Rule2024-09348
User Fees for Agricultural Quarantine and Inspection Services
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
May 7, 2024
Effective
October 1, 2024
Issuing agencies
Agriculture DepartmentAnimal and Plant Health Inspection Service
Abstract
We are amending the user fee regulations associated with the agricultural quarantine and inspection (AQI) program. Specifically, we are adjusting 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 or precleared or preinspected at a site outside the customs territory of the United States; adjusting the caps on prepaid fees associated with commercial trucks and commercial railroad cars; and removing certain fee exemptions that are no longer justifiable based upon pathway analyses of risk. We are also revising requirements pertaining to remittances and statements. Specifically, we will require monthly rather than quarterly remittances for the commercial aircraft fee, international air passenger fee, and international cruise passenger fee, clarify our requirements, and provide for electronic payments and statements. We are also including in the regulations information on agents responsible for ensuring compliance with paying the user fees and the requirement for entities to notify the Animal and Plant Health Inspection Service in the event they have a change in personnel responsible for fee payments. These 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.
Full Text
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[Federal Register Volume 89, Number 89 (Tuesday, May 7, 2024)]
[Rules and Regulations]
[Pages 38596-38644]
From the Federal Register Online via the Government Publishing Office [<a href="http://www.gpo.gov">www.gpo.gov</a>]
[FR Doc No: 2024-09348]
[[Page 38595]]
Vol. 89
Tuesday,
No. 89
May 7, 2024
Part V
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; Final
Rule
Federal Register / Vol. 89 , No. 89 / Tuesday, May 7, 2024 / Rules
and Regulations
[[Page 38596]]
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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: Final rule.
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SUMMARY: We are amending the user fee regulations associated with the
agricultural quarantine and inspection (AQI) program. Specifically, we
are adjusting 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 or precleared or preinspected at a site outside the customs
territory of the United States; adjusting the caps on prepaid fees
associated with commercial trucks and commercial railroad cars; and
removing certain fee exemptions that are no longer justifiable based
upon pathway analyses of risk. We are also revising requirements
pertaining to remittances and statements. Specifically, we will require
monthly rather than quarterly remittances for the commercial aircraft
fee, international air passenger fee, and international cruise
passenger fee, clarify our requirements, and provide for electronic
payments and statements. We are also including in the regulations
information on agents responsible for ensuring compliance with paying
the user fees and the requirement for entities to notify the Animal and
Plant Health Inspection Service in the event they have a change in
personnel responsible for fee payments. These 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: This rule is effective October 1, 2024, except for the removal
of section Sec. 354.3(e)(2)(iv), which is effective on April 1, 2025.
FOR FURTHER INFORMATION CONTACT: Mr. George Balady, Senior Regulatory
Policy Specialist, PPQ, APHIS, 4700 River Road, Unit 36, Riverdale, MD
20737; (301) 851-2338; <a href="/cdn-cgi/l/email-protection#0667776f28737563742860636375467375626728616970"><span class="__cf_email__" data-cfemail="305141591e454355421e5655554370454354511e575f46">[email protected]</span></a>.
SUPPLEMENTARY INFORMATION:
Table of Contents
<bullet> Background
[cir] General Issues
[cir] Economic Comments
[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
[cir] Records Retention
[cir] Severability
<bullet> Executive Orders 12866, 13563 and 14094, and Regulatory
Flexibility Act
[cir] Air Passengers
[cir] Commercial Aircraft
[cir] Small Aircraft Exemption
[cir] Commercial Vessels
[cir] Canadian Barge Exemption
[cir] Commercial Trucks
[cir] Commercial Railroad Cars
[cir] International Cruise Vessel Passengers
[cir] Treatment Monitoring
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 prescribe and 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'':
<bullet> 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;
<bullet> Providing ``preclearance or preinspection at a site
outside the customs territory of the United States'' to the conveyances
and the passengers listed above; and
<bullet> 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:
<bullet> 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.''
<bullet> 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.
On August 11, 2023, we published in the Federal Register (88 FR
54796-54827, Docket No. APHIS-2022-0023) a proposal \1\ to amend the
user fee regulations by adjusting 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; adjusting the caps on prepaid fees associated with
commercial trucks and commercial railroad cars; removing certain fee
exemptions that are no longer justifiable based upon pathway analyses
of risk; and restructuring the treatment monitoring fee.
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\1\ To view the proposed rule, supporting documents, and the
comments we received, go to <a href="http://www.regulations.gov">www.regulations.gov</a>. Enter APHIS-2022-
0023 in the Search field.
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We also proposed to revise requirements pertaining to remittances
and statements. Specifically, we proposed to require monthly rather
than quarterly remittances for the commercial aircraft fee,
international air passenger fee, and international cruise passenger
fee, clarify our requirements, and provide for electronic payments and
statements. We also proposed to 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.
We proposed these changes 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.
We solicited comments concerning our proposal for 60 days ending
October 10, 2023. We received 70 comments by that date. They were from
airlines, shipping companies, treatment providers, industry
associations, and private citizens. Eighteen commenters generally
supported the proposed rule, while 15 generally opposed it. The
remaining commenters, while commenting on the provisions of the
[[Page 38597]]
proposed rule, did not articulate a position in favor or against it.
The comments are discussed below by topic.
Based on the comments that we received, we have made the following
modifications to the proposed rule in this final rule:
<bullet> We have lowered the fees for commercial vessels,
commercial aircraft, and international air passengers based on our
determination that, while aggregate cost was correct (the numerator for
the fee rate), there were more instances in which AQI services were
provided in these modes (the denominator for the fee rate) than we had
initially calculated.
<bullet> We have established a commercial vessel fee specific to
commercial vessels operating within the Great Lakes or in the region
along the coastline from Alaska to Oregon, provided that certain
conditions are met.
<bullet> We have decided not to revise our regulations governing
the treatment monitoring fee at this time.
<bullet> We have decided not to specify the method by which
airlines and cruise ships must refund passenger user fees assessed for
trips not taken.
General Issues
Several commenters who supported the proposed rule agreed with the
proposed rule that additional personnel were needed at ports of entry
to reduce workload on individual employees. One of these commenters
stated that port personnel at certain ports of entry currently
routinely must work overtime to conduct inspections.
As we stated in the proposed rule, the increased fees will provide
for additional staffing at ports of entry.
One of these commenters also said that APHIS' regulations governing
reimbursable overtime also needed to be updated.
