Notice2023-15920
Food Safety Modernization Act Voluntary Qualified Importer Program User Fee Rate for Fiscal Year 2024
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Published
July 28, 2023
Issuing agencies
Health and Human Services DepartmentFood and Drug Administration
Abstract
The Food and Drug Administration (FDA) is announcing the fiscal year (FY) 2024 annual fee rate for importers approved to participate in the Voluntary Qualified Importer Program (VQIP) that is authorized by the Federal Food, Drug, and Cosmetic Act (FD&C Act), as amended by the FDA Food Safety Modernization Act (FSMA). This fee is effective on August 1, 2023 and will remain in effect through September 30, 2024.
Full Text
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<title>Federal Register, Volume 88 Issue 144 (Friday, July 28, 2023)</title>
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[Federal Register Volume 88, Number 144 (Friday, July 28, 2023)]
[Notices]
[Pages 48893-48896]
From the Federal Register Online via the Government Publishing Office [<a href="http://www.gpo.gov">www.gpo.gov</a>]
[FR Doc No: 2023-15920]
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DEPARTMENT OF HEALTH AND HUMAN SERVICES
Food and Drug Administration
[Docket No. FDA-2023-N-2898]
Food Safety Modernization Act Voluntary Qualified Importer
Program User Fee Rate for Fiscal Year 2024
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) 2024 annual fee rate for importers approved to
participate in the Voluntary Qualified Importer Program (VQIP) that is
authorized by the Federal Food, Drug, and Cosmetic Act (FD&C Act), as
amended by the FDA Food Safety Modernization Act (FSMA). This fee is
effective on August 1, 2023 and will remain in effect through September
30, 2024.
FOR FURTHER INFORMATION CONTACT: Olufunmilayo Ariyo, FSMA Fee Staff,
Office of Food Policy and Response, Food and Drug Administration, 10903
New Hampshire Ave., Silver Spring, MD 20993, 240-402-4989,
<a href="/cdn-cgi/l/email-protection#480e1b05090e2d2d1b3c292e2e082e2c296620203b662f273e"><span class="__cf_email__" data-cfemail="abedf8e6eaedcecef8dfcacdcdebcdcfca85c3c3d885ccc4dd">[email protected]</span></a>.
SUPPLEMENTARY INFORMATION:
I. Background
Section 302 of FSMA, VQIP, amended the FD&C Act to create a new
provision, section 806, under the same name. Section 806 of the FD&C
Act (21 U.S.C. 384b) directs FDA to establish a program to provide for
the expedited review and importation of food offered for importation by
importers who have voluntarily agreed to participate in such program,
and a process, consistent with section 808 of the FD&C Act (21 U.S.C.
384d), for the issuance of a facility certification to accompany a food
offered for importation by importers participating in VQIP.
Section 743 of the FD&C Act (21 U.S.C. 379j-31) authorizes FDA to
assess and collect fees from each importer participating in VQIP to
cover FDA's costs of administering the program. Each fiscal year, fees
are to be established based on an estimate of 100 percent of the costs
for the year. The fee
[[Page 48894]]
rates must be published in a Federal Register notice not later than 60
days before the start of each fiscal year (section 743(b)(1) of the
FD&C Act). After FDA approves a VQIP application, the user fee must be
paid before October 1, the start of the VQIP fiscal year, to begin
receiving benefits for that VQIP fiscal year.
The FY 2024 VQIP user fee will support benefits from October 1,
2023, through September 30, 2024.
II. Estimating the Average Cost of a Supported Direct FDA Work Hour for
FY 2024
FDA is required to estimate 100 percent of its costs for each
activity in order to establish fee rates for FY 2024. 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 of the remaining funds (operating
funds) available to FDA are used to support FDA employees for paying
rent, travel, utility, information technology (IT), and other operating
costs.
A. Estimating the Full Cost per Direct Work Hour in FY 2024
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 2024 cost. The FY 2024 FDA-wide average cost for payroll (salaries
and benefits) is $192,848; non-payroll--including equipment, supplies,
IT, general and administrative overhead--is $99,316 and rent, including
cost allocation analysis and adjustments for other rent and rent-
related costs, is $23,239 per paid staff year, excluding travel costs.
Summing the average cost of an FTE for payroll, non-payroll, and
rent, brings the FY 2024 average fully supported cost to $315,403 \1\
per FTE, excluding travel costs. FDA will use this base unit fee in
determining the hourly fee rate for VQIP fees for FY 2024 prior to
including domestic or foreign travel costs as applicable for the
activity.
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\1\ Total includes rounding.
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To calculate an hourly rate, FDA must divide the FY 2024 average
fully supported cost of $315,403 per FTE by the average number of
supported direct FDA work hours in FY 2022--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 2022
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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
Net Supported Direct FDA Work Hours Available for 1,160
Assignments........................................
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Dividing the average fully supported FTE cost in FY 2024 ($315,403)
by the total number of supported direct work hours available for
assignment in FY 2022 (1,160) results in an average fully supported
cost of $272 (rounded to the nearest dollar), excluding inspection
travel costs, per supported direct work hour in FY 2024.
