Notice2022-16171
Food Safety Modernization Act Third-Party Certification Program User Fee Rate for Fiscal Year 2023
Primary source
Metadata and text below are from the Federal Register, a public-domain U.S. government work. Always verify the official published version before relying on it for any legal matter.
Published
July 28, 2022
Effective
October 1, 2022
Issuing agencies
Health and Human Services DepartmentFood and Drug Administration
Abstract
The Food and Drug Administration (FDA) is announcing the fiscal year (FY) 2023 annual fee rate for recognized accreditation bodies and accredited certification bodies, and the initial and renewal fee rate for accreditation bodies applying to be recognized in the third-party certification program that is authorized by the Federal Food, Drug, and Cosmetic Act (FD&C Act), as amended by the FDA Food Safety Modernization Act (FSMA). We are also announcing the fee rate for certification bodies that are applying to be directly accredited by FDA.
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<title>Federal Register, Volume 87 Issue 144 (Thursday, July 28, 2022)</title>
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[Federal Register Volume 87, Number 144 (Thursday, July 28, 2022)]
[Notices]
[Pages 45319-45323]
From the Federal Register Online via the Government Publishing Office [<a href="http://www.gpo.gov">www.gpo.gov</a>]
[FR Doc No: 2022-16171]
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DEPARTMENT OF HEALTH AND HUMAN SERVICES
Food and Drug Administration
[Docket No. FDA-2022-N-1592]
Food Safety Modernization Act Third-Party Certification Program
User Fee Rate for Fiscal Year 2023
AGENCY: Food and Drug Administration, HHS.
ACTION: Notice.
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SUMMARY: The Food and Drug Administration (FDA) is announcing the
fiscal year (FY) 2023 annual fee rate for recognized accreditation
bodies and accredited certification bodies, and the initial and renewal
fee rate for accreditation bodies applying to be recognized in the
third-party certification program that is authorized by the Federal
Food, Drug, and Cosmetic Act (FD&C Act), as amended by the FDA Food
Safety Modernization Act (FSMA). We are also announcing the fee rate
for certification bodies that
[[Page 45320]]
are applying to be directly accredited by FDA.
DATES: This fee is effective on October 1, 2022, and will remain in
effect through September 30, 2023.
FOR FURTHER INFORMATION CONTACT: Donald Prater, Office of Food Policy
and Response, Food and Drug Administration, 10903 New Hampshire Ave.,
Bldg. 1, Rm. 3202, Silver Spring, MD 20993, 301-348-3007.
SUPPLEMENTARY INFORMATION:
I. Background
Section 307 of FSMA (Pub. L. 111-353), Accreditation of Third-Party
Auditors, amended the FD&C Act to create a new provision, section 808,
under the same name. Section 808 of the FD&C Act (21 U.S.C. 384d)
directs FDA to establish a program for accreditation of third-party
certification bodies \1\ conducting food safety audits and issuing food
and facility certifications to eligible foreign entities (including
registered foreign food facilities) that meet our applicable
requirements. Under this provision, we established a system for FDA to
recognize accreditation bodies to accredit certification bodies, except
for limited circumstances in which we may directly accredit
certification bodies to participate in the third-party certification
program.
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\1\ For the reasons explained in the third-party certification
final rule (80 FR 74570 at 74578-74579, November 27, 2015), and for
consistency with the implementing regulations for the third-party
certification program in 21 CFR parts 1, 11, and 16, this notice
uses the term ``third-party certification body'' rather than the
term ``third-party auditor'' used in section 808(a)(3) of the FD&C
Act.
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Section 808(c)(8) of the FD&C Act directs FDA to establish a
reimbursement (user fee) program by which FDA assesses fees and
requires reimbursement for the work FDA performs to establish and
administer the third-party certification program under section 808 of
the FD&C Act. The user fee program for the third-party certification
program was established by a final rule entitled ``Amendments to
Accreditation of Third-Party Certification Bodies To Conduct Food
Safety Audits and To Issue Certifications To Provide for the User Fee
Program'' (81 FR 90186, December 14, 2016).