Changes to APHIS' regulations governing reimbursable overtime are
outside of the scope of this rulemaking. However, we do note that our
user fee model did consider staffing at ports in order to address the
staffing shortages highlighted by the commenter and reduce the need for
individual employees to work overtime to conduct inspections. We
discuss the staffing model at greater length below.
Several commenters, while supportive of the proposed rule, took the
view that the regulations imposed a protective tariff on imports.
Similarly, several other commenters stated that they were domestic
producers who supported the proposal and construed the regulations as a
mechanism to reduce import volume.
User fees are not tariffs, nor are they intended as a mechanism to
reduce import volume. Although the AQI user fees pertain to
international trade, user fees are a cost-recovery mechanism employed
more broadly than just in the international trade context. They are a
fee that a party charges to an entity receiving a service in order to
recover the costs associated with providing the service. User fees are
often imposed by a government, but not always. For example, a toll
collected on a privately owned toll road would fit the definition of a
user fee. As we highlighted in the preamble of the proposed rule (88 FR
54799, August 11, 2023), user fees are currently used throughout the
Federal Government to recover the costs of many Federal services, both
international and domestic.
Several domestic producers stated that the services funded by the
fees are necessary in order to keep plant pests, noxious weeds, and
pests and diseases of livestock from being introduced into or further
disseminated within the United States. We agree. AQI services are
essential to protect American agriculture and natural resources from
the introduction or further dissemination of plant pests, noxious
weeds, and pests and diseases of livestock. Furthermore, as we
mentioned in the proposed rule, programs to control or eradicate pests
once they become established in the United States can be costly for the
Agency to administer.
One commenter construed the proposed rule to include a notice-based
process by which the fees would be adjusted after October 1, 2028. We
did not propose to establish a notice-based process to adjust the fees
in the proposed rule. We did state in the proposed rule that we intend
to initiate a separate rulemaking to propose notice-based adjustments
to the fees to be implemented after October 1, 2028.
One commenter stated that the exact language of paragraph (a)(1)(A)
of the FACT Act provides authority to recover the cost of AQI services
provided to ``an international passenger, commercial vessel, commercial
aircraft, commercial truck, or railroad car,'' while our proposed rule
stated that it provided authority to recover the cost of services
provided to commercial vessels, commercial trucks, commercial railroad
cars, commercial aircraft, and international passengers. The commenter
argued that the word ``international'' in the FACT Act could be read to
apply to all the commercial means of conveyance listed, and not just
passengers.
Insofar as the services are provided to the listed means of
conveyance that are entering the United States from outside the United
States, the services are provided to the listed means of conveyance
that are operating ``internationally'' in the standard dictionary
definition of that term. (Merriam-Webster's online dictionary, for
example, defines ``international'' to mean, among other things, ``of,
relating to, or affecting two or more nations.'') \2\ Accordingly,
whether or not the term ``international'' in the FACT Act is read
restrictively to refer solely to passengers or more generally to apply
to both passengers and the listed means of conveyance does not change
the approach in this final rule.
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\2\ <a href="https://www.merriam-webster.com/dictionary/international">https://www.merriam-webster.com/dictionary/international</a>.
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The same commenter stated that inspection of animals, animal
products, plants, and plant products that enter the United States from
Canada may violate trade agreements between the two countries. The
commenter did not specify which trade agreements it considered to be
violated.
APHIS is unaware of any trade agreement that precludes either the
United States or Canada from conducting sanitary or phytosanitary
inspection and quarantine services. To the contrary, the U.S.-Mexico-
Canada Agreement, or USMCA, allows for inspection of imported
commodities among the three nations.
Several commenters stated that our proposed implementation date of
January 1, 2024, would be difficult or impossible for their businesses
to absorb, and requested more time to allow for adequate budget
planning and adjustment of contracts with customers. Two commenters
suggested that, regardless of what fiscal year is chosen for
implementation, the implementation date should be within the June to
November timeframe to minimize disruption to service contracts for that
year.
Because the publication of this final rule occurred after January
1, 2024, we have elected to set October 1, 2024, as our implementation
date. In the proposed rule, this was the date that the second phase of
the increased fees was scheduled to take effect. The October 1 date
corresponds to the beginning of APHIS' fiscal year (FY), and it occurs
within the June to November timeframe requested by the commenters. In
general, on October 1, 2024, we will revise the fees to set them at the
level specified in the proposed rule beginning on that date. That is,
for most fee classes, we are starting at phase 2 of the
[[Page 38598]]
proposed fees, but otherwise finalizing them as proposed. However, for
reasons discussed below, the user fees for commercial vessels,
commercial aircraft, international air passengers, and treatment
monitoring will differ from those proposed.
The same commenters who asked that the implementation date be
within the June to November time frame asked for at least a 1-year
delay in the implementation of this rulemaking to allow for budget
planning.
As noted in the proposed rule, the AQI program ran an average
deficit of over $166 million annually for FY 2017 through FY 2019.
During the COVID-19 pandemic, decreased international travel further
exacerbated these deficits, and the program had to rely on emergency
appropriated supplemental funds to cover program costs. Even in a post-
pandemic environment, current revenue projections indicate that the
fees must be raised by the outset of FY 2025 to avoid possible
disruptions to program delivery due to insufficient funds. Due to these
exigencies, we cannot delay the implementation of the new fees for such
a prolonged period. We note, however, that we have elected to have a
later effective date of April 1, 2025, for the removal of a provision
exempting commercial aircraft with 64 or fewer seats meeting certain
conditions from paying the user fee for their mode of conveyance. We
have determined that this later effective date can be implemented
without disruption to program delivery.
Two commenters stated that the fee increases should be phased in
over a 5-to-10-year period.
We note that we are phasing in the fee increases; the final fee
increase will occur more than 4 years after the issuance of this final
rule. A more prolonged phase-in schedule would adversely impact cost
recovery and is not feasible to sustain program operations.
Commenters stated that the proposed increases are not warranted in
the current inflation/recession prone environment and associated
impacts to industry.
