment user fees, remittance and statement
procedures, payment methods, and liability. The existing regulations in
(h)(2) and (3) specify that private entities that provide AQI treatment
services to importers are responsible for collecting the AQI treatment
user fee from the importer for whom the service is provided and for
holding those fees separately in a trust for the United States by the
entity collecting such fees. Paragraphs (h)(4) and (i) contain
provisions pertaining to remittance and statement procedures and
payment methods that are outdated, as discussed earlier in relation to
commercial railroad cars and commercial aircraft fees. Paragraph (j)
lists hourly and overtime rates for certain treatment monitoring
services pertaining to solid wood packing material.
Since implementation of the treatment fees, APHIS has received
feedback from stakeholders regarding challenges with the structure of
the fee collection and payment process. Some stakeholders expressed the
view that because the Agency did not provide an invoice for services
delivered, tracking APHIS-delivered services fell entirely on the AQI
treatment provider, which added burden and cost. Another concern was
that the requirement to set up a separate trust account for user fees
added cost and burden to business operations compared to typical
invoice and billing practices. In addition, the Agency had to develop
procedures to pursue compliance and enforcement actions when funds were
collected and held in trust, compared to more typical, and efficient,
billing and debt collection procedures.
We are therefore proposing a new approach to collection, billing,
and payment, which we discuss in detail in the paragraphs that follow.
This approach would reduce cost and burden on treatment providers by
reducing the need to create new business procedures to monitor,
collect, and pay treatment monitoring fees to APHIS, while simplifying
the Agency's procedures to address payment non-compliance.
The existing regulations in paragraph (h)(3)(i) state that in cases
in which APHIS is not providing the AQI treatment and collecting the
associated fee, AQI user fees collected from importers pursuant to
paragraph (h) shall be held in trust for the United States by the
person collecting such fees, by any person holding such fees, or by the
person who is ultimately responsible for remittance of such fees to
APHIS. We are proposing to clarify responsibility for payment by
revising paragraphs (h)(3) and (4). For treatments carried out by third
party treatment providers and monitored by APHIS, APHIS would collect
the fees from the treatment providers either at the time of service or
as described below in the discussion of the billing process. For
treatments conducted by APHIS, APHIS would collect the AQI treatment
fee at the time the treatment is applied directly from the person
receiving the services, which, in that case, would be the importer or
their agent. Because APHIS would issue a bill to all service providers
who have credit accounts in good standing, or would collect payment at
the time of service, service
[[Page 54812]]
providers would no longer be required to establish a trust fund
account.
Proposed paragraph (h)(5) would describe the billing process. User
fees for treatment monitoring would be due at the time-of-service
delivery, unless the treatment provider has established an acceptable
credit history and opened a customer account with APHIS, in which case
they can be billed by APHIS for services provided. Proposed paragraph
(h)(6) would provide the same updated link for payment information
provided in proposed paragraphs (d) and (e).
The existing regulations in Sec. 354.3 do not specify consequences
for late payment or nonpayment of AQI treatment monitoring user fees.
We propose to add new paragraphs (i)(1) to (5) to explain the
consequences of and procedures for nonpayment or late payment of
treatment monitoring user fees, including debt
collection.56 57 Consequences for nonpayment or late payment
under proposed paragraph (i) include denial of AQI services, seizure
and disposal of cargo, assessment of late fees and fees for dishonored
debt, and reporting by APHIS of delinquent debt to credit reporting
agencies. Procedures for debt collection, which would be carried out by
the USDA and the Department of the Treasury on behalf of the USDA, are
contained in proposed paragraph (i)(5).
---------------------------------------------------------------------------
\56\ Current paragraph (g) in Sec. 354.3 of the regulations
covers export certification user fees. Current paragraph (i) in
Sec. 354.3 contains requirements related to payment methods for
those export certification user fees only. This proposed rule does
not address any of those requirements. We are proposing, however, to
consolidate the export certification user fee requirements presently
found in paragraph (i) and move them to in Sec. 354.3(g)(6). This
proposed editorial change would make the regulations clearer and
easier to use.
\57\ This change will not affect export certification user fees.
---------------------------------------------------------------------------
Collectively, proposed paragraphs (h) and (i) would reduce cost and
burden on treatment providers by reducing the need to create new
business procedures to hold fees in trust, while codifying and
streamlining the Agency's procedures to address payment non-compliance.
The changes would also update addresses and provisions pertaining to
payment methods in a manner consistent with the updates to the
corresponding requirements for commercial railroad cars and aircraft.
Technical Amendments
We are proposing to remove current paragraph (j), which lists
hourly and overtime charges for certain treatment monitoring services
pertaining to solid wood packing material. Prior to the adoption of
International Standards for Phytosanitary Measures (ISPM) 15 \58\ in
2002, APHIS had specific regulations in 7 CFR 319.40-5(g) and (h)
regarding solid wood packing material and merchandise from the Peoples
Republic of China, including Hong Kong, with Sec. 319.40-5(h)
referring to the fees in Sec. 354.3(j). Adoption of ISPM 15 made Sec.
319.40-5(g) and (h) obsolete, and APHIS removed them in 2005. Though
APHIS did not also remove Sec. 354.3(j) from the regulations at that
time, it, too, has become obsolete because there are no other sections
of APHIS' regulations pointing to or relying upon Sec. 354.3(j).
---------------------------------------------------------------------------
\58\ https://www.fao.org/3/mb160e/mb160e.pdf.
---------------------------------------------------------------------------
Records Retention
To improve monitoring, compliance, and enforcement of this
regulation, we are proposing to add a new paragraph (j), which would
contain retention requirements for records related to AQI user fees.
Proposed paragraph (j)(1) would provide that entities responsible for
collecting and paying the fees and their agents would be responsible
for maintaining all records required under Sec. 354.3, as well as
legible copies of contracts and other agreements made between
responsible persons and their agents. Under proposed paragraph (j)(2),
all parties responsible for collecting and paying the fees would have
to maintain sufficient documentation for APHIS, CBP, and authorized
representatives to verify the accuracy of the fee collections and
remittance worksheets. Such information would have to be made available
for inspection upon APHIS and CBP's demand. Such documentation would be
required to be maintained in the United States for a period of 5 years
from the date of fee calculation. Each entity covered by this proposed
requirement would have to provide to APHIS and CBP the name, address,
and telephone number of a responsible officer who is able to verify any
statements or records required to be filed or maintained under this
section and to promptly notify APHIS and CBP of any changes in the
identifying information previously submitted. Currently, CBP conducts
GAO yellow book standard audits of the commercial aircraft fee and
international air passenger fee on APHIS' and CBP's behalf. APHIS seeks
to expand this arrangement to include audits of the AQI program's
commercial railroad car fee and international cruise passenger fee.
Severability
Finally, we are proposing to add a new Sec. 354.3(k),
``Severability,'' to address the possibility that this rule, or
portions of this rule, may be challenged in litigation. It is APHIS'
intent that the individual sections of this rule be severable from each
other, and that if any sections or portions of the regulations are
stayed or invalidated, the validity of the remainder of the sections
shall not be affected and shall continue to be operative.
Executive Orders 12866 and 13563, and Regulatory Flexibility Act
This proposed rule has been determined to be significant under
section 3(f)(1) of Executive Order 12866, ``Regulatory Planning and
Review,'' as amended by Executive Order 14094, ``Modernizing Regulatory
Review,'' and, therefore, has been reviewed by the Office of Management
and Budget.
We have prepared an economic analysis for this proposed rule. The
economic analysis provides a cost-benefit analysis, as required by
Executive Orders 12866 and 13563, ``Improving Regulation and Regulatory
Review,'' which direct agencies to assess all costs and benefits of
available regulatory alternatives and, if regulation is necessary, to
select regulatory approaches that maximize net benefits (including
potential economic, environmental, public health and safety effects,
and equity). Executive Order 13563 emphasizes the importance of
quantifying both costs and benefits, of reducing costs, of harmonizing
rules, and of promoting flexibility. The economic analysis also
provides an initial regulatory flexibility analysis that examines the
potential economic effects of this proposed rule on small entities, as
required by the Regulatory Flexibility Act. The economic analysis is
summarized below. Copies of the full analysis are available by
contacting the person listed under FOR FURTHER INFORMATION CONTACT or
on the Regulations.gov website (see ADDRESSES above for instructions
for accessing Regulations.gov).
We do not have sufficient information to certify that this proposed
rule will not have significant economic impact on a substantial number
of small entities. We have therefore included an Initial Regulatory
Flexibility Analysis exploring the impacts on small entities. We invite
comments on potential effects. In particular, we are interested in
determining the number and kind of small entities that may incur
benefits or costs from the implementation of this proposed rule.
The Food, Agriculture, Conservation and Trade (FACT) Act of 1990
(as amended) [21 U.S.C. 136a] authorizes the Secretary of Agriculture
to prescribe and collect fees sufficient to cover the
[[Page 54813]]
cost of providing agricultural quarantine and inspection services in
connection with the arrival at a port in the customs territory of the
United States, or the preclearance or pre-inspection at a site outside
the customs territory of the United States, of an international
passenger, commercial vessel, commercial aircraft, commercial truck, or
railroad car, and to cover the cost of administering the AQI program.
The United States Department of Agriculture's (USDA's) Animal and Plant
Health Inspection Service (APHIS) Plant Protection and Quarantine (PPQ)
is responsible for developing and setting the Agricultural Quarantine
and Inspection (AQI) user fee schedule, and related regulatory policy.
Periodically, APHIS updates the schedule of rates paid by users via the
rulemaking process. Due to a variety of factors, the current AQI fee
schedule results in insufficient collections to achieve full cost
recovery.
APHIS is proposing a number of revisions to the regulations that
govern the oversight of phytosanitary treatments, user fee rates, and
related regulatory requirements for maritime vessels, commercial
trucks, commercial railroad cars, commercial aircraft, and
international passengers on airlines and cruise ships. The proposed
revisions would incorporate adjustments to the cost model that is used
to calculate the fees.
This proposed rule would also eliminate an exemption from the
commercial aircraft fee that currently applies to commercial aircraft
with 64 or fewer seats that meet certain regulatory requirements;
eliminate an exemption from the commercial vessel fee that currently
applies to commercial barges operating between Canada and the United
States that meet certain regulatory requirements; increase the ``per
arrival'' multiple used to calculate the fee for a multiple-use
transponder for commercial trucks; as well as increase the ``per
arrival'' multiple used to calculate the prepaid railroad car fee and
apply the fee to all arriving railroad cars.
This proposed rule also restructures the treatment monitoring fee
from a ``per treatment'' basis to a three-tier, per employee, hourly
rate system; applies the treatment monitoring fee to all approved
phytosanitary treatments; incorporates associated actions, such as
monitoring restacking and reconditioning, into the fee; and
incorporates monitoring destructions and other phytosanitary mitigation
measures, such as seed grinding and steam cleaning, into the fee. The
proposed rule would also implement a billing process for the treatment
monitoring fee and move responsibility for paying the fee from the
importer of record to the party applying the treatment.
This proposed rule would also update remittance procedures to
facilitate timely submission of fees. Finally, we have made editorial
revisions throughout the proposed rule in order to clarify intent in
the regulations.