The FSMA FY 2023 third-party certification program user fee rate
announced in this notice is effective on October 1, 2022, and will
remain in effect through September 30, 2023.
II. Estimating the Average Cost of a Supported Direct FDA Work Hour for
FY 2023
FDA must estimate its costs for each activity in order to establish
fee rates for FY 2023. In each year, the costs of salary (or personnel
compensation) and benefits for FDA employees account for between 50 and
60 percent of the funds available to, and used by, FDA. Almost all the
remaining funds (operating funds) available to FDA are used to support
FDA employees for paying rent, travel, utility, information technology,
and other operating costs.
A. Estimating the Full Cost per Direct Work Hour in FY 2023
Full-time Equivalent (FTE) reflects the total number of regular
straight-time hours (not including overtime or holiday hours) worked by
employees, divided by the number of compensable hours applicable to
each fiscal year. Annual leave, sick leave, compensatory time off, and
other approved leave categories are considered ``hours worked'' for
purposes of defining FTE employment.
In general, the starting point for estimating the full cost per
direct work hour is to estimate the cost of an FTE or paid staff year.
Calculating an Agency-wide total cost per FTE requires three primary
cost elements: payroll, non-payroll, and rent.
We have used an average of past year cost elements to predict the
FY 2023 cost. The FY 2023 FDA-wide average cost for payroll (salaries
and benefits) is $173,393; non-payroll (including equipment, supplies,
information technology, general and administrative overhead) is
$103,078; and rent (including cost allocation analysis and adjustments
for other rent and rent-related costs) is $23,944 per paid staff year,
excluding travel costs.
Summing the average cost of an FTE for payroll, non-payroll, and
rent, brings the FY 2023 average fully supported cost to $300,416 \2\
per FTE, excluding travel costs. FDA will use this base unit fee in
determining the hourly fee rate for third-party certification user fees
for FY 2023 prior to including travel costs as applicable for the
activity.
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\2\ Total includes rounding.
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To calculate an hourly rate, FDA must divide the FY 2023 average
fully supported cost of $300,416 per FTE by the average number of
supported direct FDA work hours in FY 2021 (the last FY for which data
are available). See table 1.
Table 1--Supported Direct FDA Work Hours in a Paid Staff Year in FY 2021
------------------------------------------------------------------------
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Total number of hours in a paid staff year...................... 2,080
Less:
11 paid holidays.............................................. -88
20 days of annual leave....................................... -160
10 days of sick leave......................................... -80
12.5 days of training......................................... -100
22 days of general administration............................. -176
26.5 days of travel........................................... -212
2 hours of meetings per week.................................. -104
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Net Supported Direct FDA Work Hours Available for Assignments... 1,160
------------------------------------------------------------------------
Dividing the average fully supported FTE cost in FY 2023 ($300,416)
by the total number of supported direct work hours available for
assignment in FY 2021 (1,160) results in an average fully supported
cost of $259 (rounded to the nearest dollar), excluding travel costs,
per supported direct work hour in FY 2023.
B. Adjusting FY 2021 Travel Costs for Inflation To Estimate FY 2023
Travel Costs
To adjust the hourly rate for FY 2023, FDA must estimate the cost
of inflation in each year for FY 2022 and FY 2023. FDA uses the method
prescribed for estimating inflationary costs under the Prescription
Drug User Fee Act (PDUFA) provisions of the FD&C Act (section 736(c)(1)
(21 U.S.C. 379h(c)(1))), the statutory method for inflation adjustment
in the FD&C Act that FDA has used consistently. FDA previously
determined the FY 2022 inflation rate to be 2.2013 percent: this rate
was published in the FY 2022 PDUFA user fee rates notice in the Federal
Register (August 16, 2021, 86 FR 45732). Utilizing the method set forth
in section 736(c)(1) of the FD&C Act, FDA has calculated an inflation
rate of 2.2013 percent for FY 2022 and 1.6404 percent for FY 2023. FDA
intends to use this inflation rate to make inflation adjustments for FY
2023; the derivation of this rate will be published in the Federal
Register in the FY 2023 notice for the PDUFA user fee rates. The
compounded inflation rate for FYs 2022 and 2023 is 1.038778 (or 3.8778
percent) (calculated as 1 plus 2.2013 percent times 1 plus 1.6404
percent).