B. Adjusting FY 2022 Travel Costs for Inflation To Estimate FY 2024
Travel Costs
To adjust the hourly rate for FY 2024, FDA must estimate the cost
of inflation in each year for FYs 2023 and 2024. 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 2023 inflation rate to be 1.6404 percent; this rate
was published in the FY 2023 PDUFA user fee rates notice in the Federal
Register (October 7, 2022, 87 FR 61063). Utilizing the method set forth
in section 736(c)(1) of the FD&C Act, FDA has calculated an inflation
rate of 1.6404 percent for FY 2023 and 3.8896 percent for FY 2024, and
FDA intends to use these inflation rates to make inflation adjustments
for FY 2024; the derivation of this rate will be published in the
Federal Register in the FY 2024 notice for the PDUFA user fee rates.
The compounded inflation rate for FYs 2023 and 2024, therefore, is
1.055938 (or 5.5938 percent) (calculated as 1 plus 1.6404 percent times
1 plus 3.8896 percent).
The average fully supported cost per supported direct FDA work
hour, excluding travel costs, of $272 already takes into account
inflation as the calculation above is based on FY 2024 predicted costs.
FDA will use this base unit fee in determining the hourly fee rate for
VQIP fees for FY 2024 prior to including domestic or foreign travel
costs as applicable for the activity.
In FY 2022, FDA's Office of Regulatory Affairs (ORA) spent a total
of $6,566,835 for domestic regulatory inspection travel costs and
General Services Administration Vehicle costs related to FDA's Center
for Food Safety and Applied Nutrition (CFSAN) and Center for Veterinary
Medicine (CVM) field activities programs. The total ORA domestic travel
costs spent is then divided by the 7,930 CFSAN and CVM domestic
inspections, which averages a total of $828 per inspection. These
inspections average 46.29 hours per inspection. Dividing $828 per
inspection by 46.29 hours per inspection results in a total and an
additional cost of $18 (rounded to the nearest dollar) per hour spent
for domestic inspection travel costs in FY 2022. To adjust for the $18
per hour additional domestic cost inflation increases for FY 2023 and
FY 2024, FDA must multiply the FY 2023 PDUFA
[[Page 48895]]
inflation rate adjustor (1.016404) by the FY 2024 PDUFA inflation rate
adjustor (1.038896) times the $18 additional domestic cost, which
results in an estimated cost of $19 (rounded to the nearest dollar) per
paid hour in addition to $272 for a total of $291 per paid hour ($272
plus $19) for each direct hour of work requiring domestic inspection
travel. FDA will use these rates in charging fees in FY 2024 when
domestic travel is required.
In FY 2022, ORA spent a total of $802,057 on 175 foreign inspection
trips related to FDA's CFSAN and CVM field activities programs, which
averaged a total of $4,583 per foreign inspection trip. These trips
averaged 3 weeks (or 120 paid hours) per trip. Dividing $4,583 per trip
by 120 hours per trip results in a total and an additional cost of $38
(rounded to the nearest dollar) per paid hour spent for foreign
inspection travel costs in FY 2022. To adjust $38 for inflationary
increases in FY 2023 and FY 2024, FDA must multiply it by the same
inflation factors mentioned previously in this document (1.016404 and
1.038896), which results in an estimated cost of $40 (rounded to the
nearest dollar) for each direct hour of work requiring foreign
inspection travel. FDA will use these rates in charging fees in FY 2024
when foreign travel is required.
Table 2--FSMA Fee Schedule for FY 2024
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Fee rates for
Fee category FY 2024
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Hourly rate without travel.............................. $272
Hourly rate if domestic travel is required.............. 291
Hourly rate if foreign travel is required............... 312
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III. Fees for Importers Approved To Participate in the Voluntary
Qualified Importer Program Under Section 743 of the FD&C Act
FDA assesses fees for VQIP annually. Table 3 provides an overview
of the fees for FY 2024.
Table 3--FSMA VQIP User Fee Schedule for FY 2024
------------------------------------------------------------------------
Fee rates for
Fee category FY 2024
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VQIP User Fee.......................................... $14,975
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Section 743 of the FD&C Act requires that each importer
participating in VQIP pay a fee to cover FDA's costs of administering
the program. This fee represents the estimated average cost of the work
FDA performs in reviewing and evaluating a VQIP importer. At this time,
FDA is not offering an adjusted fee for small businesses. As required
by section 743(b)(2)(B)(iii) of the FD&C Act, FDA previously published
a set of guidelines in consideration of the burden of the VQIP fee on
small businesses and provided for a period of public comment on the
guidelines (80 FR 32136, June 5, 2015). While we did receive some
comments in response, they did not address the questions posed, i.e.,
how a small business fee reduction should be structured, what
percentage of fee reduction would be appropriate, or what alternative
structures FDA might consider to indirectly reduce fees for small
businesses by charging different fee amounts to different VQIP
participants. We plan on monitoring costs and collecting data to
determine if, in future fiscal years, we will provide for a small
business fee reduction. Consistent with section 743(b)(2)(B)(iii) of
the FD&C Act, we will adjust the fee schedule for small businesses only
through notice and comment rulemaking.