The AQI Program implements a continuum of exclusion strategies and
activities that mitigate the plant and animal health risks associated
with the spread of pests and diseases due to global trade,
international travel, or the smuggling of prohibited agricultural and
related products. The personnel and support to carry out an effective
import and pest exclusion program begins before and continues after the
port-of-entry where inspections often take place. APHIS uses an ABC
Model to calculate the individual user fees. First, costs are allocated
to a series of activities. Next, the costs assigned to those activities
are allocated to the fee areas based on the level of effort associated
with each fee area. For example, the costs associated with the cargo
inspection activity (which include the costs of providing the service,
as well as the administrative and overhead costs associated with
providing the service) are allocated to the commercial vessel, truck,
railroad car, and aircraft fees, based on the level of effort in each
of those fee areas. This cost allocation approach avoids cross-
subsidization (e.g., cargo inspection costs do not get assigned to
passengers or treatment users).
When the cost of providing AQI services and the fees paid to fund
these services do not align, adjustments are a necessary step in
reaching the goal of full cost recovery. Services in the AQI program
must be provided, but when the user fee is not covering the costs, the
user of the service is not bearing the true cost of providing the
service. This proposed rule would benefit the public by continuing to
ensure that the fees received from users for providing necessary AQI
services align with the expenditures associated with providing those
services.
AQI services protect American agriculture and natural resources.
The spread of invasive species harms domestic agricultural producers
and damages the natural environment. Imported freight constitutes a
major phytosanitary risk. The wide diversity of origins and commodities
present multiple opportunities for pests to infest a product or wood
packing material. AQI services are provided to mitigate such
phytosanitary risks. To ensure that the expenditures on AQI services
and the fees applied to those services align, adjustments to the fees
are necessary. Those most likely to be impacted should this proposed
rule be finalized are international air and sea passengers, businesses
within the truck, rail, sea, and air transportation sectors, and
providers of treatment services. While users of AQI services do incur
costs in the form of user fees, these user fees help the government to
recover the costs of providing AQI services. However, the associated
revenues do not currently align with the costs of providing these AQI
services and administering the AQI program.
Individual importers or passengers may experience some financial
burden from the establishment of or increase in user fees (or relief if
a fee is reduced), but the AQI services are already being provided and
thus are already counted as government costs. The revenue from user
fees for services provided are intended to cover the expenditures for
those services, a concept known as transfer payments. Examples of
transfer payments include fees paid to government agencies for services
provided by the agency. Federal regulations with transfer payments are
assumed to have a one-to-one effect, balancing benefits and costs.\59\
The benefits and costs, as well as the annualized transfer payments are
summarized in table A.
---------------------------------------------------------------------------
\59\ Transfer payments are noted by the Office of Management and
Budget to include ``Fees to government agencies for goods or
services provided by the agency (monetary transfers from fee payers
to the government--the goods and services are already counted as
government costs and including them as private costs would entail
double counting).'' Federal regulations with transfer payments are
assumed to have a one-to-one effect on benefits and costs. See:
Regulatory Impact Analysis: A Primer, page 8. https://www.reginfo.gov/public/jsp/Utilities/circular-a-4_regulatory-impact-analysis-a-primer.pdf.
[[Page 54814]]
Table A--Accounting Statement of Costs, Benefits, and Transfers
Associated With the Rule
------------------------------------------------------------------------
------------------------------------------------------------------------
Benefits
------------------------------------------------------------------------
Non-Quantified Benefits........... The proposed rule would better align
AQI expenditures and revenues by
class. Transfer payments balance the
costs and benefits of the program.
------------------------------------------------------------------------
Costs
------------------------------------------------------------------------
Non-Quantified Costs.............. Realigned AQI user fees are intended
to cover the costs of providing AQI
services. User fees transfer the
cost of those services from the
government to the users.
------------------------------------------------------------------------
Transfers
------------------------------------------------------------------------
Annualized Transfers by user class 7% discount 3% discount
1 2.............................. rate rate
-------------------------------------
Air Passengers................ $471,200,000 $472,500,000
Commercial Aircraft........... 290,200,000 291,700,000
Commercial Rail............... 25,730,000 25,920,000
Commercial Truck \3\.......... 113,500,000 114,100,000
Commercial Vessel............. 186,100,000 186,400,000
Cruise Vessel Passenger....... 20,120,000 20,170,000
Treatments ($/Hr.)............ 14,430,000 14,520,000
-------------------------------------
Total \4\................. 1,121,280,000 1,125,310,000
------------------------------------------------------------------------
\1\ Annualized value of transfers from 2024 through 2028; discounted at
7 and 3 percent, 2022 dollars.
\2\ Estimates of user fee collections (transfers) based on individual
fee levels for each year of the 5-year implementation schedule (see
table B) multiplied by an estimate of the activity level in each fee
category. This activity level estimate is based on the average number
of each category of arrivals from FY 2017-2019, the 3 years for which
clean data are available.
\3\ This estimate is based on truck arrivals from FY 2017-2019. To
account for the change in both the fee level and transponder cap, the
estimate uses a distribution of one million single payer crossings and
125,000 transponders.
\4\ Totals may not sum due to rounding.
The proposed fee schedule would better reflect the costs of AQI
services provided to commercial cargo vessels, commercial trucks,
commercial cargo railroad cars, commercial aircraft, and international
air and sea passengers arriving at U.S. ports; and it would more
accurately assign costs to treatment monitoring activities (table B).
Table B--Current and Proposed AQI User Fee Rates
[Dollars]
--------------------------------------------------------------------------------------------------------------------------------------------------------
Proposed fees
Fee area Current fee -------------------------------------------------------------------------------
2024 2025 2026 2027 2028
--------------------------------------------------------------------------------------------------------------------------------------------------------
Air Passenger........................................... 3.83 4.29 4.44 4.60 4.76 4.93
Commercial Aircraft..................................... 225.00 288.41 309.00 330.07 351.64 373.68
Commercial Cargo Vessel................................. 825.00 3,219.29 3,302.23 3,386.20 3,471.18 3,557.18
Commercial Truck........................................ 7.29 11.40 12.40 13.45 14.50 15.55
Commercial Cargo Railroad Car........................... 2.00 5.81 6.51 7.23 7.97 8.72
Cruise Vessel Passenger................................. 1.68 1.20 1.25 1.29 1.34 1.39
Treatment:
(per treatment)..................................... 237.00 .............. .............. .............. .............. ..............
(per hour).......................................... .............. 232.97 253.19 273.90 295.12 316.83
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Air Passengers
The air passenger fee would increase from $3.83 to $4.93 by 2028.
The total fee increase of $1.10 would be approximately a 28.7 percent
increase from current fees, but only a 0.1 percent increase in the
average price of an international round-trip airfare. Limitations in
the amount and nature of data available to the agency make it difficult
to develop specific conclusions as to how small fee changes will affect
international air travel overall. However, any change in international
air travel due to a change of less than one dollar in the price of
international airfare is likely to be small.
Commercial Aircraft
The commercial aircraft fee would increase from $225 to $373.68 per
arrival by 2028. This increase of $148.68 would be approximately a 66
percent increase from the current fees. Between 2013 and 2019 the
volume of imports into the United States by air increased by eight
percent (82 million kg) and the value increased by 57 percent in
constant dollars. Even after the 66 percent increase, the commercial
aircraft fee is still the equivalent of 0.05 percent of the value of
goods being imported by air. In terms of the cargo
[[Page 54815]]
alone, the 2028 commercial aircraft fee rate under this proposal would
represent approximately $0.069 in dollars-per-kilogram imported by air
generally. In addition, the commercial aircraft user fee constitutes a
small portion of the expenses associated with commercial aircraft. And
moreover, most international arrivals have passenger airfares as a
primary revenue source. Even with the commercial aircraft fee
increasing by $148.68 by 2028, the commercial aircraft user fee would
be the equivalent to approximately 5 minutes of operating costs for
aircraft.\60\ Limitations in the amount and nature of data available to
the agency make it difficult to develop specific conclusions as to how
such a fee change will affect international arrivals of commercial
aircraft overall. However, the increase in the AQI commercial aircraft
fee is likely to have a limited impact on aircraft operators.
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\60\ Federal Aviation Administration. Economic Values for
Investment and Regulatory Decisions--Chapter 4: Aircraft Operating
Costs. March 2021 Update. Retrieved on June 8, 2022, from https://www.faa.gov/sites/faa.gov/files/regulations_policies/policy_guidance/benefit_cost/econ-value-section-4-op-costs.pdf.
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Small Aircraft Exemption
The commercial aircraft user fee is not currently applied to the
international arrivals of certain commercial aircraft with 64 or fewer
seats. Commercial aircraft with 64 or fewer seats comprised
approximately 10 percent of arriving international flights from 2016 to
2018. This proposed rule would result in the removal of this exemption.
The commercial aircraft fee is based on the average cost of
clearing commercial aircraft and their cargo. The cost associated with
any specific aircraft, whether small or large, also depends on a
variety of other factors because the phytosanitary risk posed by a
particular aircraft is based upon the country of origin, countries
transited, type and volume of cargo, country of origin of the cargo,
and environmental conditions at point of origin and final destination.
These costs are not currently borne by all operators of commercial
aircraft with fewer than 65 seats arriving internationally.
Domestic flights are not subject to the commercial aircraft fee.
For most operators of small commercial aircraft, domestic flights are
the greatest portion of their operations and associated revenue. The
removal of the exemption would only apply to international arrivals of
aircraft with fewer than 65 seats. Approximately 7 percent of the
flights of the top 5 small aircraft operators, and less than 5 percent
of the flights of the top 10 operators, are international arrivals.
Because we do not have explicit data on the per-flight revenue, profit
margins, and competitive landscape affecting international arrivals of
commercial aircraft with 64 or fewer seats, we cannot make specific
conclusions as to how the collection of this user fee will affect
individual businesses. We are inviting the public to provide data
relevant to these and other questions concerning the operation of
commercial aircraft with fewer than 65 seats arriving internationally.
We also invite public comment on other matters related to the removal
of this exemption.
Commercial Cargo Vessel
The commercial cargo vessel fee would increase from $825 to
$3,557.18 by 2028. The proposed fee better accounts for the level of
effort it takes to inspect the average ship and its cargo and reflects
the expanded capacity of modern container ships. Even with the
commercial vessel fee increasing by 331 percent to $3,557.18 by 2028,
the user fee would still represent a fraction of the value of goods
being imported by vessel generally (0.02 percent). The proposed
commercial vessel fee rate in 2028 dollars-per-kilogram for vessel
cargo generally would be less than $0.0006. The proposed commercial
vessel fee remains very small relative to other vessel operating
expenses. It is equivalent to approximately 2 percent of a single day's
fuel consumption for a moderately sized container ship. Limitations in
the amount and nature of data available to the agency make it difficult
to develop specific conclusions as to how the proposed fee changes will
affect international arrivals of commercial cargo vessels overall.
However, the proposed change to the commercial vessel fee seems likely
to have a limited impact on the operations of commercial vessels.
Canadian Barge Exemption
From 2016 through 2018, an annual average of 1,405 commercial
barges arrived from Canada into the United States, most of which are
exempt from the current commercial vessel AQI fee. Vessel companies and
ports facilitating the movement of currently exempted barge shipments
from Canada and the United States would be affected if the exemption
were removed. APHIS has concluded that barges from Canada that meet the
user fee exemption do not pose less of a phytosanitary risk than barges
travelling from other countries or other vessel types travelling from
Canada. At the 2028 rate, the commercial cargo vessel fee would be
approximately $0.001 per kilogram (kg) imported by barge. Because we do
not have explicit data on international barge traffic revenue, profit
margins, and the competitive landscape affecting arrivals of currently-
exempt barges from Canada, we cannot make specific conclusions as to
how the collection of this user fee will affect individual businesses.