The average fully supported cost per supported direct FDA work
hour, excluding travel costs, of $259 already takes into account
inflation as the calculation above is based on FY 2023 predicted costs.
FDA will use this base unit fee in determining the hourly fee rate for
third-party certification program fees for FY 2023 prior to including
travel costs as applicable for the activity. For the purpose of
estimating
[[Page 45321]]
the fee, we are using the travel cost rate for foreign travel because
we anticipate that the vast majority of onsite assessments made by FDA
under this program will require foreign travel. In FY 2020,\3\ the
Office of Regulatory Affairs (ORA) spent a total of $1,449,058 on 171
foreign inspection trips related to FDA's Center for Food Safety and
Applied Nutrition and Center for Veterinary Medicine field activities
programs, which averaged a total of $8,474 per foreign inspection trip.
These trips averaged 3 weeks (or 120 paid hours) per trip. Dividing
$8,474 per trip by 120 hours per trip results in an additional cost of
$71 (rounded to the nearest dollar) per paid hour spent for foreign
inspection travel costs in FY 2020. To adjust $71 for inflationary
increases in FY 2021, FY 2022, and FY 2023, FDA must multiply it by the
same inflation factor mentioned previously in this document (1.038778
or 3.8778 percent) and the inflation factor for FY 2021 \4\ (1.013493),
which results in an estimated cost of $75 (rounded to the nearest
dollar) per paid hour in addition to $259 for a total of $334 per paid
hour ($259 plus $75) for each direct hour of work requiring foreign
inspection travel. FDA will use this rate in charging fees in FY 2023
when travel is required for the third-party certification program.
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\3\ FDA will be using FY 2020 numbers for the foreign inspection
travel costs due to the limited number of inspections done in FY
2021 due to travel restrictions caused by the COVID-19 Pandemic.
\4\ FDA previously determined the FY 2021 inflation rate to be
1.3493 percent; this rate was published in the FY 2021 PDUFA user
fee rates notice in the Federal Register (August 3, 2020, 85 FR
46651).
Table 2--FSMA Fee Schedule for FY 2023
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Fee rates
Fee category for FY
2023
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Hourly rate without travel.................................. $259
Hourly rate if travel is required........................... 334
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III. Fees for Accreditation Bodies and Certification Bodies in the
Third-Party Certification Program Under Section 808(c)(8) of the FD&C
Act
The third-party certification program assesses application fees and
annual fees. In FY 2023, the only fees that could be collected by FDA
under section 808(c)(8) of the FD&C Act are the initial application fee
for accreditation bodies seeking recognition, the annual fee for
recognized accreditation bodies, the annual fee for certification
bodies accredited by a recognized accreditation body, the initial
application fee for a certification body seeking direct accreditation
from FDA, and the renewal application fee for recognized accreditation
bodies. Table 3 provides an overview of the fees for FY 2023.
Table 3--FSMA Third-Party Certification Program User Fee Schedule for FY
2023
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Fee rates
Fee category for FY
2023
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Initial Application Fee for Accreditation Body Seeking $45,040
Recognition................................................
Annual Fee for Recognized Accreditation Body................ 2,088
Annual Fee for Accredited Certification Body................ 2,611
Initial Application Fee for a Certification Body Seeking 45,040
Direct Accreditation from FDA..............................
Renewal Application Fee for Recognized Accreditation Body... 27,441
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A. Application Fee for Accreditation Bodies Applying for Recognition in
the Third-Party Certification Program Under Section 808(c)(8) of the
FD&C Act
Section 1.705(a)(1) (21 CFR 1.705(a)(1)) establishes an application
fee for accreditation bodies applying for initial recognition that
represents the estimated average cost of the work FDA performs in
reviewing and evaluating initial applications for recognition of
accreditation bodies.