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, 39 person-hours to review a
new VQIP application (including communication provided through the VQIP
Importer's Help Desk), 28 person-hours to review a returning VQIP
application (including communication provided through the VQIP
Importer's Help Desk), 16 person-hours for an onsite performance
evaluation of a domestic VQIP importer (including travel and other
steps necessary for a fully supported FTE to complete and document an
onsite assessment), and 34 person-hours for an onsite performance
evaluation of a foreign VQIP importer (including travel and other steps
necessary for a fully supported FTE to complete and document an onsite
assessment). Additional costs include maintenance and support costs of
information technology of administering benefits of the program. These
costs are estimated to be $4,359 per VQIP importer.
Based on updated data, FDA anticipates that there may be up to six
returning VQIP applicants and up to two new applicants this fiscal
year. FDA employees are likely to review new VQIP applications from
their worksites, so we use the fully supported FTE hourly rate
excluding travel, $272/hour, to calculate the portion of the user fee
attributable to those activities: $272/hour x (39 hours) = $10,608. FDA
employees are likely to review returning VQIP applications from their
worksites, so we use the fully supported FTE hourly rate excluding
travel, $272/hour, to calculate the portion of the user fee
attributable to those activities: $272/hour x (28 hours) = $7,616.
FDA employees will conduct a VQIP inspection to verify the
eligibility criteria and full implementation of the food safety and
food defense systems established in the Quality Assurance Program. A
VQIP importer may be located inside or outside of the United States.
However, this fiscal year, all VQIP importers will be located inside
the United States. Four VQIP applicants may have an associated VQIP
inspection.
FDA employees are likely to prepare for and report on the
performance evaluation of a domestic VQIP importer at an FTE's
worksite, so we use the fully supported FTE hourly rate excluding
travel, $272/hour, to calculate the portion of the user fee
attributable to those activities: $272/hour x (8 hours) = $2,176. For
the portion of the fee covering onsite evaluation of a domestic VQIP
importer, we use the fully supported FTE hourly rate for work requiring
domestic travel, $291/hour, to calculate the portion of the user fee
attributable to those activities: $291/hour x 8 hours (i.e., one fully
supported FTE x (1 day onsite x 8 hours)) = $2,328. Therefore, the
total cost of conducting the domestic performance evaluation of a VQIP
importer is determined to be $2,176 + $2,328 = $4,504.
Coordination of the onsite performance evaluation of a foreign VQIP
importer is estimated to take place at an FTE's worksite, so we use the
fully supported FTE hourly rate excluding travel, $272/hour, to
calculate the portion of the user fee attributable to those activities:
$272/hour x (10 hours) = $2,720. For the portion of the fee covering
onsite evaluation of a foreign VQIP importer, we use the fully
supported FTE hourly rate for work requiring foreign travel, $312/hour,
to calculate the portion of the user fee attributable to those
activities: $312/hour x 24 hours (i.e., one fully supported FTE x ((2
travel days x 8 hours) + (1 day onsite x 8 hours))) = $7,488.
Therefore, the total cost of conducting the foreign performance
evaluation of a VQIP importer is determined to be $2,720 + $7,488 =
$10,208.
Therefore, the estimated average cost of the work FDA performs in
total for approving an application for a VQIP
[[Page 48896]]
importer in FY 2024 based on these figures would be $4,359 + ($10,608 x
\1/4\) + ($7,616 x \3/4\) + ($4,504 x \1/2\) = $14,975.
IV. How must the fee be paid?
An invoice will be sent to VQIP importers approved to participate
in the program. Payment must be made prior to October 1, 2023, to be
eligible for VQIP participation for the benefit year beginning October
1, 2023. FDA will not refund the VQIP user fee for any reason.
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
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 in the check stub. 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.)
V. What are the consequences of not paying this fee?
The consequences of not paying these fees are outlined in Section J
of ``FDA's Voluntary Qualified Importer Program; Guidance for
Industry'' document (available at <a href="https://www.fda.gov/media/92196/download">https://www.fda.gov/media/92196/download</a>). If the user fee is not paid before October 1, a VQIP
importer will not be eligible to participate in VQIP. For the first
year a VQIP application is approved, if the user fee is not paid before
October 1, 2023, you are not eligible to participate in VQIP. If you
subsequently pay the user fee, FDA will begin your benefits after we
receive the full payment. The user fee may not be paid after December
31, 2023. For a subsequent year, if you do not pay the user fee before
October 1, FDA will send a Notice of Intent to Revoke your
participation in VQIP. If you do not pay the user fee within 30 days of
the date of the Notice of Intent to Revoke, we will revoke your
participation in VQIP.
Dated: July 24, 2023.
Lauren K. Roth,
Associate Commissioner for Policy.
[FR Doc. 2023-15920 Filed 7-27-23; 8:45 am]
BILLING CODE 4164-01-P
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