We are inviting the public to provide data relevant to these and other
questions concerning the operation of currently-exempt barges from
Canada. We also invite public comment on other matters related to the
removal of this exemption, or on the proposed rule generally.
Commercial Truck
The commercial truck fee would increase from $7.29 to $15.55 \61\
by 2028, an increase of $8.26 per truck arrival. Between 2013 and 2019
imports into the United States by truck increased by 397 million kg.
Even after a 114 percent increase, the user fee of $15.55 proposed in
2028 for a commercial truck entering the U.S. would be the equivalent
of 0.034 percent of the average value of goods imported by truck. The
proposed fee in 2028 in dollars-per-kilogram for truck cargo generally
would be approximately $0.0014. In addition, this user fee would be the
equivalent of the operating expenditures of a truck transporting goods
about nine miles. Limitations in the amount and nature of data
available to the agency make it difficult to develop specific
conclusions as to how these proposed fee changes will affect
international arrivals of commercial trucks overall. However, the
impact of this proposed fee on the operations of commercial trucks
seems likely to be limited.
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\61\ $15.59 rounded down to the nearest $0.05 (five-cent)
increment. At CBP's request, we rounded down to the next $0.05
(five-cent) increment to facilitate operations at the border. CBP
has indicated that making change at the penny level for single-payer
trucks would have a negative impact on wait times at the land
border.
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Commercial Cargo Railroad Car
The commercial cargo railroad car fee would increase from $2 to
$8.72 per arriving railroad car by 2028, a total increase of $6.72.
Between 2013 and 2019, imports into the United States by rail remained
relatively constant, but technology improvements have allowed for a
reduction in the number of railroad cars assessed the commercial
railroad car fee. Even after a total increase of approximately 337
percent, the commercial cargo railroad car fee would still be the
equivalent of approximately 0.029 percent of the value of goods being
imported on by railroad car. The
[[Page 54816]]
proposed fee in 2028 in dollars-per-kilogram for commercial railroad
cars generally would have been approximately $0.0004. Limitations in
the amount and nature of data available to the agency make it difficult
to develop specific conclusions as to how these proposed fee changes
will affect international commercial cargo railroad arrivals overall.
However, the proposed change to this fee seems likely to have a limited
impact on commercial cargo rail operations.
Cruise Vessel Passenger
The cruise vessel passenger fee would decline by 31 percent
initially, and still be 21 percent lower than the current fee by 2028,
an overall decline of $0.29 per passenger arrival. Limitations in the
amount and nature of data available to the agency make it difficult to
develop specific conclusions as to how small fee changes will affect
international cruise passenger arrivals overall. However, a decrease of
$0.29 in the fee represents less than a 0.02 percent decrease in the
cost of a 7-day cruise.
Treatment Monitoring
APHIS monitors phytosanitary treatments to ensure that they are
conducted as prescribed. Shifting the treatment monitoring fee to an
hourly basis would reduce the cost of treatment monitoring for many
treatment providers. Multiple treatments can often be monitored by a
single PPQ employee in a given hour, and the proposed hourly fee can be
implemented in 15-minute increments. The impact of shifting to an
hourly fee would vary from user to user, as the cost would depend on
the amount of time spent monitoring treatments rather than on the
number of treatment enclosures. It is, however, likely that impacts
from the proposed changes would be lower under an hourly fee than they
would be under the current per-treatment fee. Providers of some
treatment services are not currently subject to the treatment
monitoring fee and would be impacted by the proposed rule. Because we
do not have explicit data on those providers affected by the proposed
changes, we cannot make specific conclusions as to how the collection
of this user fee will affect individual businesses. We are inviting the
public to provide data relevant to these and other questions concerning
treatment operations.
APHIS estimates the total annualized cost of the paperwork and
recordkeeping associated with this proposed rule to be $104,039.
Reporting and recordkeeping requirements associated with the proposed
rule are discussed in the rule under the heading ``Paperwork Reduction
Act.''
While the Small Business Administration has set small-entity
standards for the transportation sectors, the size data do not
distinguish between transportation firms that operate internationally
and those firms that only operate within the United States. Most
businesses that would be affected by the rule are likely to be small.
This RIA and initial regulatory flexibility analysis addresses possible
effects of the proposed rule on small-entity stakeholders and their
operations.
We recognize we may not have all relevant information concerning
economic impacts at this time. Therefore, we invite the public to
comment on the proposed rule and provide any additional relevant
information. We also invite public comments on alternatives that may
achieve the objective of this proposed rule.
Executive Order 12988
This proposed rule has been reviewed under Executive Order 12988,
``Civil Justice Reform.'' If this proposed rule is adopted: (1) All
State and local laws and regulations that are inconsistent with this
rule will be preempted; (2) no retroactive effect will be given to this
rule; and (3) administrative proceedings will not be required before
parties may file suit in court challenging this rule.
Executive Order 13175
This proposed rule has been reviewed in accordance with the
requirements of Executive Order 13175, ``Consultation and Coordination
with Indian Tribal Governments.'' Executive Order 13175 requires
Federal agencies to consult and coordinate with tribes on a government-
to-government basis on policies that have tribal implications,
including regulations, legislative comments or proposed legislation,
and other policy statements or actions that have substantial direct
effects on one or more Indian Tribes, on the relationship between the
Federal Government and Indian Tribes or on the distribution of power
and responsibilities between the Federal Government and Indian Tribes.
APHIS has determined that this proposed rule, if finalized, does
not have substantial direct effects on one or more Tribes; however,
APHIS continues to seek opportunities to engage Tribal nations and
their communities on new rulemaking. Accordingly, on July 18, 2022,
APHIS held an initial listening session for Tribal nations regarding
the provisions of the rule. No comments or concerns were received
regarding that listening session. However, should a Tribe request
consultation, APHIS will collaborate with the Office of Tribal
Relations to ensure meaningful consultation occurs. APHIS is committed
to full compliance with the provisions of Executive Order 13175.
Paperwork Reduction Act
In accordance with section 3507(d) of the Paperwork Reduction Act
of 1995 (44 U.S.C. 3501 et seq.), the information collection or
recordkeeping requirements included in this proposed rule have been
submitted for approval to the Office of Management and Budget (OMB).
Written comments and recommendations for the proposed information
collection should be sent within 60 days of publication of this
document to www.reginfo.gov/public/do/PRAMain. Find this particular
information collection by selecting ``Currently under Review--Open for
Public Comments'' or by using the search function. Please send a copy
of your comments to: (1) Docket No. APHIS-2022-0023, Regulatory
Analysis and Development, PPD, APHIS, Station 3A-03.8, 4700 River Road
Unit 118, Riverdale, MD 20737-1238, and (2) Clearance Officer, OCIO,
USDA, room 404-W, 14th Street and Independence Avenue SW, Washington,
DC 20250. A comment to OMB is best assured of having its full effect if
OMB receives it within 30 days of publication of this proposed rule.
The processes involving the agricultural quarantine and inspection
user fees and changes proposed in this document involve information
collection, reporting, and recordkeeping requirements in the form of
paper, electronic submissions, and information systems. In conjunction
with the proposed changes to provide for cost recovery for services, we
have considered each proposed change and their impact(s) on these
burdens. These changes concern adjusting fee amounts, adjusting caps on
certain prepaid fees, removing exemptions, changing certain fees from
flat to hourly rates, updating requirements for fee remittances and
statement, and providing electronic payments and statement options.
User fee information collection activities are reported in
information collection 0579-0055. This proposed rule will add
additional respondents to activities related to preparation and
submission of monthly statement submissions for commercial railroad
cars and commercial aircraft, and user fees for international air and
cruise passengers. There is also one new information collection
activity that formalizes new recordkeeping and record retention
requirements. The new
[[Page 54817]]
recordkeeping burden is associated with applications for credit
accounts and requests for services; collection of user fees in
connection with the arrival and inspection of commercial vessels,
railroad cars, commercial aircraft, trucks, and international air and
cruise passengers; collection of user fees for conducting and
monitoring treatments; and issuing and use of electronic transponders.
Changes prescribed in this proposed rule may increase or decrease
burden on respondents and affect one or multiple fee categories.
a. Commence Charging for Empty Railroad Cars.
(1) We will start charging for empty railroad cars. The changes in
burdens here would be two-fold: (a) We will need to identify the burden
involved with existing companies paying for loaded railroad cars to
also identify how many empty railroad cars they will now be paying for
and (b) possible burdens involved with any railroad company who is in
the business of only moving empty railroad cars.
(2) Our current burden assumption includes 5 minutes per railroad
company to submit user fees for their railroad cars. We assume if we
commence charging for empty railroad cars, there would be an overall
increase in burden of 5 percent in that time will be spent determining
how many empty railroad cars each of the current railroad companies
remitting the fees must spend to identify how many empty cars they
would then be remitting for. A 5 percent increase in the 5-minute time
value is 0.25 minutes or 15 seconds.
(3) In addition, we assume there is one railroad company whose
business is only moving empty railroad cars, and that company would be
required to start paying user fees for their empty cars. With railroad
companies remitting fees monthly, we assume this railroad company would
have the new burden of remitting fees 12 times per year. These
assumptions on the impact on the burdens of the Federal Government
commencing charging for empty railroad cars increases the overall
estimated burden on the public by 2 hours.
b. Removal of the Exemption for Barges. Currently barges are
eligible for exemption if they travel solely between the United States
and Canada; that do not carry cargo originating from countries other
than the United States or Canada; that do not carry plants or plant
products; that do not carry animals or animal products; and that do not
carry soil or quarry products from areas in Canada listed in 7 CFR
319.77-3 as being infested with gypsy moth. As discussed above, we are
proposing to eliminate this exemption. Department of Transportation
Statistics identify 76 barge companies operating between the United
States and Canada. We make the assumption barge companies move once a
month, so the increase in burden is 912 occurrences. Our current burden
assumption includes less than 1 minute per barge company to submit user
fees in addition to their U.S. Customs and Border Protection fee. The
overall impact of this change would be an increase of less than 1 hour.
c. Commercial Vessel Fee Exemption for Commercial Cruise
(Passenger) Vessels That Carry Passengers Paying the International
Passenger Fees. The commercial vessel fee would not apply to commercial
cruise (passenger) vessels that carry passengers paying the
international passenger fees under paragraph (f) of Sec. 354.3,
because the cost of inspecting the entirety of the vessel is included
in the international cruise passenger fee, and cruise vessels do not
generally carry commercial cargo. In October 2022, we estimated there
will be 29,009 cruise vessels trips that would be subject to paying the
vessel fee over a 6-year period. This yields about 4,834 cruise vessels
trips per year. [29,009/6 = 4,834]. Applying an estimate that cruise
ships run 12 times a year, we obtain the number of impacted commercial
cruise (passenger) vessels to be 403 per year. [4,834/12 = 403] and the
number of paying cruise vessel companies to be 14. Our current burden
assumption includes less than 1 minute per commercial cruise
(passenger) vessel company to submit user fees in addition to their
U.S. Customs and Border Protection fee. The overall impact of this
change would be a decrease of less than 1 hour.
d. Commence Charging for Empty Trucks and Truck Cabs. We are
proposing to add a sentence to paragraph (c)(1) of Sec. 354.3 stating
that the AQI user fee would apply to all commercial trucks, regardless
of what they are carrying, including empty trucks and truck cabs.