The fee is based on the fully supported FTE hourly rates and
estimates of the number of hours it would take FDA to perform relevant
activities. These estimates represent FDA's current thinking, and as
the program evolves, FDA will continue to reconsider the estimated
hours. Based on data we have acquired since starting the program, we
estimate that it would take, on average, 80 person-hours to review an
accreditation body's submitted application, 48 person-hours for an
onsite performance evaluation of the applicant (including travel and
other steps necessary for a fully supported FTE to complete an onsite
assessment), and 32 person-hours to prepare a written report
documenting the onsite assessment.
FDA employees review applications and prepare reports from their
worksites, so we use the fully supported FTE hourly rate excluding
travel, $259 per hour, to calculate the portion of the user fee
attributable to those activities: $259 per hour multiplied by (80 hours
(application review) plus 32 hours (written report)) equals $29,008.
FDA employees will likely travel to foreign countries for the onsite
performance evaluations because most accreditation bodies are
anticipated to be located in foreign countries. For this portion of the
fee, we use the fully supported FTE hourly rate for work requiring
travel, $334 per hour, to calculate the portion of the user fee
attributable to those activities: $334 per hour multiplied by 48 hours
(i.e., two fully supported FTEs per trip ((2 travel days multiplied by
8 hours) plus (1 day onsite multiplied by 8 hours))) equaling $16,032.
The estimated average cost of the work FDA performs in total for
reviewing an initial application for recognition for an accreditation
body based on these figures would be $29,008 plus $16,032 equals
$45,040. Therefore, the application fee for accreditation bodies
applying for recognition in FY 2023 will be $45,040.
B. Annual Fee for Accreditation Bodies Participating in the Third-Party
Certification Program Under Section 808(c)(8) of the FD&C Act
To calculate the annual fee for each recognized accreditation body,
FDA takes the estimated average cost of work FDA performs to monitor
performance of a single recognized accreditation body and annualizes
that over the average term of recognition. At this time, we assume an
average term of recognition of 5 years. We also assume that FDA will
monitor 10 percent of recognized accreditation bodies onsite. As the
program proceeds, we will adjust the term of recognition as
appropriate. We estimate that for one performance evaluation of a
recognized accreditation body, it would take, on average (taking into
account that not all recognized accreditation bodies would be monitored
onsite), 22 hours for FDA to conduct records review, 8 hours to prepare
a report detailing the records review and onsite performance
evaluation, and 8 hours of onsite performance evaluation. Using the
fully supported FTE hourly rates in table 2, the estimated average cost
of the work FDA performs to monitor performance of a single recognized
accreditation body would be $7,770 ($259 per hour multiplied by (22
hours (records review) plus 8 hours (written report))) plus $2,672
($334 per hour multiplied by 8 hours (onsite evaluation)), which is
$10,442. Annualizing this amount over 5 years would lead to an annual
fee for recognized accreditation bodies of $2,088 for FY 2023.
[[Page 45322]]
C. Annual Fee for Certification Bodies Accredited by a Recognized
Accreditation Body in the Third-Party Certification Program Under
Section 808(c)(8) of the FD&C Act
To calculate the annual fee for a certification body accredited by
a recognized accreditation body, FDA takes the estimated average cost
of work FDA performs to monitor performance of a single certification
body accredited by a recognized accreditation body and annualizes that
over the average term of accreditation. At this time, we assume an
average term of accreditation of 4 years. This fee is based on the
fully supported FTE hourly rates and estimates of the number of hours
it would take FDA to perform relevant activities. We estimate that FDA
would conduct, on average, the same activities, for the same amount of
time to monitor certification bodies accredited by a recognized
accreditation body as we would to monitor an accreditation body
recognized by FDA. Using the fully supported FTE hourly rates in table
2, the estimated average cost of the work FDA performs to monitor
performance of a single accredited certification body would be $7,770
($259 per hour multiplied by (22 hours (records review) plus 8 hours
(written report))) plus $2,672 ($334 per hour multiplied by 8 hours
(onsite evaluation)), which is $10,442. Annualizing this amount over 4
years would lead to an annual fee for accredited certification bodies
of $2,611 for FY 2023.
D. Initial Application Fee for Certification Bodies Seeking Direct
Accreditation From FDA in the Third-Party Certification Program Under
Section 808(c)(8) of the FD&C Act
Section 1.705(a)(3) establishes an application fee for
certification bodies applying for direct accreditation from FDA that
represents the estimated average cost of the work FDA performs in
reviewing and evaluating initial applications for direct accreditation
of certification bodies.