The fee increases are necessary to help achieve full cost recovery
for the AQI services provided to the parties subject to the fees. AQI
user fee-funded activities operated at a substantial deficit before the
COVID-19 pandemic, and the pandemic exacerbated this deficit to the
extent that emergency supplemental appropriations were needed to cover
program costs. Moreover, APHIS notes that the AQI program is subject to
the same inflationary pressures as other sectors of the economy. Costs
associated with AQI personnel compensation and benefits, equipment and
materials, rents, leases, utilities, contracts, and other direct and
indirect costs have all increased since APHIS last adjusted the AQI
user fees in December 2015. Since December 2015, the consumer price
index for all urban consumers has increased over 30 percent,\3\ and the
AQI program is unsustainable at the current fee rates. Finally, we note
that a commenter, a small business owner, indicated that businesses
routinely factor the impact of compliance with Federal, State, and
local laws and regulations into their business models, and take into
account changes in compliance costs. The commenter's contention that
this is a common business practice was supported by several commenters
who represented regulated entities and indicated they would need to
adjust billing and contracts depending on the implementation date of a
final rule.
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\3\ The CPI Inflation Calculator is available on the Bureau of
Labor Statistics website at <a href="https://www.bls.gov/">https://www.bls.gov/</a>.
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Several commenters stated that instead of raising user fees, APHIS
should find alternate funding sources (for example, appropriated funds)
for AQI activities.
As we explained in the proposed rule, the FACT Act of 1990 was
passed by Congress and signed by the President for the express purpose
of the AQI program becoming self-funding through the prescription and
collection of user fees. While emergency appropriated supplemental
funds were provided during the COVID-19 pandemic to mitigate low
balances in the accounts, Congress indicated in the appropriations
bills that they were to address pandemic-related exigencies, and we
cannot depend on appropriations to cover the cost of AQI activities on
a routine and ongoing basis.
Many commenters asked accounting questions relating to how the fees
were developed. We will address specific comments below by topic. In
general, these questions are answered in the APHIS AQI cost model data
that was cited in the proposed rule and made available on the APHIS
website at: <a href="https://www.aphis.usda.gov/aphis/ourfocus/business-services/aqi-user-fees/aqi-fee-types/aqi-user-fee-reports">https://www.aphis.usda.gov/aphis/ourfocus/business-services/aqi-user-fees/aqi-fee-types/aqi-user-fee-reports</a>. This data
was comprehensive; for example, the FY 2017 commercial aircraft rollup
report contains over 190,000 lines of highly detailed cost data. To
that end, we also provided a dedicated AQI cost model video instructing
the public on how to properly read the data; these video instructions
were also available at <a href="https://www.aphis.usda.gov/aphis/ourfocus/business-services/aqi-user-fees/aqi-fee-types/aqi-user-fee-reports">https://www.aphis.usda.gov/aphis/ourfocus/business-services/aqi-user-fees/aqi-fee-types/aqi-user-fee-reports</a>.
APHIS also referenced the data in stakeholder webinars conducted during
the comment period; information about the dates and subjects of these
webinars is available on the APHIS website at <a href="https://www.aphis.usda.gov/aphis/ourfocus/business-services/aqi-user-fees/aqi-fee-types/aqi-userfee-proposed-rule-webinars">https://www.aphis.usda.gov/aphis/ourfocus/business-services/aqi-user-fees/aqi-fee-types/aqi-userfee-proposed-rule-webinars</a> as are links to recordings
of the webinars. The data availability and link also were provided via
stakeholder announcement and, as previously mentioned, further
explained via a dedicated AQI cost model video and corresponding
stakeholder announcement. APHIS web analytics showed an increase in AQI
cost model data web traffic following each of the above engagements.
Several commenters stated that APHIS should have discussed any
cost-cutting measures we had identified or considered in addition to
the proposed fee increases.
To address the current challenges, the AQI program has implemented
ways to increase efficiency. These efficiencies reduced AQI program
costs, and these cost savings were realized in the FY 2017 through FY
2019 period. As a result, the cost data that APHIS used to develop the
AQI user fee rates in this rulemaking, and which serve as the
``baseline,'' include these program cost savings. The most significant
way we have increased inspection efficiency is by using Risk Based
Sampling (RBS). RBS is an advanced statistical approach that adapts to
increase inspection rates of higher risk products and reduce inspection
rates of proven lower risk products. Table 1 below shows the time
savings for our trade and U.S. Customs and Border Protection (CBP)
inspectors across all monitored pathways, without compromising
agriculture safeguarding efforts. APHIS and CBP redirect this saved
time to intensive activities with greater phytosanitary risk, such as
physical inspections and regulated garbage monitoring.
[[Page 38599]]
[GRAPHIC] [TIFF OMITTED] TR07MY24.080
The AQI program has identified other ways to increase efficiency in
recent years. For example, CBP, through various initiatives, has
increased its targeting efficiency rates to approximately 63 percent.
In doing so, CBP deployed new approaches that significantly improved
their ability to identify and inspect non-compliant material compared
to random selection. APHIS and CBP have also facilitated more timely
clearance of agricultural cargo by improving our processes to grant
authority to inspectors and pest identifiers to make regulatory
decisions at ports, rather than by national specialists in other
locations. We also implemented advanced digital imaging to expedite
pest identifications that in the past would have required physically
shipping specimens, shaving days off of the pest identification
process.
APHIS also increased its electronic capacity to process cargo. Of
all the government agencies that set import requirements, APHIS had the
greatest number of forms and documents required to clear cargo. APHIS
joined CBP's Automated Commercial Environment single window initiative,
making it easier for importers to electronically provide information
critical for AQI clearance prior to importation, reducing expense and
clearance time. Additionally, we have structured regulatory
requirements into an advanced database, and automated permit issuance
to reduce the processing time for most Plants and Plant Products
permits from 5 to 7 days to 1 day or less. APHIS eFile issues up to 85
percent of the Plants and Plant Products permits to applicants in less
than 1 minute.
Program and process efficiencies are just one aspect of the AQI
program's efforts to become more effective and efficient at a lower
cost. Personnel compensation and benefits are the single largest cost
in the AQI program, and so effective use of personnel time is essential
to keep costs down without compromising the mission. CBP found that
their Agriculture Specialists were increasingly spending time on
administrative activities, taking them away from core inspection and
regulatory functions. To address this, CBP piloted using technicians
(full performance level GS-08) to free Agriculture Specialists (full
performance level GS-12) to spend more time on inspection-related
activities. CBP's staffing and workload analysis found that adding one
technician frees up 1.49 CBP Agriculture Specialists. The 731
Technicians in CBP's staffing plan free up the equivalent of 1,089
Agriculture Specialists, resulting in a cost savings of nearly $81
million per year.
Despite these efforts to increase efficiencies, anticipated AQI
operational costs would far surpass AQI anticipated revenue unless the
fees are raised in the manner specified in this final rule.