Because many truck haul freight in one direction across the U.S.
border, and because there may be additional movements of empty trucks
and truck cabs, we estimate there are 1,521,600 empty truck and truck
cab entries per year which could have an increased burden of less than
1 minute each. These entries are a mix of both single payer entries and
annual pass owner entries. The overall impact of this change would be
an increase of 1,268 respondent hours per year.
e. Commercial Railroad Companies' Use of Remittance Worksheets. As
discussed above, we are planning to use remittance worksheets for the
respondents to submit along with payments. This is designed to simplify
the data elements respondents report. We assume this change will cut
the time it takes for 27 railroad companies to remit their payments by
a third. 27 commercial railroad companies remitting 12 times a year is
324 submissions per year. We assume it ordinarily takes about 5 minutes
per submission, so with a reduction of this amount by one third, we
estimate the overall impact of this change would be decrease of 9
respondent hours per year.
f. Commercial Railroad Companies' Requirement to Complete Transfers
of Responsibility. Proposed paragraph (d)(6)(ii) of Sec. 354.3 would
state that the agent or other responsible person for a payment remains
the agent or responsible person unless a transfer of responsibility is
approved by APHIS. Before such a transfer could take place, the agent
or responsible person would first have to contact APHIS to initiate the
transfer. Once APHIS approves the transfer, the new agent or
responsible person would assume all responsibilities for ensuring
compliance with the requirements of part 354. We estimate 12 commercial
railroad companies may need to exert time and effort to do so, which
would create a new burden for them. We estimate each action will take
10 minutes leading to an overall impact of this new requirement to be
an increase in two respondent hours per year. We estimate each action
will take 10 minutes leading to an overall impact of this new
requirement to be an increase in 2 respondent hours per year.
g. Removal of Aircraft Exemption with 64 or Fewer Seats. The
proposed removal of paragraph (e)(2)(iv) of Sec. 354.3, which exempts
from AQI user fees certain passenger aircraft with 64 or fewer seats
will create a new burden for those aircraft. Of an estimated 331
airlines with arriving international flights into the U.S. we estimate
19 percent of these airlines fall into this exemption category or 63
airlines. [331 * 19% = 63] With airlines being required to remit fees
four times per year, this leads to an estimated 252 possible new burden
actions. Our current burden assumption includes 5 minutes per
submission, so the overall impact of the removal of this exemption on
respondents would be an increase of 21 respondent hours per year.
h. Commercial Airlines' Use of Remittance Worksheets. As discussed
above, we are planning to use remittance worksheets for the respondents
to submit along with
[[Page 54818]]
payments. This is designed to simplify the data elements respondents
report. We assume this change will cut the time it takes for 331
airlines to remit their payments by a third. 331 airlines remitting 4
times a year is 1324 submissions per year. We assume it ordinarily
takes about 10 minutes per airline submission, so with a reduction of
this amount by one third, we estimate the overall impact of this change
would be decrease of 74 respondent hours per year.
i. Change in Commercial Airlines' Fee Remittances to Monthly rather
than Quarterly. Proposed changes to paragraph (e)(3) of Sec. 354.3
include decreasing the period for payment of the fees and submission of
remittance reports from quarterly to monthly. This would triple the
current burden on these respondents; however, it is important to note
burden (h) above will also have an impact on commercial airlines'
burden. Using an estimated 331 airlines x 3 (a tripling of their
current submission frequency) = 993 new occurrences. These occurrences
will take 6.67 minutes [\2/3\ of the normal 10 minutes submission time
assumption used as a starting point for burden (h)]/60 minutes--an
overall impact of this change to be an increase of 110 respondent hours
per year.
j. Commercial Airlines to Make Refunds of AQI International Airline
Passenger Fees to Ticket Purchasers when Passengers Do Not Ultimately
Take Their Journey. The ticket issuing entity would have to submit a
revised remittance worksheet showing the number of passengers who
traveled and those passengers that did not ultimately travel who
received user fee reimbursements. In keeping with other proposed
changes to remittance timeframes, the revised remittance worksheet
would be completed and filed for each month during which the ticket
issuing entity certifies that there was an increase or decrease in the
number of passengers and AQI fees collected, using the procedure
described in Sec. 354.3(f)(5)(iv) of this proposed rule. This
represents an increase in respondent burden hours. We estimate this
would affect one third of the 331 airlines. 331 airlines x 12
remittances per year per airline = 3972 occurrences. 3972 occurrences/3
impacted = 1324 occurrences with increased burdens. 1324 occurrences
with increased burdens x 3 minutes/60 minutes per hour = an estimated
increase of 66 respondent burden hours per year.
k. Proposed Commencing of Charging the Phytosanitary Treatment User
Fees Under 7 CFR part 305 and in the USDA, APHIS Treatment Manual and
Treatment Preparatory Activities of Restacking and Reconditioning. We
are proposing to add new paragraphs (h)(1)(ii)(A) through (D) to Sec.
354.3, which would describe the activities for which the treatment
monitoring fees are assessed. Charging for these activities will cause
an increased burden for these respondents. We estimate there will be
about 1,654 additional irradiation treatments and 1,190 heat
treatments. 1,654 + 1,190 = 2,844 new chargeable treatments. 2,844 x an
estimated 5 minutes per treatment = an estimated increase of 237
respondent burden hours per year.
l. New Billing Process for Treatment Monitoring. Above we have
proposed a new billing process in paragraph (h)(5) of Sec. 354.3 which
would describe the billing process. User fees for treatment monitoring
would be due at the time-of-service delivery, unless the treatment
provider has established an acceptable credit history and opened a
customer account with APHIS, in which case they can be billed by APHIS
for services provided. There are about 50 treatment facilities of which
we estimate about half would want to be billed. One half of 50
treatment facilities = 25 facilities who would want to be billed. Timed
trials show the application for an account takes approximately 8.4
minutes to complete. 25 x 8.4 minutes = 3.5 hours new burden during the
initial year half of the treatment facilities would decide to open
accounts. The assumptions made and this approach are considered
reasonable.
m. Consequences for Late Payment or Nonpayment of AQI Treatment
Monitoring User Fees. The existing regulations in Sec. 354.3 do not
specify consequences for late payment or nonpayment of AQI treatment
monitoring user fees. To remedy that omission, we propose to add new
paragraphs (i)(1) to (5) to Sec. 354.3 to explain the consequences of
and procedures for nonpayment or late payment of treatment monitoring
user fees, including debt collection. We estimate six treatment
facilities will incur an increased time burden of 20 minutes each for a
total estimated increase in respondent burden of 2 hours.
n. Reduction in the Need to Create New Business Procedures to Hold
Fees in Trust. Above, we propose in paragraphs (h) and (i) of Sec.
354.3 to reduce cost and burden on treatment providers by reducing the
need to create new business procedures to hold fees in trust, while
codifying and streamlining the Agency's procedures to address payment
non-compliance. We estimate this will save 50 treatment facilities 4.75
hours per year for a total of 237 reduction in respondent burden hours
each year.
o. Records Retention Requirements. To improve monitoring,
compliance, and enforcement of this regulation, we are proposing to add
a new paragraph (j) to Sec. 354.3, which would contain retention
requirements for records related to AQI user fees. Proposed paragraph
(j)(1) would state that entities responsible for collecting and paying
the fees and their agents would be responsible for maintaining all
records required under Sec. 354.3, as well as legible copies of
contracts and other agreements made between responsible persons and
their agents. Under proposed paragraph (j)(2), all parties responsible
for collecting and paying the fees would have to maintain sufficient
documentation for APHIS, CBP, and authorized representatives to verify
the accuracy of the fee collections and remittance worksheets. Such
information would have to be made available for inspection upon APHIS
and CBP's demand. Such documentation would be required to be maintained
in the United States for a period of 5 years from the date of fee
calculation. Each entity covered by this proposed requirement would
have to provide to APHIS and CBP the name, address, and telephone
number of a responsible officer who is able to verify any statements or
records required to be filed or maintained under this section and to
promptly notify APHIS and CBP of any changes in the identifying
information previously submitted. We estimate there to be approximately
500 entities affected by this requirement. At 1 minute per entity for
records retention, we estimate the increase in respondent burden to be
about 8 hours.
In accordance with section 3507(d) of the Paperwork Reduction Act
of 1995 (44 U.S.C. 3501 et seq.), the new activities and the additional
burden associated with this proposed rule have been submitted to OMB as
a new information collection for approval. If a final rule is
published, this information collection request will be scheduled for
merger into 0579-0055.
We are soliciting comments from the public (as well as affected
agencies) concerning our proposed reporting and recordkeeping
requirements. These comments will help us:
(1) Evaluate whether the proposed information collection is
necessary for the proper performance of our agency's functions,
including whether the information will have practical utility;
(2) Evaluate the accuracy of our estimate of the burden of the
proposed
[[Page 54819]]
information collection, including the validity of the methodology and
assumptions used;
(3) Enhance the quality, utility, and clarity of the information to
be collected; and
(4) Minimize the burden of the information collection on those who
are to respond (such as through the use of appropriate automated,
electronic, mechanical, or other technological collection techniques or
other forms of information technology; e.g., permitting electronic
submission of responses).
Estimate of burden: The public burden for this collection of
information is estimated to average 0.001 hours per response.
Respondents: Individuals and private and commercial importers or
exporters of agricultural plants and animals or their products.
Estimated annual number of respondents: 35,374.
Estimated annual number of responses per respondent: 43.
Estimated annual number of responses: 1,535,575.
Estimated total annual burden on respondents: 2,172 hours. (Due to
averaging, the total annual burden hours may not equal the product of
the annual number of responses multiplied by the reporting burden per
response.)
A copy of the information collection may be viewed on the
Regulations.gov website or in our reading room. (A link to
Regulations.gov and information on the location and hours of the
reading room are provided under the heading ADDRESSES at the beginning
of this proposed rule.) Copies can also be obtained from Mr. Joseph
Moxey, APHIS' Paperwork Reduction Act Coordinator, at (301) 851-2483.
APHIS will respond to any information collection review-related
comments in the final rule. All comments will also become a matter of
public record.
E-Government Act Compliance
The Animal and Plant Health Inspection Service is committed to
compliance with the E-Government Act to promote the use of the internet
and other information technologies, to provide increased opportunities
for citizen access to Government information and services, and for
other purposes. APHIS is working with U.S. Customs and Border
Protection to explore options for further improving, streamlining, and
automating user fee payment in the field, especially trucks and
maritime ``real time'' payment procedures, and transponders. For
information pertinent to E-Government Act compliance related to this
proposed rule, please contact Mr. Joseph Moxey, APHIS' Paperwork
Reduction Act Coordinator, at (301) 851-2483.
List of Subjects in 7 CFR Part 354
Animal diseases, Exports, Government employees, Imports, Plant
diseases and pests, Quarantine, Reporting and recordkeeping
requirements, Travel and transportation expenses.
Accordingly, APHIS is proposing to amend 7 CFR part 354 as follows:
PART 354--OVERTIME SERVICES RELATING TO IMPORTS AND EXPORTS; AND
USER FEES
0
1. The authority citation for part 354 continues to read as follows:
Authority: 7 U.S.C. 7701-7772, 7781-7786, and 8301-8317; 21
U.S.C. 136 and 136a; 49 U.S.C. 80503; 7 CFR 2.22, 2.80, and 371.3.
0
2. Revise Sec. 354.3 to read as follows:
Sec. 354.3 User fees for certain international services.
(a) Definitions. Whenever in this section the following terms are
used, unless the context otherwise requires, they shall be construed,
respectively, to mean:
APHIS. The Animal and Plant Health Inspection Service of the United
States Department of Agriculture (USDA).