The fee is based on the fully supported FTE hourly rates and
estimates of the number of hours it would take FDA to perform relevant
activities. These estimates represent FDA's current thinking, and as
the program evolves, FDA will reconsider the estimated hours. We
estimate that it would take, on average, 80 person-hours to review a
certification body's submitted application, 48 person-hours for an
onsite performance evaluation of the applicant (including travel and
other steps necessary for a fully supported FTE to complete an onsite
assessment), and 32 person-hours to prepare a written report
documenting the onsite assessment.
FDA employees are likely to review applications and prepare reports
from their worksites, so we use the fully supported FTE hourly rate
excluding travel, $259 per hour, to calculate the portion of the user
fee attributable to those activities: $259 per hour multiplied by (80
hours (application review) plus 32 hours (written report)) equals
$29,008. FDA employees will likely travel to foreign countries for the
onsite performance evaluations because most certification bodies are
anticipated to be located in foreign countries. For this portion of the
fee we use the fully supported FTE hourly rate for work requiring
travel, $334 per hour, to calculate the portion of the user fee
attributable to those activities: $334 per hour multiplied by 48 hours
(i.e., two fully supported FTEs for travel ((2 travel days of 8 hours
each) plus (1 day onsite for 8 hours))) equaling $16,032. The estimated
average cost of the work FDA performs in total for reviewing an initial
application for direct accreditation of a certification body based on
these figures would be $29,008 plus $16,032 equaling $45,040.
Therefore, the application fee for certification bodies applying for
direct accreditation from FDA in FY 2023 will be $45,040.
E. Renewal Fee for Accreditation Bodies Participating in the Third-
Party Certification Program Under Section 808(c)(8) of the FD&C Act
Section 1.705(a)(2) establishes a renewal application fee for
recognized accreditation bodies that represents the estimated average
cost of the work FDA performs in reviewing and evaluating renewal
applications for recognition of accreditation bodies.
The fee is based on the fully supported FTE hourly rates and
estimates of the number of hours it would take FDA to perform relevant
activities. These estimates represent FDA's current thinking, and as
the program evolves, FDA will reconsider the estimated hours. We
estimate that it would take, on average, 43 person-hours to review an
accreditation body's submitted renewal application, 24 person-hours for
an onsite performance evaluation of the applicant (including travel and
other steps necessary for a fully supported FTE to complete an onsite
assessment), and 32 person-hours to prepare a written report
documenting the onsite assessment.
FDA employees are likely to review renewal applications and prepare
reports from their worksites, so we use the fully supported FTE hourly
rate excluding travel, $259 per hour, to calculate the portion of the
user fee attributable to those activities: $259 per hour multiplied by
(43 hours (application review) plus 32 hours (written report)) equaling
$19,425. FDA employees will likely travel to foreign countries for the
onsite performance evaluations because most certification bodies are
anticipated to be located in foreign countries. For this portion of the
fee we use the fully supported FTE hourly rate for work requiring
travel, $334 per hour, to calculate the portion of the user fee
attributable to those activities: $334 per hour multiplied by 24 hours
(i.e., fully supported FTE multiplied by travel ((2 travel days for 8
hours each) plus (1 day onsite for 8 hours))) equaling $8,016. The
estimated average cost of the work FDA performs in total for reviewing
a renewal application for recognition of an accreditation body based on
these figures would be $19,425 plus $8,016 equals $27,441. Therefore,
the renewal application fee for recognized accreditation bodies in FY
2023 will be $27,441.
IV. Estimated Fees for Accreditation Bodies and Certification Bodies in
Other Fee Categories for FY 2023
Section 1.705(a) also establishes application fees for
certification bodies applying for renewal of direct accreditation.
Section 1.705(b) also establishes annual fees for certification bodies
directly accredited by FDA.