A commenter stated that APHIS should provide greater transparency
for capital costs. The commenter expressed concerns over what was
included in the capital costs, the allocation of those costs, and
capital costs associated with non-AQI programs. The commenter stated
that the proposed rule should have explained how capital costs were
factored into fee calculations.
We disagree with the commenter. As we explained in the proposed
rule, there is no reserve component in the fee rates in this proposed
rule. Rather, the fee rates in the proposed rule were 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.\4\ 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. In the AQI cost model that
accompanied the proposed rule, we included capital costs in the cost
model at level 26 for APHIS and level 27 for CBP, all cost objects with
an identification code starting with ``26'' or ``27'' are planned
capital spending costs. Likewise, we note that an overall summary of
planned capital spending costs could also be found in the supporting
document at <a href="https://www.regulations.gov/document/APHIS-2022-0023-0035">https://www.regulations.gov/document/APHIS-2022-0023-0035</a>
that was made available during the comment period. As an additional
measure, APHIS has included the planned capital expenditure costs in a
series of summary tables in this document.
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\4\ The programmatic need and legal basis for the application of
fees to capital costs was discussed in further detail in the
proposed rule, the relevant sections of which the agency
incorporates by reference here. See 88 FR 54797-98, 54800-801.
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Capital costs include items such as facility design, development
and maintenance costs; new information technology and equipment costs,
and AQI program outreach expansion and
[[Page 38600]]
improvement costs. The AQI Program's top 10 capital projects are:
1. Design and construct two new plant inspection stations;
2. Design and construct a new multi-function laboratory and
containment facility;
3. Upgrades and updates to the eFile system;
4. Beltsville facility infrastructure improvements;
5. Design and construct new plant pathogen diagnostic methods lab;
6. Design and construct new national plant germplasm greenhouse;
7. Design and construct new identification laboratory;
8. New Preclearance and Offshore Programs IT System;
9. Engage in an outreach campaign, Clean Clears Quicker, to
emphasize the importance of regulatory compliance; and
10. Establish Federal oversight of the existing Don't Pack A Pest
outreach campaign.
APHIS has treated capital costs as an overhead cost and allocated
capital costs according to frontline Full Time Equivalent (FTE) hours
because any capital projects would support the AQI program
proportionately to frontline AQI FTEs. With respect to shared
facilities, that is, facilities which house or support both AQI and
non-AQI functions--the planned capital costs in the AQI activity-based
cost model only include those costs attributable to the AQI program.
Moreover, a portion of those costs are allocated to non-fee areas. Non-
fee areas are those AQI activities for which there is no fee. The
largest non-fee areas are privately owned vehicle (POV) and POV
passenger clearance, and pedestrians. The AQI program allocates costs
to non-fee areas for the express purpose of ensuring that the payers of
AQI user fees do not pay for the costs associated with non-fee areas.
Rollup reports associated with non-fee areas are available to the
public on the APHIS website at <a href="https://www.aphis.usda.gov/aphis/ourfocus/business-services/aqi-user-fees/aqi-fee-types/aqi-user-fee-reports">https://www.aphis.usda.gov/aphis/ourfocus/business-services/aqi-user-fees/aqi-fee-types/aqi-user-fee-reports</a> alongside the rollup reports for the fee areas. CBP's
appropriation covers CBP's costs associated with AQI activities in non-
fee areas. The rest are covered by trust funds that we have entered
into pursuant to regulations issued under authority of the Plant
Protection Act (7 U.S.C. 7711 et seq.), such as those in 7 CFR 319.37-
22 for plants for planting and those in 7 CFR 319.56-6 for fruits and
vegetables, or are part of other APHIS programs and appropriations and
are not included in costs factored into the AQI User Fees.
We note, additionally, that the commenter assumed that the AQI
program is fully funded and staffed currently, which is not the case.
A commenter stated that they worked with CBP personnel who were
underused at a port of entry, and questioned whether additional CBP
staffing was warranted in light of their experience. While not directly
challenging the validity of this claim, several other commenters
asserted that, at other ports of entry, throughput is substantial and
CBP employees often work overtime to ensure timely delivery of
services. One commenter stated that some ports of entry only currently
employ a single inspector to conduct AQI inspections.
Our data does not support the commenter's anecdotal experience that
CBP personnel are underused. CBP's staffing models, which are addressed
at greater length directly below, evaluated workload and throughputs at
ports of entry throughout the United States. CBP's staffing models
underscore that many ports of entry have workload demands that
currently exceed regular FTE hours.
Several commenters noted that a significant amount of each fee
would go to staffing. The commenters stated that it was not clear from
the proposed rule how the additional staffing levels needed were
arrived at, and how they would be used in providing AQI services.
Additional staffing costs were included in the AQI cost model at
level 35 and level 451 for APHIS and level 452 for CBP; all cost
objects with an identification code starting with ``35'' or ``45'' are
additional staffing costs. We summarized CBP's additional staffing
requirements by fee area in table 1 of the proposed rule, which we have
reproduced as table 2 below.
[GRAPHIC] [TIFF OMITTED] TR07MY24.081
[[Page 38601]]
CBP uses two statistical workload models to determine AQI staffing
needs by environment. The Agriculture Specialist Resource Allocation
Model \5\ (AgRAM) calculates staffing needs for CBP Agriculture
Specialists, and the Mission Operations Support Resource Allocation
Model (MOSRAM) calculates the staffing needs for support positions such
as CBP Agriculture Technicians and other support positions.
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\5\ This model is described in the document ``Agriculture
Resource Optimization: Fiscal Year 2020 Report to Congress''
available on CBP's website at <a href="https://www.dhs.gov/sites/default/files/publications/cbp_-_agriculture_resource_optimization_0.pdf">https://www.dhs.gov/sites/default/files/publications/cbp_-_agriculture_resource_optimization_0.pdf</a>.
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CBP's staffing models calculated additional personnel needs based
on estimated throughput as calculated in light of actual workload, in
order to ensure that bottlenecks do not occur in port operations. APHIS
summarized its additional personnel needs by fee area in table 2 of the
proposed rule, which we have reproduced as table 3 below. The bulk of
additional APHIS personnel are field positions, including botany,
entomology and plant pathology identifiers, veterinary medical
officers, and plant health safeguarding specialists. Increased
frontline staffing also requires additional support staff to
accommodate additional workload in areas such as human resources,
financial management, and employee training. Finally, some additional
policy and operational personnel will also be needed to accommodate the
additional throughput. Our data in tables 2 and 3 account for these
factors.