Arrival. Arrival at a port of entry, as listed in 19 CFR 101.3, in
the customs territory of the United States or at any place serviced by
any such port of entry.
Barge. A non-self-propelled commercial vessel that transports cargo
that is not contained in shipping containers. This does not include
integrated tug barge combinations.
Calendar year. The period from January 1 to December 31, inclusive,
of any particular year.
Certificate. Any certificate issued by or on behalf of APHIS
describing the condition of a shipment of plants or plant products for
export, including but not limited to Phytosanitary Certificate (PPQ
Form 577), Export Certificate for Processed Plant Products (PPQ Form
578), and Phytosanitary Certificate for Reexport (PPQ Form 579).
Commercial aircraft. Any aircraft used to transport persons or
property for compensation or hire.
Commercial purpose. The intention of receiving compensation or
making a gain or profit.
Commercial railroad car. Any carrying vehicle, measured from
coupler to coupler and designed to operate on railroad tracks, other
than a locomotive or a caboose.
Commercial shipment. A shipment for gain or profit.
Commercial truck. Any self-propelled vehicle, including an empty
vehicle or a truck cab without a trailer, which is designed and used
for the transportation of commercial merchandise or for the
transportation of non-commercial merchandise on a for-hire basis.
Commercial vessel. Any watercraft or other contrivance used or
capable of being used as a means of transportation on water to
transport property for compensation or hire, with the exception of any
aircraft or ferry.
Customs and Border Protection (CBP). U.S. Customs and Border
Protection, U.S. Department of Homeland Security.
Customs territory of the United States. The 50 States, the District
of Columbia, and Puerto Rico.
Designated State or county inspector. A State or county plant
regulatory official designated by the Secretary of Agriculture to
inspect and certify to shippers and other interested parties as to the
phytosanitary condition of plant products inspected under the Plant
Protection Act (7 U.S.C. 7701 et seq.).
Passenger. A natural person for whom transportation is provided,
including infants, whether a separate ticket or travel document is
issued for the infant, or the infant or toddler occupies a seat, or the
infant or toddler is held or carried by another passenger.
Person. An individual, corporation, partnership, trust,
association, or any other public or private entity, or any officer,
employee, or agent thereof.
Reconditioning. The removal or alteration of packaging associated
with commercial cargo.
Restacking. The redistribution of commercial cargo within or
removal from a shipping container or other conveyance.
(b) Fee for inspection of commercial vessels of 100 net tons or
more. (1) Except as provided in paragraph (b)(2) of this section, the
master, licensed deck officer, or purser of any commercial vessel which
is subject to inspection under part 330 of this chapter or 9 CFR
chapter I, subchapter D, and which is either required to make entry at
the customs house under 19 CFR 4.3 or is a U.S.-flag vessel proceeding
coastwise under 19 CFR 4.85, shall, upon arrival, proceed to CBP and
pay an agricultural quarantine and inspection (AQI) user fee. The base
AQI user fee for each arrival is shown in table 1. The fee will be paid
for each arrival regardless of the number of arrivals taking place in
the course of a single voyage.
[[Page 54820]]
Table 1 to Paragraph (b)(1)--Fee for Inspection of Commercial Vessels of
100 Net Tons or More
------------------------------------------------------------------------
Effective date Amount
------------------------------------------------------------------------
Beginning January 1, 2024................................... $3,219.29
October 1, 2024............................................. 3,302.23
October 1, 2025............................................. 3,386.20
October 1, 2026............................................. 3,471.18
October 1, 2027............................................. 3,557.18
------------------------------------------------------------------------
(2) The following categories of commercial vessels are exempt from
paying an AQI user fee:
(i) Commercial cruise vessels carrying passengers paying fees under
paragraph (f) of this section;
(ii) Any vessel which, at the time of arrival, is being used solely
as a tugboat;
(iii) Vessels used exclusively in the governmental service of the
United States or a foreign government, including any agency or
political subdivision of the United States or a foreign government, so
long as the vessel is not carrying persons or merchandise for
commercial purposes;
(iv) Vessels arriving in distress or to take on fuel, sea stores,
or ship's stores;
(v) Tugboats towing vessels on the Great Lakes; and
(vi) Vessels returning to the United States after traveling to
Canada solely to take on fuel.
(c) Fee for inspection of commercial trucks--(1) On-arrival
payment. Upon arrival at a CBP port of entry, the driver or other
person in charge of a commercial truck that is subject to inspection
under part 330 of this chapter or under 9 CFR, chapter I, subchapter D,
must tender the AQI user fees to CBP, unless they have been prepaid as
provided for in paragraph (c)(2) of this section. APHIS strongly
encourages electronic remittance of fees. The fee applies to all
commercial trucks, regardless of what they are carrying, as well as
empty trucks and truck cabs (see table 2).
Table 2 to Paragraph (c)(1)--Fee for Inspection of Commercial Trucks
------------------------------------------------------------------------
Amount
Amount (per (prepaid
Effective date arrival) \1\ annual fees)
\2\
------------------------------------------------------------------------
Beginning January 1, 2024............... $11.40 $686.40
October 1, 2024......................... 12.40 746.40
October 1, 2025......................... 13.45 808.20
October 1, 2026......................... 14.50 870.60
October 1, 2027......................... 15.55 935.40
------------------------------------------------------------------------
\1\ Rounded down to the next $0.05 (five-cent) increment to facilitate
border operations.
\2\ Prepaid fees are set at 60 times the unrounded fee rates: $11.44,
$12.44, $13.47, $14.51, $15.59.
(2) Prepayment. (i) The owner, their agent, or person in charge of
a commercial vehicle may at any time prepay the commercial truck AQI
fee as defined in paragraph (c)(1) of this section for all arrivals of
that vehicle during a calendar year or any remaining portion of a
calendar year. The prepayment transponder fee is set at 60 times the
unrounded per arrival fee. Prepayment of the AQI fee must be made in
accordance with the procedures and payment methods set forth in 19 CFR
24.22. The following information must be provided, together with the
prepayment amount for each arrival:
(A) Vehicle make, model, and model year;
(B) Vehicle Identification Number (VIN);
(C) License numbers issued by State, Province, or country; and
(D) Owner's name and address.
(ii) Purchases of transponders may be made at any time during a
calendar year; APHIS will not prorate for the portion of the calendar
year already elapsed, nor refund single-crossing fees already paid.
(d) Fee for inspection of commercial railroad cars--(1) General
requirement. Except as provided in paragraph (d)(2) of this section, an
AQI user fee will be charged for each commercial railroad car (loaded
or empty) which is subject to inspection under part 330 of this chapter
or under 9 CFR chapter I, subchapter D, upon each arrival, as indicated
in table 3. The railroad company receiving a railroad car in
interchange at a port of entry or, barring interchange, the company
moving a car in line haul service into the customs territory of the
United States, will be responsible for payment of the fee. Payment of
the fee must be made in accordance with the procedures set forth in
paragraph (d)(3) or (4) of this section. For purposes of this
paragraph, the term ``railroad car'' means any carrying vehicle,
measured from coupler to coupler and designed to operate on railroad
tracks. If the AQI user fee is prepaid for all arrivals of a commercial
railroad car during a calendar year or any remaining portion of a
calendar year, the AQI user fee is an amount 48.32 times the AQI user
fee for each arrival.
Table 3 to Paragraph (d)(1)--Fee for Inspection of Commercial Railroad
Cars
------------------------------------------------------------------------
Amount (per Amount
Effective date arrival) (prepaid)
------------------------------------------------------------------------
Beginning January 1, 2024............... $5.81 $278.88
October 1, 2024......................... 6.51 312.48
October 1, 2025......................... 7.23 347.04
October 1, 2026......................... 7.97 382.56
October 1, 2027......................... 8.72 418.56
------------------------------------------------------------------------
(2) Exemptions. The following categories of commercial railroad
cars are exempt from paying an AQI user fee:
(i) Any commercial railroad car that is part of a train whose
journey originates and terminates in Canada, if:
(A) The commercial railroad car is part of the train when the train
departs Canada; and
[[Page 54821]]
(B) No passengers board or disembark from the commercial railroad
car, and no cargo is loaded or unloaded from the commercial railroad
car, while the train is within the United States.
(ii) Any commercial railroad car that is part of a train whose
journey originates and terminates in the United States, if:
(A) The commercial railroad car is part of the train when the train
departs the United States; and
(B) No passengers board or disembark from the commercial railroad
car, and no cargo is loaded or unloaded from the commercial railroad
car, while the train is within any country other than the United
States; and
(iii) Locomotives and cabooses.
(3) Prepayment. The owner, agent, or person in charge of a railroad
company may at any time prepay the commercial railroad car AQI fee as
defined in paragraph (d)(1) of this section for all arrivals of that
railroad car during a calendar year or any remaining portion of a
calendar. This payment must be remitted in accordance with paragraph
(d)(4)(iii) of this section.
(4) Remittance worksheet procedures. The Association of American
Railroads (AAR), the National Railroad Passenger Corporation (AMTRAK),
and railroad companies acting individually shall file monthly
Remittance Worksheets with USDA, APHIS, FMD, within 90 days after the
end of each calendar month. Each remittance worksheet shall indicate:
(i) The number of commercial railroad cars entering the customs
territory of the United States during the relevant period by railroad
company;
(ii) The total monthly AQI user fees due from each railroad
company; and
(iii) In the case of prepayments to cover all annual arrivals of
certain railroad car(s) in accordance with paragraph (d)(3) of this
section; include the number of railroad cars being prepaid for,
railroad car number(s) covered by the prepayment and the calendar year
to which the prepayment applies.
(iv) Railroad companies may include the remittance worksheet with
their mailed payment as directed in this paragraph (d)(4). For all
other payment types, the companies must email the remittance worksheet
to [email protected]. Individual railroad companies must submit a
remittance worksheet for periods with no fees collected. Detailed
remittance instructions are located at https://www.aphis.usda.gov/aphis/ourfocus/business-services/aqi-user-fees. Questions and
correspondence may be directed to [email protected] or (612) 336-
3400 (fax) or (877) 777-2128 (phone).
(5) Payment procedures. (i) If the railroad company intends to pay
monthly, the owner, agent or person in charge of an individual railroad
company shall pay the AQI user fees calculated by the Association of
American Railroads (AAR), the National Railroad Passenger Corporation
(AMTRAK), or the individual railroad company itself within 60 days
after the end of each calendar month in which commercial railroad cars
entered the customs territory of the United States.
(ii) If the owner, agent or person in charge of an individual
railroad company intends to prepay for railroad car(s) for the entire
calendar year, as specified in paragraph (d)(3) of this section,
prepayment may be made at any time during a calendar year; APHIS will
not prorate for the portion of the calendar year already elapsed, nor
refund or credit per arrival fees already paid.
(iii) Remittance worksheets as described in paragraph (d)(4) of
this section, are required to accompany all payments. Detailed payment
instructions are located at https://www.aphis.usda.gov/aphis/ourfocus/business-services/aqi-user-fees. Questions and correspondence may be
sent to [email protected], fax (612) 336-3400 or phone (877) 777-
2128.
(6) Compliance. (i) AAR, AMTRAK, and each railroad company
responsible for making AQI user fee payments must allow APHIS, CBP, and
authorized representatives to verify the accuracy of AQI user fees
collected and remitted and otherwise determine compliance with 21
U.S.C. 136a and this paragraph (d). The AAR, AMTRAK, and each railroad
company responsible for making AQI user fee payments must advise the
USDA, APHIS, FMD of the name, address, and telephone number of an agent
or other responsible person who is authorized to verify AQI user fee
calculations, collections, and remittance worksheets, payments, as well
as any changes in the identifying information submitted.