Although we will not be collecting these other fees in FY 2023, for
transparency and planning purposes, we have provided an estimate of
what these fees would be for FY 2023 based on the fully supported FTE
hourly rates for FY 2023 and estimates of the number of hours it would
take FDA to perform relevant activities as outlined in the Final
Regulatory Impact Analysis for the Third-Party Certification
Regulation. Table 4 provides an overview of the estimated fees for
other fee categories.
Table 4--Estimated Fee Rates for Other Fee Categories Under the FSMA
Third-Party Certification Program
------------------------------------------------------------------------
Estimated
fee rates
Fee category for FY
2023
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Renewal application fee for directly accredited $27,441
certification body.........................................
Annual fee for certification body directly accredited by FDA 21,648
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[[Page 45323]]
V. How must the fee be paid?
Accreditation bodies seeking initial recognition must submit the
application fee with the application. For recognized accreditation
bodies and accredited certification bodies, an invoice will be sent
annually. Payment must be made within 30 days of the receipt invoice
date. The payment must be made in U.S. currency from a U.S. bank by one
of the following methods: wire transfer, electronically, check, bank
draft, or U.S. postal money order made payable to the Food and Drug
Administration. The preferred payment method is online using an
electronic check (Automated Clearing House (ACH), also known as eCheck)
or credit card (Discover, VISA, MasterCard, American Express). Secure
electronic payments can be submitted using the User Fees Payment Portal
(<a href="http://Pay.gov">Pay.gov</a>) at <a href="https://userfees.fda.gov/pay">https://userfees.fda.gov/pay</a>. (Note: only full payments
are accepted. No partial payments can be made online.) Once you have
found your invoice, select ``Pay Now'' to be redirected to <a href="http://Pay.gov">Pay.gov</a>.
Electronic payment options are based on the balance due. Payment by
credit card is available only for balances less than $25,000. If the
balance exceeds this amount, only the ACH option is available. Payments
must be made using U.S. bank accounts as well as U.S. credit cards.
When paying by check, bank draft, or U.S. postal money order, please
include the invoice number. Also write the FDA post office box number
(P.O. Box 979108) on the enclosed check, bank draft, or money order.
Mail the payment including the invoice number on the check stub to:
Food and Drug Administration, P.O. Box 979108, St. Louis, MO 63197-
9000.
When paying by wire transfer, it is required that the invoice
number is included; without the invoice number, the payment may not be
applied. The originating financial institution may charge a wire
transfer fee. If the financial institution charges a wire transfer fee,
it is required to add that amount to the payment to ensure that the
invoice is paid in full. For international wire transfers, please
inquire with the financial institutions prior to submitting the
payment. Use the following account information when sending a wire
transfer: U.S. Department of the Treasury, TREAS NYC, 33 Liberty St.,
New York, NY 10045, Account Name: Food and Drug Administration, Account
No.: 75060099, Routing No.: 021030004, Swift No.: FRNYUS33.
To send a check by a courier such as Federal Express, the courier
must deliver the check to: U.S. Bank, Attn: Government Lockbox 979108,
1005 Convention Plaza, St. Louis, MO 63101. (Note: this address is for
courier delivery only. If you have any questions concerning courier
delivery, contact U.S. Bank at 314-418-4013. This phone number is only
for questions about courier delivery.) The tax identification number of
FDA is 53-0196965. (Note: invoice copies do not need to be submitted to
FDA with the payments.)
VI. What are the consequences of not paying this fee?
The consequences of not paying these fees are outlined in 21 CFR
1.725. If FDA does not receive an application fee with an application
for recognition, the application will be considered incomplete and FDA
will not review the application. If a recognized accreditation body
fails to submit its annual user fee within 30 days of the due date, we
will suspend its recognition. If the recognized accreditation body
fails to submit its annual user fee within 90 days of the due date, we
will revoke its recognition. If an accredited certification body fails
to pay its annual fee within 30 days of the due date, we will suspend
its accreditation. If the accredited certification body fails to pay
its annual fee within 90 days of the due date, we will withdraw its
accreditation.
Dated: July 22, 2022.
Lauren K. Roth,
Associate Commissioner for Policy.
[FR Doc. 2022-16171 Filed 7-27-22; 8:45 am]
BILLING CODE 4164-01-P
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