[GRAPHIC] [TIFF OMITTED] TR07MY24.082
A commenter noted that the proposed rule was based on cost data
from FY 2017 through FY 2019 and asked how budget shortfalls or
surpluses in FY 2013 through FY 2016 and FY 2020 through FY 2022 may
have impacted the setting of the AQI user fees.
APHIS does not set AQI user fees based upon prior year shortfalls
or surpluses. Under an activity-based costing methodology, APHIS uses
actual program costs per fiscal year plus anticipated costs for capital
planning and additional staffing allocated to each fee and non-fee
area, then takes the total costs in each fee area and divides that
total cost by the number of projected units (a unit being a commercial
vessel, commercial truck, commercial railroad car, commercial aircraft,
an international air or cruise passenger, or a treatment). The unit
costs for 3 consecutive fiscal years are adjusted for inflation to
today's dollars (in this rulemaking, June 2022), and then these
adjusted unit costs are averaged. Finally, APHIS adjusted the average
unit cost (that is, June 2022 dollars) for projected inflation, (that
is, future dollars) for FY 2025 through FY 2028.\6\ As we explained
above, non-fee areas are those AQI activities for which there is no
fee. The largest non-fee areas are privately owned vehicle (POV) and
POV passenger clearance, and pedestrians. The AQI program allocates
costs to non-fee areas for the express purpose of ensuring that the
payers of AQI user fees do not pay for the costs associated with non-
fee areas. Rollup reports associated with non-fee areas are available
to the public on the APHIS website at <a href="https://www.aphis.usda.gov/aphis/ourfocus/business-services/aqi-user-fees/aqi-fee-types/aqi-user-fee-reports">https://www.aphis.usda.gov/aphis/ourfocus/business-services/aqi-user-fees/aqi-fee-types/aqi-user-fee-reports</a> alongside the rollup reports for the fee areas. CBP's
appropriation covers most of the costs associated with non-fee areas.
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\6\ See the document titled ``Projected Fees for Agricultural
Quarantine Inspections, FY 2024-2028'' which we made available with
the proposed rule at <a href="https://www.regulations.gov/document/APHIS-2022-0023-0010">https://www.regulations.gov/document/APHIS-2022-0023-0010</a>.
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The same commenter stated that it appeared that cost data from FY
2014 through FY 2016 and FY 2020 through FY 2022 had a role in the
proposed fees, although it was difficult to discern exactly to what
degree.
APHIS did not use cost data from FY 2014 through FY 2016 for the
proposed rule because we had newer cost data on which to rely. APHIS
also did not use cost data for FY 2020 through FY 2022 because, as we
suggested in the proposed rule, these fiscal years were not a period of
normal operations.
A commenter stated that the proposed fees did not appear to follow
the inflation rate since the fees were last updated. The commenter
stated that, were the fees calculated in such a manner, they would be
significantly lower than proposed.
The fees were not calculated solely by applying intervening
inflation. APHIS used actual cost data for FY 2017 through FY 2019 by
user class, future costs for planned capital expenditures, and
additional staffing, and divided that by the number of users per fiscal
year to arrive at a unit cost. We then adjusted those unit costs to
June 2022 dollars, averaged the unit costs across the 3 fiscal years,
and finally adjusted that average unit cost for projected inflation.
[[Page 38602]]
We made comprehensive rollup reports for the cost components of each
fee available as supplemental documents for the proposed rule. The
reports are available on the APHIS website at <a href="https://www.aphis.usda.gov/aphis/ourfocus/business-services/aqi-user-fees/aqi-fee-types/aqi-user-fee-reports">https://www.aphis.usda.gov/aphis/ourfocus/business-services/aqi-user-fees/aqi-fee-types/aqi-user-fee-reports</a>. In addition, we have included summary
tables for each fee area below as a quick visual reference regarding
fee development.
A commenter stated that all AQI user fees should be capped.
Capping all AQI user fees would undermine full cost recovery, one
of the aims of the FACT Act. As we indicated in the proposed rule,
while we cap fees for two AQI modes, prepaid commercial railroad cars
and prepaid commercial truck crossings (transponder), this is due to
their unique operational exigencies. For example, we pointed out that
in the absence of a commercial truck transponder, CBP personnel would
have to collect the fee at border crossings 11 million times annually,
which is operationally untenable.
Several commenters suggested that APHIS should tier user fees based
on the sanitary and phytosanitary risk presented by different modes of
conveyance (e.g., commercial aircraft versus commercial vessel) or
different conveyance types within that mode (e.g., containerized ship
versus non-containerized ship).
APHIS' current user fee structure does charge different fees based
on the mode of conveyance. This is done to preclude cross-
subsidization, and to ensure that the fees correlate to the AQI
services that each mode receives.
We generally do not consider it possible to tier fees within a mode
of conveyance. This is because it is not usually possible to assign a
particular level of sanitary and phytosanitary risk, and corresponding
AQI services, to a conveyance type that is unique to the type. To use
an example within the commercial vessel mode, while agricultural cargo
is often carried in containerized ships, certain types of agricultural
cargo, such as citrus, bananas, and pineapples, are routinely shipped
in break bulk shipments, in which the individual boxes are placed
within a commercial vessel's cargo hull, rather than in containers. In
both instances, CBP personnel need to offload and inspect the cargo for
plant pests, noxious weeds, and overall compliance with APHIS'
regulations. Likewise, a containerized ship may carry cargo with a low
sanitary and phytosanitary risk during one shipment, and a higher
sanitary and phytosanitary risk in a later shipment. The climates of
different ports of export can be unique, and a vessel departing from
one port of export during a particular shipment may face exposure risks
to hitchhiking pests that it does not experience when departing from a
different port. For a similar reason, the route chosen and the time of
year during which the shipment takes place may also contribute to
exposure risks.
In instances in which we have determined that the level of sanitary
and phytosanitary risk is such that AQI services are not warranted for
a particular conveyance type, we can and do exempt certain conveyance
types from our user fees. For example, while we charge commercial
railroad cars a user fee, the regulations have exempted and will
continue to exempt locomotives and cabooses from the railroad car fee.
Likewise, we do not charge a commercial vessel fee for vessels of less
than 100 net tons.
Finally, we do note that CBP's staffing model accounts for sanitary
and phytosanitary risk, so ports of entry that routinely inspect means
of conveyance and cargo with a high phytosanitary and sanitary risk are
assigned more personnel than ports of entry that do not.