(ii) The agent or other responsible person for a payment remains
the agent or responsible person until the railroad company notifies
APHIS of a transfer of responsibility. The agent or responsible person
must contact APHIS to initiate any transfer by contacting
[email protected]. The new agent or responsible person assumes all
responsibilities for ensuring compliance for meeting the requirements
of this part.
(e)(1) Fee for inspection of commercial aircraft. Except as
provided in paragraph (e)(2) of this section, an AQI user fee will be
charged for each commercial aircraft which is arriving, or which has
arrived and is proceeding from one United States airport to another
under a CBP ``Permit to Proceed,'' as specified in 19 CFR 122.81
through 122.85, or an ``Agricultural Clearance or Safeguard Order''
(PPQ Form 250), used pursuant to Sec. 330.400 of this chapter and 9
CFR 94.5, and which is subject to inspection under part 330 of this
chapter or 9 CFR chapter I, subchapter D. Each carrier or their agent
is responsible for paying the AQI user fee. The AQI user fee for each
arrival is shown in table 4:
Table 4 to Paragraph (e)(1)--Fee for Inspection of Commercial Aircraft
------------------------------------------------------------------------
Effective date Amount
------------------------------------------------------------------------
Beginning January 1, 2024................................... $288.41
October 1, 2024............................................. 309.00
October 1, 2025............................................. 330.07
October 1, 2026............................................. 351.64
October 1, 2027............................................. 373.68
------------------------------------------------------------------------
(2) Exemptions. The following categories of commercial aircraft are
exempt from paying an AQI user fee:
(i) [Reserved]
(ii) Any aircraft used exclusively in the governmental services of
the United States or a foreign government, including any Agency or
political subdivision of the United States or a foreign government, as
long as the aircraft is not carrying persons or merchandise for
commercial purposes;
(iii) Any aircraft making an emergency or forced landing when the
original destination of the aircraft was a foreign port;
(iv) Any aircraft moving from the U.S. Virgin Islands to Puerto
Rico; and
(v) Any aircraft making an in-transit stop at a port of entry,
during which the aircraft does not proceed through any portion of the
Federal clearance process, such as inspection or clearance by APHIS or
CBP, no cargo is removed from or placed on the aircraft, no passengers
get on or off the aircraft, no crew members get on or off the aircraft,
no food is placed on the aircraft, and no garbage is removed from the
aircraft.
(3) Remittance worksheet and payment procedures. (i) The carrier or
their agent must pay the appropriate fees for receipt no later than 90
days after the close of the month in which the aircraft arrivals
occurred. APHIS strongly encourages electronic payment of fees. To set
up electronic payment refer to our detailed instructions at https://
www.aphis.usda.gov/mrpbs/
[[Page 54822]]
userfees/aqi-payment-types.pdf or for further information relative to
electronic remittance, contact [email protected]. In the event
electronic remission is impractical, a check or money order can be
mailed to the Agency lock box following detailed payment instructions
at https://www.aphis.usda.gov/mrpbs/userfees/aqi-payment-types.pdf.
Questions and correspondence may be directed to [email protected] or
to (612) 336-3400 (fax) or (877) 777-2128 (phone). For payment
information, refer to our detailed payment instructions at https://www.aphis.usda.gov/aphis/ourfocus/business-services/aqi-user-fees/aqi_user_fees. Late payments will be subject to interest, penalty, and
a charge to cover the cost of processing and handling a delinquent
claim as provided in the Debt Collection Act of 1982, as amended by the
Debt Collection Improvement Act of 1996 (31 U.S.C. 3717).
(ii) The carrier or their agent must provide a remittance worksheet
each month stating the fees that are due for the month. Carriers or
their agents must include a hard copy of the remittance worksheet with
any mailed payment. For all other payment types, including for months
with no fees collected, the carriers must email the remittance
worksheet to [email protected].
(iii) The remittance worksheet is a written statement that must
include the following information:
(A) Name and address of the person making the payment;
(B) Calendar month covered by the payment;
(C) Amount being paid, or a remittance worksheet stating that no
fees were collected.
(iv) All fee payments required under this section must be made in
U.S. dollars. For all payment types accepted, please visit https://www.aphis.usda.gov/aphis/ourfocus/business-services/aqi-user-fees.
(4) Compliance. Each carrier subject to this section must allow
APHIS, CBP, and authorized representatives to verify the accuracy of
the AQI user fees paid and to otherwise determine compliance in
accordance with paragraph (e) of this section and 21 U.S.C. 136a. Each
carrier must advise USDA, APHIS, FMD, FOB of the name, address, and
telephone number of an agent or responsible person who is authorized to
verify AQI user fee calculations, payments, and remittance worksheets
as well as any changes in the identifying information submitted. The
agent or responsible person for a payment remains the agent or
responsible person until the carrier notifies APHIS of a transfer of
responsibility. The carrier or their agent or responsible person must
contact APHIS at https://www.aphis.usda.gov/aphis/ourfocus/planthealth/ppq-program-overview/ppq-cbp-aqi-user-fees-contacts to initiate any
transfer. The new agent or responsible person assumes all
responsibilities for ensuring compliance for meeting the requirements
of this part.
(5) Limitations on charges. (i) Airlines will not be charged
reimbursable overtime for inspection of aircraft if the aircraft is
subject to the AQI user fee for arriving aircraft as prescribed by this
section.
(ii) Airlines will not be charged reimbursable overtime for
inspection of cargo from an aircraft if:
(A) The aircraft is subject to the AQI user fee for arriving
aircraft as prescribed by this section; and
(B) The cargo is inspected between 8 a.m. and 4:30 p.m., Monday
through Friday; or
(C) The cargo is inspected concurrently with the aircraft.
(f)(1) Fee for inspection of international passengers. Except as
specified in paragraph (f)(2) of this section, each passenger aboard a
commercial aircraft or cruise ship who is subject to inspection under
part 330 of this chapter or 9 CFR, chapter I, subchapter D, upon
arrival from a place outside of the customs territory of the United
States, must pay an AQI user fee. The fee covers one individual
arriving into a port of entry within the customs territory of the
United States from a foreign port. Each air or sea carrier, travel
agent, tour wholesaler, or other party issuing a ticket or travel
document for transportation into the customs territory of the United
States is responsible for collecting from the passenger the applicable
fee specified in this section, including the fee applicable to any
infants or toddlers traveling without a separate ticket or travel
document, whether in assigned seats or held in an adult passenger's
lap. In the event that the air or sea carrier, travel agent, tour
wholesaler, or other party issuing a ticket or travel document does not
collect the AQI user fee when tickets are sold, the air carrier or
cruise line must collect the user fee that is applicable at the time of
departure from the passenger upon departure. The AQI user fee will
apply to tickets purchased beginning January 1, 2024. The fees are
shown in tables 5 and 6:
Table 5 to Paragraph (f)(1)--International Air Passenger
------------------------------------------------------------------------
Effective date Amount
------------------------------------------------------------------------
Beginning January 1, 2024................................... $4.29
October 1, 2024............................................. 4.44
October 1, 2025............................................. 4.60
October 1, 2026............................................. 4.76
October 1, 2027............................................. 4.93
------------------------------------------------------------------------
Table 6 to Paragraph (f)(1)--International Cruise (Sea) Passenger
------------------------------------------------------------------------
Effective date Amount
------------------------------------------------------------------------
Beginning January 1, 2024................................... $1.20
October 1, 2024............................................. 1.25
October 1, 2025............................................. 1.29
October 1, 2026............................................. 1.34
October 1, 2027............................................. 1.39
------------------------------------------------------------------------
(2) Exemptions. The following categories of passengers are exempt
from paying an AQI user fee:
(i) Crew members onboard for purposes related to the operation of
the vessel;
(ii) Crew members who are on duty on a commercial aircraft;
(iii) Airline employees, including ``deadheading'' crew members,
who are traveling on official airline business;
(iv) Diplomats, except for U.S. diplomats, who can show that their
names appear on the accreditation listing maintained by the U.S.
Department of State. In lieu of the accreditation listing, an
individual diplomat may present appropriate proof of diplomatic status
to include possession of a diplomatic passport or visa, or diplomatic
identification card issued by a foreign government;
(v) Passengers departing and returning to the United States without
having touched a foreign port or place;
(vi) Passengers arriving on any commercial aircraft used
exclusively in the governmental service of the United States or a
foreign government, including any agency or political subdivision of
the United States or a foreign government, so long as the aircraft is
not carrying persons or merchandise for commercial purposes. Passengers
on commercial aircraft under contract to the U.S. Department of Defense
(DOD) are exempted if they have been precleared abroad under the joint
DOD/APHIS Military Inspection Program;
(vii) Passengers arriving on an aircraft due to an emergency or
forced landing when the original destination of the aircraft was a
foreign port;
(viii) Passengers transiting the United States and not subject to
inspection; and
(ix) Passengers moving from the U.S. Virgin Islands to Puerto Rico.
[[Page 54823]]
(3) Circumstances of user fee collections. AQI user fees shall be
collected under the following circumstances:
(i) When through tickets or travel documents are issued indicating
travel to the customs territory of the United States that originates in
any foreign country; and
(ii) When passengers arrive in the customs territory of the United
States in transit from a foreign country and are inspected by APHIS or
CBP.
(4) Responsibility for collection of fees. (i) Any air or sea
carrier, travel agent, tour wholesaler, or other party issuing a ticket
or travel document on or after May 13, 1991, is responsible for
collecting the AQI user fee from all passengers transported into the
customs territory of the United States to whom the AQI user fee
applies.
(A) Tickets or travel documents must be marked by the person who
collects the AQI user fee to indicate that the required AQI user fee
has been collected from the passenger.
(B) If the AQI user fee applies to a passenger departing from the
United States and if the passenger's tickets or travel documents were
issued on or after May 13, 1991, but do not reflect collection of the
AQI user fee at the time of issuance, then the carrier transporting the
passenger from the United States must collect the AQI user fee upon
departure.
(C) Unless refunded pursuant to paragraph (f)(5)(v) of this
section, AQI user fees collected from international passengers pursuant
to this paragraph (f) shall be held in trust for the United States by
the person collecting such fees, by any person holding such fees, or by
the person who is ultimately responsible for remittance of such fees to
APHIS. AQI user fees collected from international passengers shall be
accounted for separately and shall be regarded as trust funds held by
the person possessing such fees as agents, for the beneficial interest
of the United States. All such user fees held by any person shall be
property in which the person holds only a possessory interest and not
an equitable interest. As compensation for collecting, handling, and
remitting the AQI user fees for international passengers, the person
holding such user fees shall be entitled to any interest or other
investment return earned on the user fees between the time of
collection and the time the user fees are due to be remitted to APHIS
under this section. Nothing in this section shall affect APHIS' right
to collect interest for late remittance.
(5) Remittance and payment procedures. (i) The air or sea carrier,
travel agent, tour wholesaler, or other party issuing a ticket or
travel document or their own non-carrier related tickets or travel
documents, must remit collections of AQI user fees from the passengers
to APHIS.
(ii) The air or sea carrier, travel agent, tour wholesaler, or
other party issuing a ticket or travel document must remit the
passengers' fees to APHIS no later than 90 days after the close of the
calendar month in which the ticket issuer collected the AQI user fees
from the passengers. Late payments will be subject to interest,
penalties, and a charge to cover the cost of processing and handling a
delinquent claim as provided in the Debt Collection Act of 1982, as
amended by the Debt Collection Improvement Act of 1996 (31 U.S.C.
