Notice2023-15921
Food Safety Modernization Act Third-Party Certification Program User Fee Rate for Fiscal Year 2024
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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, 2023
Effective
October 1, 2023
Issuing agencies
Health and Human Services DepartmentFood and Drug Administration
Abstract
The Food and Drug Administration (FDA or we) is announcing the fiscal year (FY) 2024 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 88 Issue 144 (Friday, July 28, 2023)</title>
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[Federal Register Volume 88, Number 144 (Friday, July 28, 2023)]
[Notices]
[Pages 48889-48893]
From the Federal Register Online via the Government Publishing Office [<a href="http://www.gpo.gov">www.gpo.gov</a>]
[FR Doc No: 2023-15921]
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DEPARTMENT OF HEALTH AND HUMAN SERVICES
Food and Drug Administration
[Docket No. FDA-2023-N-2897]
Food Safety Modernization Act Third-Party Certification 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 or we) is announcing the
fiscal year (FY) 2024 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.
DATES: This fee is effective on October 1, 2023, and will remain in
effect through September 30, 2024.
FOR FURTHER INFORMATION CONTACT: Olufunmilayo (Funmi) Ariyo, Food and
Drug Administration, 404 Powder Mill Rd., Beltsville, MD 20705-4304,
240-402-4989; or the FSMA Fee Staff, Office of Food Policy and
Response, Food and Drug Administration, 10903 New Hampshire Ave.,
Silver Spring, MD 20993, <a href="/cdn-cgi/l/email-protection#3e786d737f785b5b6d4a5f58587e585a5f1056564d10595148"><span class="__cf_email__" data-cfemail="d395809e9295b6b680a7b2b5b593b5b7b2fdbbbba0fdb4bca5">[email protected]</span></a>.
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
[[Page 48890]]
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 we assess fees and require
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 2024 third-party certification program user fee rate
announced in this notice is effective on October 1, 2023 and will
remain in effect through September 30, 2024.
II. Estimating the Average Cost of a Supported Direct FDA Work Hour for
FY 2024
FDA must estimate 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 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 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,
information technology, 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 \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 2024 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 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
------------------------------------------------------------------------
------------------------------------------------------------------------
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 1,160
for Assignments................................
------------------------------------------------------------------------
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 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 FY 2023 and FY 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. FDA
intends to use this inflation rate 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
third-party certification program fees for FY 2024 prior to including
travel costs as applicable for the activity. For the purpose of
estimating 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 2022, the Office of Regulatory Affairs spent a total of $802,057
on 175 foreign inspection trips related to FDA's Center
[[Page 48891]]
for Food Safety and Applied Nutrition and Center for Veterinary
Medicine 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 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 factor mentioned previously in this
document (1.055938 or 5.5938 percent), which results in an estimated
cost of $40 per paid hour in addition to $272 for a total of $312 per
paid hour ($272 plus $40) for each direct hour of work requiring
foreign inspection travel. FDA will use this rate in charging fees in
FY 2024 when travel is required for the third-party certification
program.
Table 2--FSMA Fee Schedule for FY 2024
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Fee category Fee rates for FY 2024
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Hourly rate without travel..................... $272
Hourly rate if travel is required.............. 312
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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 2024, 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 2024.
Table 3--FSMA Third-Party Certification Program User Fee Schedule for FY
2024
------------------------------------------------------------------------
Fee category Fee rates for FY 2024
------------------------------------------------------------------------
Initial Application Fee for Accreditation Body $45,440
Seeking Recognition...........................
Annual Fee for Recognized Accreditation Body... 2,131
Annual Fee for Accredited Certification Body... 2,664
Initial Application Fee for a Certification 45,440
Body Seeking Direct Accreditation from FDA....
Renewal Application Fee for Recognized 27,888
Accreditation Body............................
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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, $272 per hour, to calculate the portion of the user fee
attributable to those activities: $272/hour x (80 hours (application
review) + 32 hours (written report)) = $30,464. 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, $312 per
hour, to calculate the portion of the user fee attributable to those
activities: $312/hour x 48 hours (i.e., two fully supported FTEs x ((2
travel days x 8 hours) + (1 day onsite x 8 hours))) = $14,976. 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 $30,464 + $14,976 = $45,440. Therefore, the
application fee for accreditation bodies applying for recognition in FY
2024 will be $45,440.
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
[[Page 48892]]
body would be $8,160 ($272/hour x (22 hours (records review) + 8 hours
(written report))) plus $2,496 ($312/hour x 8 hours (onsite
evaluation)), which is $10,656. Annualizing this amount over 5 years
would lead to an annual fee for recognized accreditation bodies of
$2,131 for FY 2024.
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 $8,160
($272/hour x (22 hours (records review) + 8 hours (written report)))
plus $2,496 ($312/hour x 8 hours (onsite evaluation)), which is
$10,656. Annualizing this amount over 4 years would lead to an annual
fee for accredited certification bodies of $2,664 for FY 2024.
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, $272 per hour, to calculate the portion of the user
fee attributable to those activities: $272/hour x (80 hours
(application review) + 32 hours (written report)) = $30,464. 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, $312 per hour, to calculate the portion of the user fee
attributable to those activities: $312/hour x 48 hours (i.e., two fully
supported FTEs x ((2 travel days x 8 hours) + (1 day onsite x 8
hours))) = $14,976. 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 $30,464 +
$14,976 = $45,440. Therefore, the application fee for certification
bodies applying for direct accreditation from FDA in FY 2024 will be
$45,440.
E. Renewal Application 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, $272 per hour, to calculate the portion of the
user fee attributable to those activities: $272/hour x (43 hours
(application review) + 32 hours (written report)) = $20,400. 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, $312 per hour, to calculate the portion of the user fee
attributable to those activities: $312/hour x 24 hours (i.e., fully
supported FTE x ((2 travel days x 8 hours) + (1 day onsite x 8 hours)))
= $7,488. 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 $20,400 + $7,488 = $27,888.
Therefore, the renewal application fee for recognized accreditation
bodies in FY 2024 will be $27,888.
IV. Estimated Fees for Accreditation Bodies and Certification Bodies in
Other Fee Categories for FY 2024
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 2024, for
transparency and planning purposes, we have provided an estimate of
what these fees would be for FY 2024 based on the fully supported FTE
hourly rates for FY 2024 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.
[[Page 48893]]
Table 4--Estimated Fee Rates for Other Fee Categories Under the FSMA
Third-Party Certification Program
------------------------------------------------------------------------
Estimated fee rates
Fee category for FY 2024
------------------------------------------------------------------------
Renewal application fee for directly accredited $27,888
certification body............................
Annual fee for certification body directly 21,184
accredited by FDA.............................
------------------------------------------------------------------------
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
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 24, 2023.
Lauren K. Roth,
Associate Commissioner for Policy.
[FR Doc. 2023-15921 Filed 7-27-23; 8:45 am]
BILLING CODE 4164-01-P
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