Several commenters suggested that APHIS could establish different
user fee tiers for methods of conveyance that carry agricultural cargo
versus those that do not; while other commenters suggested a base fee,
plus additional fees for extended service based on cargo carried.
The current method by which APHIS calculates the AQI user fees, in
which aggregate costs of providing AQI services are divided by number
of instances in which those services are provided, generally does not
currently allow for such a distinction between conveyances carrying
agricultural cargo and those that do not carry agricultural cargo. To
that end, we note that sanitary and phytosanitary inspections are not
only conducted of the cargo carried by a method of conveyance, but also
the method of conveyance itself. We also note that non-agricultural
cargo may present sanitary and phytosanitary risks; for example, gypsy
moth (Lymantria dispar, also known commonly as spongy moth) is known to
infest stone and quarry products.
As noted above, cargo is not the sole factor contributing to the
sanitary and phytosanitary risk associated with a particular means of
conveyance, and the AQI services required for that means of conveyance.
Port of export, route, and time of year of the shipment may also all
contribute to increased risk and extend the AQI services required. As a
result, if we were to establish a base fee, with additional surcharges
based on cargo carried, this would not take all these risk factors into
consideration.
A commenter suggested that fees should be tiered based on handling
volume at a particular port of entry.
The commenter provided no information regarding why handling
volume, that is, the number of instances in which AQI services were
provided at the port, should be considered indicative of the level of
AQI services provided to individual arrivals and would provide a better
basis for setting fees than the basis articulated in the proposed rule.
A single, huge container shipment of cargo that has a significant
sanitary or phytosanitary risk may take as long to inspect, if not
longer, as several smaller shipments of low-risk cargo. We also note
that variances throughout the year in handling volume at particular
ports would require the fee rate to be dynamic, which would lead to
unpredictability in terms of what fee would be assessed from arrival to
arrival, as well as concomitant unpredictability in APHIS and CBP's
revenue stream. It also could lead to staffing and resource allocation
issues at ports of entry, particularly if owners and operators began to
seek out ports with the lowest current fee.
A commenter asked how APHIS will monitor expenditures to ensure the
increased fees are used appropriately.
APHIS employs multiple safeguards to ensure user fee funds are used
appropriately. For example, from an operational perspective, APHIS
maintains all AQI fees we collect in distinct accounts, carefully
monitors the balances in these accounts, and only uses these funds to
pay for our actual costs for providing these distinct services. In
addition, APHIS will continue to maintain, evaluate, and ensure that
our internal controls, which include our expenditure-related accounts
and processes, are operating properly and in compliance with Office of
Management and Budget (OMB) Circular A-123, Management's Responsibility
for Enterprise Risk Management and Internal Control requirements.
Examples of APHIS internal controls include verifications,
reconciliations, authorizations and approvals, and supervisory control
activities. APHIS also complies with Federal audit requirements which
include audit of expenditure-related processes and accounts under the
Chief Financial Officers Act of 1990 (CFO Act) (Pub. L. 101-576), as
amended, the Government Management Reform Act of 1994 (GMRA) (Pub. L.
103-356), as amended, and the Federal Financial
[[Page 38603]]
Management Improvement Act of 1996 (FFMIA) (Pub. L. 104-208, title
VIII), as amended.
A commenter stated that APHIS should amend the regulations to
assess a penalty on airlines and cruise lines that is equivalent to the
amount airlines and cruise lines have failed to lawfully remit to
passengers.
APHIS has no statutory authority to assess such penalties, nor is
this request within the scope of this rulemaking.
One commenter asked how airline passengers can assess that their
fee was appropriately set by APHIS when they are greeted and inspected
not by APHIS, but by CBP.
The Homeland Security Act of 2002 created the Department of
Homeland Security and transferred the function for AQI clearance of
international passengers and certain other AQI functions from APHIS to
CBP.\7\ CBP Officers review passenger manifests, passenger
documentation and interview arriving international passengers. CBP
Officers also refer passengers of interest to the AQI program to CBP
Agriculture Specialists who are funded by AQI user fees for secondary
inspection. As stated previously, rollup reports from the activity-
based cost model are available for public review on the APHIS website
at <a href="https://www.aphis.usda.gov/aphis/ourfocus/business-services/aqi-user-fees/aqi-fee-types/aqi-user-fee-reports">https://www.aphis.usda.gov/aphis/ourfocus/business-services/aqi-user-fees/aqi-fee-types/aqi-user-fee-reports</a>. For example, there are
over 92,000 lines of highly detailed cost data in the FY 2017
international air passenger rollup report.
---------------------------------------------------------------------------
\7\ 6 U.S.C. 231.
---------------------------------------------------------------------------
Finally, several commenters requested that APHIS extend the comment
period for the proposed rule.
One of these commenters posed a series of questions that, the
commenter asserted, APHIS needed to respond to for the public to
provide informed comments on the proposed rule. These included
questions about whether there were budget shortfalls or surpluses in
the years 2013-2016 and 2020-2022, if such shortfalls or surpluses were
factored into the cost-benefit analysis for the rulemaking, and whether
adjustments for inflation would have resulted in shortfalls or
surpluses in the years 2016 to the present. The commenter also asked
why the aircraft fee is increasing if the number of aircraft arrivals
has not changed and if there was a breakdown of how APHIS estimated the
costs of capital costs and staffing and how capital costs were
allocated in airport or non-airport environments.
We disagree with the commenter that APHIS' responses to the
commenter's questions were necessary to evaluate the merits of the
proposed rule. APHIS provided all information necessary to evaluate the
proposed rule to the public in the proposed rule itself and its
supporting documentation. This included, for example, documentation
regarding how the fee model was selected and why it was appropriate,
the cost components that led to the proposed fees using that model, the
rationale for revising particular fee caps, and the basis for our
proposed removal of exemptions. We note that, between September 12,
2023, and September 18, 2023, APHIS hosted webinars for the industries
affected by the rulemaking. During the webinars, we allowed for a
question-and-answer period. We also recorded the webinars and made them
publicly available on the APHIS website at <a href="https://www.aphis.usda.gov/aphis/ourfocus/business-services/aqi-user-fees/aqi-fee-types/aqi-userfee-proposed-rule-webinars">https://www.aphis.usda.gov/aphis/ourfocus/business-services/aqi-user-fees/aqi-fee-types/aqi-userfee-proposed-rule-webinars</a>. During the webinar for the commercial
aircraft fee, which the commenter attended, we responded to each of the
commenter's questions.