3717).
(iii) All fee payments required under this section must be made in
U.S. dollars. For payment types accepted please visit https://www.aphis.usda.gov/aphis/ourfocus/business-services/aqi-user-fees.
APHIS strongly encourages electronic remittance of fees. To set up
electronic remittance refer to our detailed payment instructions at
https://www.aphis.usda.gov/mrpbs/userfees/aqi-payment-types or for
further information relative to electronic remittance, contact
[email protected]. In the event electronic remission is impractical,
a check or money order can be mailed to the Agency lock box following
detailed payment instructions at https://www.aphis.usda.gov/mrpbe/userfees/aqi-payment-types. Questions and correspondence may be sent to
[email protected] or fax (612) 336-3400 or (877) 777-2128. For
payment information, refer to our detailed payment instructions at
https://www.aphis.usda.gov/aphis/ourfocus/business-services/aqi-user-fees/aqi_user_fees.
(iv) The air or sea carrier, travel agent, tour wholesaler, or
other party issuing a ticket or travel document must provide a
remittance worksheet each month stating the passenger fees that are due
for the month or stating that no payments are due. The air or sea
carrier, travel agent, tour wholesaler, or other party issuing a ticket
or travel document must include the remittance worksheet with their
mailed payment. For all other payment types, they must email the
remittance worksheet separately to [email protected]. The remittance
worksheet is a written statement that must include the following
information:
(A) Name and address of the person remitting payment;
(B) Calendar month covered by the payment; and
(C) Amount collected and remitted.
(v) It is the ticket or travel document-issuing entity's (e.g., air
or sea carrier, travel agent, tour wholesaler, or other party)
responsibility to make refunds of international passenger AQI user fees
to the purchaser for trips not taken. The air or sea carrier, travel
agent, tour wholesaler, or other party issuing a ticket or travel
document must refund the purchaser in the exact form of payment that
the purchaser originally used, and the entity may not issue vouchers,
other forms of credit, or other forms of refund different from the
purchaser's original form of payment.
(vi) If an air or sea carrier, travel agent, tour wholesaler, or
other party issuing a ticket or travel document collected and remitted
to APHIS the international passenger AQI user fees prior to refunding
the purchaser in accordance with paragraph (f)(5)(v) of this section,
it may request that APHIS credit its account in the net amount refunded
to the purchaser. APHIS will apply the credit against remittances due
in future months until the credit is expended. To request such a
credit, the ticket or travel document-issuing entity must submit a
revised remittance worksheet indicating the revised number of
passengers and international passenger AQI user fees amount collected.
The revised remittance worksheet must be completed and filed for each
month during which the ticket or travel document-issuing entity
certifies that there was a decrease in the number of passengers and
international passenger AQI user fees collected, using the procedure
described in paragraph (f)(5)(iv) of this section.
(6) Notification. Carriers contracting with U.S.-based tour
wholesalers are responsible for notifying the USDA, APHIS, FMD, FOB at
https://www.aphis.usda.gov/aphis/ourfocus/planthealth/ppq-program-overview/ppq-cbp-aqi-user-fees-contacts of all journeys contracted, the
number of spaces contracted for, and the name, address, and taxpayer
identification number of the United States-based tour wholesaler,
within 90 days after the close of the calendar month in which such a
journey occurred; except that, carriers are not required to make
notification if tickets, marked to show collection of the AQI user fee,
are issued for the individual contracted spaces.
(7) Compliance. Each carrier, travel agent, U.S.-based tour
wholesaler, or other entity subject to this section must allow APHIS,
CBP, and authorized representatives to verify the accuracy of the AQI
user fees collected and remitted and to otherwise determine compliance
with 21 U.S.C. 136a and this paragraph
[[Page 54824]]
(f). Each carrier, travel agent, U.S.-based tour wholesaler, or other
entity must advise USDA, APHIS, FMD, at https://www.aphis.usda.gov/aphis/ourfocus/planthealth/ppq-program-overview/ppq-cbp-aqi-user-fees-contacts of the name, address, and telephone number of a responsible
officer who is authorized to verify AQI user fee calculations,
payments, and remittance worksheets, as well as any changes in the
identifying information submitted. The responsible person for a payment
remains the responsible person until the air or sea carrier, travel
agent, tour wholesaler, or other party issuing a ticket or travel
document notifies APHIS of a transfer of responsibility. The
responsible person must contact APHIS to initiate any transfer. The new
responsible person assumes all responsibilities for ensuring compliance
for meeting the requirements of this part.
(8) Limitation on charges. Airlines and cruise lines will not be
charged reimbursable overtime for passenger inspection services
required for any aircraft or cruise ship on which a passenger arrived
who has paid the international passenger AQI user fee for that flight
or cruise.
(g) Fees for export certification of plants and plant products. (1)
For each certificate issued by APHIS personnel, the recipient must pay
the applicable AQI user fee at the time and place the certificate is
issued.
(2) When the work necessary for the issuance of a certificate is
performed by APHIS personnel on a Sunday or holiday, or at any other
time outside the regular tour of duty of the APHIS personnel issuing
the certificate, in addition to the applicable user fee, the recipient
must pay the applicable overtime rate in accordance with Sec. 354.1.
(3)(i) Each exporter who receives a certificate issued on behalf of
APHIS by a designated State or county inspector must pay an
administrative user fee, as shown in table 7. The administrative fee
can be remitted by the exporter directly to APHIS through the
Phytosanitary Certificate Issuance and Tracking System (PCIT), provided
that the exporter has a PCIT account and submits the application for
the export certificate through the PCIT. If the PCIT is not used, the
State or county issuing the certificate is responsible for collecting
the fee and remitting it monthly to the U.S. Bank, United States
Department of Agriculture, APHIS, AQI, P.O. Box 979043, St. Louis, MO
63197-9000.
Table 7 to Paragraph (g)(3)(i)--Administrative User Fee
------------------------------------------------------------------------
Amount per shipment
Effective dates -------------------------------
PCIT used PCIT not used
------------------------------------------------------------------------
October 1, 2009, through September 30, $3 $6
2010...................................
October 1, 2010, through September 30, 6 12
2011...................................
Beginning October 1, 2011............... 6 12
------------------------------------------------------------------------
(ii) The AQI user fees for an export or reexport certificate for a
commercial shipment are shown in table 8.
Table 8 to Paragraph (g)(3)(ii)--Export or Reexport Certificate for
Commercial Shipment
------------------------------------------------------------------------
Amount per
Effective dates shipment
------------------------------------------------------------------------
October 1, 2009, through September 30, 2010............. $77
October 1, 2010, through September 30, 2011............. 104
Beginning October 1, 2011............................... 106
------------------------------------------------------------------------
(iii) The AQI user fees for an export or reexport certificate for a
low-value commercial shipment are shown in table 9. A commercial
shipment is a low-value commercial shipment if the items being shipped
are identical to those identified on the certificate; the shipment is
accompanied by an invoice which states that the items being shipped are
worth less than $1,250; and the shipper requests that the user fee
charged be based on the low value of the shipment.
Table 9 to Paragraph (g)(3)(iii)--Export or Reexport Certificate for Low-
Value Commercial Shipment
------------------------------------------------------------------------
Amount per
Effective dates shipment
------------------------------------------------------------------------
October 1, 2009, through September 30, 2010............. $42
October 1, 2010, through September 30, 2011............. 60
Beginning October 1, 2011............................... 61
------------------------------------------------------------------------
(iv) The AQI user fees for an export or reexport certificate for a
noncommercial shipment are shown in table 10.
[[Page 54825]]
Table 10 to Paragraph (g)(3)(iv)--Export or Reexport Certificate for
Noncommercial Shipment
------------------------------------------------------------------------
Amount per
Effective dates shipment
------------------------------------------------------------------------
October 1, 2009, through September 30, 2010............. $42
October 1, 2010, through September 30, 2011............. 60
Beginning October 1, 2011............................... 61
------------------------------------------------------------------------
(v) The AQI user fees for replacing any certificate are shown in
table 11.
Table 11 to Paragraph (g)(3)(v)--Replacement Fee
------------------------------------------------------------------------
Amount per
Effective dates certificate
------------------------------------------------------------------------
October 1, 2009, through September 30, 2010............. $11
October 1, 2010, through September 30, 2011............. 15
Beginning October 1, 2011............................... 15
------------------------------------------------------------------------
(4) If a designated State inspector issues a certificate, the State
where the certificate is issued may charge for inspection services
provided in that State.
(5) Any State which wishes to charge a fee for services it provides
to issue certificates must establish fees in accordance with one of the
following guidelines:
(i) Calculation of a ``cost-per-certificate'' fee. The State must:
(A) Estimate the annual number of certificates to be issued;
(B) Determine the total cost of issuing certificates by adding
together delivery,\3\ support,\4\ and administrative costs; \5\ and
---------------------------------------------------------------------------
\3\ Delivery costs are costs such as employee salary and
benefits, transportation, per diem, travel, purchase of specialized
equipment, and user fee costs associated with maintaining field
offices. Delivery hours are similar hours taken by inspectors,
including travel time, inspection time, and time taken to complete
paperwork.
\4\ Support costs are costs at supervisory levels which are
similar to delivery costs, and user fee costs such as training,
automated data processing, public affairs, enforcement, legal
services, communications, postage, budget and accounting services,
and payroll, purchasing, billing, and collecting services. Support
hours are similar hours taken at supervisory levels, as well as
hours taken in training, automated data processing, enforcement,
legal services, communication, budgeting and accounting, payroll
purchasing, billing, and collecting.
\5\ Administrative costs are costs incurred as a direct result
of collecting and monitoring Federal phytosanitary certificates.
Administrative hours are hours taken as a direct result of
collecting and monitoring Federal phytosanitary certificates.
---------------------------------------------------------------------------
(C) Divide the cost of issuing certificates by the estimated number
of certificates to be issued to obtain a ``raw'' fee. The State may
round the ``raw'' fee up to the nearest quarter, if necessary for ease
of calculation, collection, or billing; or
(ii) Calculation of a ``cost-per-hour'' fee. The State must:
(A) Estimate the annual number of hours taken to issue certificates
by adding together delivery,\6\ support,\7\ and administrative \8\
hours;
---------------------------------------------------------------------------
\6\ Delivery costs are costs such as employee salary and
benefits, transportation, per diem, travel, purchase of specialized
equipment, and user fee costs associated with maintaining field
offices. Delivery hours are similar hours taken by inspectors,
including travel time, inspection time, and time taken to complete
paperwork.
\7\ Support costs are costs at supervisory levels which are
similar to delivery costs, and user fee costs such as training,
automated data processing, public affairs, enforcement, legal
services, communications, postage, budget and accounting services,
and payroll, purchasing, billing, and collecting services. Support
hours are similar hours taken at supervisory levels, as well as
hours taken in training, automated data processing, enforcement,
legal services, communication, budgeting and accounting, payroll
purchasing, billing, and collecting.
\8\ Administrative costs are costs incurred as a direct result
of collecting and monitoring Federal phytosanitary certificates.
Administrative hours are hours taken as a direct result of
collecting and monitoring Federal phytosanitary certificates.
---------------------------------------------------------------------------
(B) Determine the total cost of issuing certificates by adding
together delivery,\3\ support,\4\ and administrative costs; and
(C) Divide the cost of issuing certificates by the estimated number
of hours taken to issue certificates to obtain a ``cost-per-hour'' fee.
The State may round the ``cost-per-hour'' fee up to the nearest
quarter, if necessary for ease of calculation, collection, or billing.
(6) For payment of any of the AQI user fees required in this
paragraph (g), we will accept personal checks for amounts less than
$100, and checks drawn on commercial accounts, cashier's checks,
certified checks, traveler's checks, and money orders for any amount.
All payments must be for the exact amount due.
(h)(1) Fee for conducting and monitoring treatments. (i) User fees
for all treatment-and treatment-related AQI services listed in
paragraphs (h)(1)(ii)(A) through (D) of this section, will be
calculated at the hourly rate listed in table 12 for each employee
required to perform the service during regular business hours. Each
treatment provider conducting a treatment application required for
entry into the United States, or other monitored activity such as
restacking or reconditioning required for treatment application, is
responsible for collecting from the importer, their broker or agent the
applicable fee specified in this section. In instances in which APHIS
is the treatment provider, the importer is responsible paying the fee
directly to APHIS. Multiple phytosanitary treatments and treatment-
related activities may be conducted during the same time period and
covered by a single hourly rate subject to local government, union
agreements, environmental standards, and other applicable regulations,
rules, and ordinances.
Table 12 to Paragraph (h)(1)(i)--Fee for Conducting and Monitoring Treatments
--------------------------------------------------------------------------------------------------------------------------------------------------------
User fee January 1, 2024 October 1, 2024 October 1, 2025 October 1, 2026 October 1, 2027
--------------------------------------------------------------------------------------------------------------------------------------------------------
Hourly rate (per employee):
[[Page 54826]]
Per hour.................................................. $232.97 $253.19 $273.90 $295.12 $316.83
Per quarter hour.......................................... 58.24 63.30 68.48 73.78 79.21
Per service minimum fee................................... 58.24 63.30 68.48 73.78 79.21
--------------------------------------------------------------------------------------------------------------------------------------------------------
(ii) APHIS will charge user fees for all treatment-and treatment-
related AQI services:
(A) Conducting or monitoring phytosanitary treatments in accordance
with part 305 of this chapter and the USDA APHIS Treatment Manual
(https://www.aphis.usda.gov/import_export/plants/manuals/ports/downloads/treatment.pdf) including but not limited to approved
fumigation, irradiation, heat, cold, and mechanical treatment types.
(B) Conducting or monitoring the restacking of shipments in
preparation for phytosanitary treatments in accordance with this
section.
(C) Conducting or monitoring the reconditioning of shipments in
preparation for phytosanitary treatments in accordance with this
section.
(D) Conducting or monitoring the aeration of shipments after the
completion of phytosanitary treatments in accordance with this section.
(2) When do I pay an additional amount for employee(s) working
overtime? You must pay an additional amount if you need an APHIS
employee to work on a Sunday, on a holiday, or at any time outside the
normal tour of duty of that employee. Instead of paying the hourly rate
user fee, you pay the premium rate listed in table 13 for each employee
needed to get the work done. The treatment services overtime hourly
rate will be applied identically to reimbursable overtime (rules
pertaining to commuted travel time, minimum call-outs, etc., in Sec.
354.1). Overtime services will incur a minimum charge of 2 hours,
unless performed on the employee's regular workday and performed in
direct continuation of the regular workday or begun within an hour of
the regular workday. When the 2-hour minimum applies, you may need to
pay commuted travel time. (See Sec. 354.1(a)(2) for specific
information about commuted travel time.)
Table 13 to Paragraph (h)(2)--Fee for Conducting and Monitoring Treatments Outside the Employee's Normal Tour of Duty, Monday Through Saturday and
Holidays; and Premium Rates for Conducting and Monitoring Treatments on Sunday
--------------------------------------------------------------------------------------------------------------------------------------------------------
Reimbursable overtime and premium rate user fee
Overtime rates (outside the employee's normal tour of duty) -----------------------------------------------------------------------------------------
January 1, 2024 October 1, 2024 October 1, 2025 October 1, 2026 October 1, 2027
--------------------------------------------------------------------------------------------------------------------------------------------------------
Overtime hourly rate Monday through Saturday and holidays:
Per hour:................................................. $240.89 $261.36 $282.32 $303.93 $326.04
Per quarter hour:......................................... 60.22 65.34 70.58 75.98 81.51
Premium hourly rate for Sundays:
Per hour:................................................. 272.27 294.34 317.62 342.26 368.40
Per quarter hour:......................................... 68.07 73.58 79.41 85.57 92.10
--------------------------------------------------------------------------------------------------------------------------------------------------------
(3) Who must pay APHIS treatment monitoring hourly user fees? Any
treatment provider or importer for whom a service is provided related
to treatment conducting or monitoring as specified in paragraphs
(h)(1)(ii)(A) through (D) of this section is liable for payment of fees
as prescribed in paragraph (h)(4) of this section.
(4) Collection of fees. (i) The owner, agent, or person in charge
of private entities that provide AQI treatment services to importers
must collect the AQI treatment services hourly user fee and remit them
to APHIS.
(ii) When APHIS conducts treatments, APHIS will collect the AQI
treatment fee applicable at the time the treatment is applied from the
person receiving the services.
(5) When are APHIS treatment monitoring user fees due? User fees
specified in paragraph (h)(1)(i) of this section must be paid when
service is provided (for example when APHIS monitors a treatment at a
facility). If APHIS determines that the user has established an
acceptable credit history, the owner, agent, or person in charge may
request to pay when billed.
(6) What payment methods are acceptable? All fee payments required
under this section must be made in U.S. dollars. For payment types
accepted please visit https://www.aphis.usda.gov/aphis/ourfocus/business-services/aqi-user-fees.
(i) Consequences for nonpayment or late payment of user fees--(1)
Unpaid debt. In cases of delinquent debts, the government is required
to charge and collect interest, penalties, and costs. See 31 U.S.C.
3717(a) (interest); 3717(e)(1) (costs); and 3717(e)(2) (penalties). If
any person for whom the service is provided fails to pay when due any
debt to APHIS, including any user fee due under chapter I or chapter
III of this title, then:
(i) Subsequent user fee payments. Payment must be made for
subsequent user fees before the service is provided if:
(A) For unbilled fees, the user fee is unpaid 60 days after the
date the pertinent regulatory provision indicates payment is due;
(B) For billed fees, the user fee is unpaid 60 days after date of
bill;
(C) The person for whom the service is provided or the person
requesting the service has not paid the late payment penalty charges,
interest charges, or charges for the cost of processing and handling
the delinquent bill on any delinquent APHIS user fee; or
(D) Payment has been dishonored.
(ii) Resolution of difference between estimate and actual. APHIS
will estimate the user fee to be paid; any difference between the
estimate and the actual amount owed to APHIS will be resolved as soon
as reasonably possible following the delivery of the service, with
APHIS returning any excess to the payor or billing the payor for the
additional amount due.
(iii) Prepayment form. The prepayment must be in guaranteed form of
payment, such as money order or certified check. Prepayment in
guaranteed form will continue until the debtor pays the delinquent
debt.
[[Page 54827]]
(iv) Denied service. Service will be denied until the debt is paid
if:
(A) For unbilled fees, the user fee is unpaid 90 days after date
the pertinent regulatory provision indicates payment is due;
(B) For billed fees, the user fee is unpaid 90 days after date of
bill;
(C) The person for whom the service is provided or the person
requesting the service has not paid the late payment penalty charges,
interest charges, or charges for the cost of processing and handling
the delinquent bill on any delinquent APHIS user fee; or
(D) Payment has been dishonored.
(2) Unpaid debt during service. If APHIS is in the process of
providing a service for which an APHIS user fee is due, and the user
has not paid the fee within the time required, or if the payment
offered by the user is inadequate or unacceptable, then APHIS will take
the following action: If regulated articles in quarantine at a
treatment facility cannot be released from quarantine, APHIS may seize
and dispose of them, as determined by the Administrator, and may
recover all expenses of handling the articles from persons liable for
user fees under paragraph (h)(1)(i) of this section as outlined in
paragraphs (h)(6)(i) through (iv) of this section. If regulated
articles can be released from quarantine, the articles will be released
and any unpaid debt will be handled as outlined in paragraph (h)(6)(i)
of this section.
(3) Late payments. If for unbilled user fees, the user fees are
unpaid 30 days after the date the pertinent regulatory provisions
indicates payment is due, or if billed, are unpaid 30 days after the
date of the bill, APHIS will impose late payment penalty charges,
interest charges, and charges for the cost of processing and handling
the delinquent bill in accordance with 31 U.S.C. 3717.
(4) Dishonored payment. User fees paid with dishonored forms of
payment, such as a check returned for insufficient funds, will be
subject to interest and penalty charges in accordance with 31 U.S.C.
3717. Administrative charges will be assessed at $20.00 per dishonored
payment to be paid in addition to the original amount owed. Payment
must be in guaranteed form, such as a money order or certified check.
(5) Debt collection management. In accordance with applicable debt
collection law, the following provisions apply:
(i) Taxpayer identification number. APHIS will collect a taxpayer
identification number from all persons, other than Federal agencies,
who are liable for a user fee.
(ii) Offset. APHIS takes appropriate action to collect debts
through offset under applicable law, including by notifying the
Department of the Treasury of debts that are over 120 days delinquent
for the purposes of offset through the Treasury Offset Program. Through
the Treasury Offset Program, the Department of the Treasury will offset
eligible Federal and State payments to satisfy the debt to APHIS.
(iii) Cross-servicing. APHIS will transfer debts that are over 120
days delinquent to the Department of the Treasury's Cross-Servicing
program. Through the Cross-Servicing program, the Department of the
Treasury will collect debts on behalf of APHIS. Exceptions may be made
for debts that meet certain requirements, for example, debts that are
already at a collection agency or in payment plans.
(6) Report delinquent debt. APHIS will report all unpaid debts to
credit reporting bureaus.
(j) Recordkeeping and record retention. (1) Entities responsible
for paying AQI user fees and their agents are required to establish,
keep, and make available to APHIS the following records:
(i) Records and reports required under this section, including
remittance worksheets, if applicable; and
(ii) Legible copies of contracts (including amendments to
contracts) between the responsible entity or their agents and agents
that conduct activities subject to this part for the responsible
entity, and copies of documents relating to agreements made without a
written contract.
(2) Responsible entities or their agents must maintain sufficient
documentation for APHIS, CBP, and representatives to verify the
accuracy of the fee collections and, if applicable, remittance
worksheets. Such information must be made available for inspection upon
APHIS and CBP's demand. Such documentation shall be maintained in the
United States for a period of 5 years from the date of fee calculation,
unless a longer retention period is determined to be needed by the
Administrator. Each such affected entity shall provide to APHIS and CBP
the name, address, and telephone number of a responsible officer who is
able to verify any statements or records required to be filed or
maintained under this section and shall promptly notify APHIS and CBP
of any changes in the identifying information previously submitted.
(k) Severability. The sections of part 354 are separate and
severable from one another. If any section or portion therein is stayed
or determined to be invalid, or the applicability of any section to any
person or entity is held invalid, it is the APHIS' intention that the
validity of the remainder of those parts shall not be affected, with
the remaining sections to continue in effect.
Done in Washington, DC, this 2nd day of August 2023.
Jennifer Moffitt,
Undersecretary, Marketing and Regulatory Programs, USDA.
[FR Doc. 2023-17045 Filed 8-10-23; 8:45 am]
BILLING CODE 3410-34-P