Two commenters who requested extension of the comment period stated
that APHIS provided no information regarding how the fees were
calculated.
We made comprehensive rollup reports for the cost components of
each fee available as supplemental documents for the proposed rule.
They were and are available on the APHIS website at <a href="https://www.aphis.usda.gov/aphis/ourfocus/business-services/aqi-user-fees/aqi-fee-types/aqi-user-fee-reports">https://www.aphis.usda.gov/aphis/ourfocus/business-services/aqi-user-fees/aqi-fee-types/aqi-user-fee-reports</a>.
One commenter who requested extension of the comment period stated
that APHIS provided no indication of how the fees would be used.
We disagree. The proposed rule discussed at length the direct and
indirect costs associated with providing the AQI services funded by the
user fees.
Economic Comments
Commenters raised several issues concerning the Regulatory Impact
Analysis that accompanied the proposed rule. These are addressed in the
final Regulatory Impact Analysis that accompanies this final rule.
Revisions to Regulatory Definitions
We proposed to revise some existing definitions and to add new ones
to Sec. 354.3(a). Specifically, we proposed to amend the definitions
for commercial railroad car and commercial truck; to replace the
definition of Customs with one for a definition for Customs and Border
Protection (CBP); and to add definitions for the terms passenger,
reconditioning, and restacking. We received no comments on these
revisions and additions and will adopt most of them accordingly.
However, as discussed below, we have decided not to finalize proposed
revisions to our AQI treatment monitoring fee that would have, among
other things, charged parties for restacking and reconditioning
services provided in connection with AQI treatment services. Because
the terms restacking and reconditioning will not appear in the
regulations as a result of this decision, there is no longer a need to
define these terms and we have not done so in this final rule.
Additionally, for reasons that we discuss below under the section
heading ``Commercial Vessels,'' we are adding two definitions to the
regulations in this final rule, for the terms Great Lakes and Cascadia.
The revisions to the commercial vessel fee described below removed the
term barge from the regulations; as a result, we no longer need a
regulatory definition for the term and are removing it accordingly.
Commercial Vessels
The AQI program inspects, with some exceptions, commercial vessels
of 100 net tons or more arriving at ports of entry into the customs
territory of the United States. AQI user fees for inspection of
commercial vessels are listed in Sec. 354.3(b)(1). We proposed to
increase the user fee per arrival.
We also proposed to eliminate the exemption for barges from Canada;
the exemption is currently found in Sec. 354.3(b)(2)(vi). As discussed
in the pathway analysis that accompanied the proposed rule, 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.
Finally, we proposed that the commercial vessel fee would also not
apply to commercial cruise (passenger) vessels that carry passengers
paying the international passenger fees under Sec. 354.3(f), because
the cost of inspecting the entirety of the vessel is included in the
international cruise passenger fee. That broad proposed exemption would
replace the existing limited exemption in Sec. 354.3(b)(2)(i) for
certain foreign passenger vessels. In this respect, the treatment of
commercial vessels is
[[Page 38604]]
distinct from that of international aircraft carrying passengers, which
are not exempt from the commercial aircraft user fee.
We received 28 comments on these proposed changes to the commercial
vessel fee. All the commenters were generally opposed to the proposed
changes.
Most commenters noted that we proposed to increase the commercial
vessel fee from the current fee of $825 to $3,557.18 in 2028, which was
a higher percent increase than any other fee.
Several of the commenters stated that they would support the fee if
it was correlated to service received. The commenters asserted that the
fees appeared higher than the level of AQI services they received at
ports of entry.
As we discussed in the proposed rule, our revised cost model for
the proposed fees was based on aggregate full-time equivalent (FTE)
hours spent providing services, such as inspections, for a particular
user fee class.
Similarly, a commenter suggested that APHIS should begin to analyze
FTE hours worked by vessel type and revise the commercial vessel fee
based on these findings before issuing a final rule to revise the
commercial vessel fee.
As we noted above, vessel type is not necessarily a reliable
indicator of the level of effort needed to provide AQI services. Cargo,
port of departure, route, time of the year in which the shipment
occurs, and port of arrival all play a contributing role to determining
the sanitary and phytosanitary risk associated with the vessel and the
commensurate level of services warranted. Because these can vary
significantly from shipment to shipment, if we were to conduct such an
assessment, it would be difficult to extrapolate generalized,
defensible conclusions about different vessel types from our current
data set, which is limited to aggregate hours worked providing AQI
services for the commercial vessel user fee class as a whole and number
of instances of providing those services. Our current data is therefore
insufficiently granular to observe those variances. Moreover, as we
mentioned in the proposed rule, cargo from commercial vessels is
routinely offloaded into a joint holding area, and inspected en masse.
We mention this in order to underscore that the assessment requested by
the commenter would need to be conducted de novo, and cannot be
extracted from the existing data used to calculate the fee rates, and
that it would require a fundamental reorientation in the manner in
which cargo inspections are conducted. It is impracticable to conduct
such an assessment at this time, particularly in light of resource
constraints (as noted above, overtime is common at some ports of entry
just to meet core inspection functions) and the economic exigencies
facing the AQI program. To execute the sort of assessment requested by
the commenter, we would need to hire additional port-specific
analytical and billing support, which requires raising the fees to
support the additional personnel.
One commenter stated that, based on data that the commenter
obtained, APHIS had appeared to undercount the number of arrivals of
commercial vessels. The commenter requested that APHIS use a data set
from CBP that they considered to be more accurate in terms of
characterizing arrivals.
APHIS used the same CBP data set as the commenter to calculate the
commercial vessel fee. In reviewing the commenter's concerns, however,
we realized that coastwise arrivals had been inadvertently filtered out
of the data set. Coastwise arrivals refer to arrivals of the same
vessel at a different port of entry, for which AQI services are
provided; for example, a commercial vessel offloading cargo at the port
of Philadelphia, then subsequently offloading at the port of
Wilmington, Delaware, would be making coastwise arrivals. CBP's vessel
arrival fee is set out in their regulations at 19 CFR 24.22(b). That
fee is collected from vessels of 100 net tons or more for each arrival
regardless of the number of arrivals taking place in the course of a
single voyage, with a cap currently set at $5,955 per calendar year.
Because AQI services are provided at each port of entry, an AQI user
fee is charged for each coastwise arrival, though we do not have a cap
on those fees. APHIS charges AQI user fees for each arrival because a
sizable component of the fees is the inspection of the cargo, usually
after it has been offloaded and is in a joint inspection area. Some
vessels offload large volumes of cargo at multiple ports-of-entry
during a single voyage. If the AQI vessel fee were charged on first
arrival only, we would need to increase the fee even more to recover
costs. We charge at each arrival to be more equitable to single port-
of-entry arrivals versus multiple port-of-entry arrival voyages.
Accordingly, the proposed user fees should have been calculated by
including coastwise arrivals within total arrivals. Total program
costs, however, were accurate. When these costs are divided by the
updated arrivals (including coastwise arrivals), the user fee is
correspondingly lower; the numerator (costs) has not changed while the
denominator (number of arrivals) has. Accordingly, in this final rule,
the commercial vessel fee has been lowered as shown in table 4 below.
[GRAPHIC] [TIFF OMITTED] TR07MY24.083
This discovery led APHIS to evaluate all other data sets in the
proposed rule to ensure that all instances in which the fee had been
assessed were accurate. We discovered that, for two other proposed fee
increases, those for commercial aircraft and those for international
air passengers, filtering had also occurred to remove inspections that
occur during preclearance. We discuss this below, in the relevant
sections of the preamble for those fees.
Several commenters opposed the fee increase because it would have a
disproportionate impact on vessels that are not ultra large container
vessels.\8\
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\8\ See the graph for Container Ship Fleet Categories at <a href="https://agtransport.usda.gov/stories/s/Ocean-Container-Fleet-Dashboard/pjaw-nxa9">https://agtransport.usda.gov/stories/s/Ocean-Container-Fleet-Dashboard/pjaw-nxa9</a>.
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We acknowledge that the fees may often have a greater impact on
smaller vessels than larger vessels, but we disagree that smaller
vessels merit a lower fee just because they are smaller. Furthermore,
we disagree that the existence of smaller vessels did not factor into
the fee calculation. The commenters often stated as an assumption that
ultra large container vessels necessitate more intensive AQI services
than commercial vessels that are not ultra large container vessels.
While this is sometimes the case, size of vessel is not the sole
determinant of the level of AQI services warranted for a particular
vessel. As we noted above, cargo, port of departure, route, time of the
year in which the shipment occurs,
[[Page 38605]]
and port of arrival all play a contributing role to determining the
sanitary and phytosanitary risk associated with the vessel and the
commensurate level of services warranted. APHIS also notes that the
rise of ultra large container vessels was not the sole factor
contributing to this fee increase. The change in cost allocation
methodology from number of arrivals to FTE hours was also a significant
factor. As discussed above, APHIS develops fees using the average unit
cost across 3 fiscal years. In the case of the commercial vessel fee,
the unit cost is the arrival of a vessel in foreign trade, including
coastwise arrivals, during a single voyage. The arrivals of vessels in
foreign trade that were not ultra large container vessels brought this
average cost per arrival down to the rates in this final rule. If APHIS
had based the new vessel fee rates exclusively on ultra large container
vessel arrivals, the commercial vessel fee would have been considerably
higher.
Summary tables 5 and 6 for commercial vessel fee calculation below
show that APHIS used actual cost data for FY 2017 through FY 2019 for
commercial vessels, future costs for planned capital expenditures, and
additional staffing, divided by number of users per fiscal year to
arrive at a unit cost. We then adjusted those unit costs to June 2022
dollars, averaged the unit costs across the 3 fiscal years, and finally
adjusted that average unit cost for projected inflation. The discussion
of fee rates relative to other costs of doing business was to
illustrate relative economic impact of the fee, and not to serve as the
basis for fee development.
We included the summary tables to be used as a quick reference
regarding fee development. For more comprehensive cost data information
please see the full rollup reports from the APHIS AQI activity-based
cost model. As we explained above, these questions are answered in the
APHIS AQI cost model data that was cited in the proposed rule and made
available on the APHIS website at: <a href="https://www.aphis.usda.gov/aphis/ourfocus/business-services/aqi-user-fees/aqi-fee-types/aqi-user-fee-reports">https://www.aphis.usda.gov/aphis/ourfocus/business-services/aqi-user-fees/aqi-fee-types/aqi-user-fee-reports</a>.
For October 1, 2024, October 1, 2025, October 1, 2026, fee rates,
APHIS subtracted the January 1, 2024 rate from the October 1, 2027
rate, and divided by 4. This amount became the per phase increase. The
per phase increase was then added to the previous phase amount until
reaching the October 1, 2027 rate.
BILLING CODE 3410-34-P
[[Page 38606]]
[GRAPHIC] [TIFF OMITTED] TR07MY24.084
[[Page 38607]]
[GRAPHIC] [TIFF OMITTED] TR07MY24.085
BILLING CODE 3410-34-C
Notwithstanding the above discussion, we have determined that
certain commercial vessels that operate within the Great Lakes, or in
the region along the coastline between Alaska and Oregon, are uniquely
situated and have created a new commercial vessel fee that is lower
than that for other commercial vessels. This will provide a degree of
regulatory relief for such vessels that is also aligned with the
sanitary and phytosanitary risk that the vessels present. We discuss
these changes below.
Several commenters stated that they operated barges or other
shipping vessels within the Great Lakes, or in the region along the
coastline between Alaska and Oregon. The commenters stated that they
were uniquely situated and that assumptions that APHIS articulated in
the proposed rule about
[[Page 38608]]
the commercial vessel industry as a whole did not apply to them. While
we stated in the proposed rule that total cargo capacity of the global
fleet expanded by more than 63 percent from 2011 through 2020, the
commenters stated that their vessels had not increased in size. In
fact, vessel operators within the Great Lakes stated that the average
size of vessels operating within the Great Lakes had not increased
since the 1970s. Similarly, we stated in the proposed rule that far
fewer vessels had arrived internationally from 2011 through 2020 than
APHIS had predicted, but the commenters stated that their average
number of arrivals per year had remained relatively constant. Further,
we stated in the proposed rule that individual vessels now took much
longer to inspect than they previously had, but the commenters stated
that they had experienced no significant increase in the amount of time
inspections took.
Several commenters stated that visual inspection of their vessels
was often brief, and a few barge operators stated that CBP had never
boarded their vessels. Several commenters also questioned whether the
proposed fees significantly exceeded the level of AQI services provided
to vessels within the Great Lakes and in the region along the coastline
between Alaska and Oregon. Two commenters stated that, at face value,
the fee levels appeared to be set significantly above the level of
inspection services currently provided, which would be inconsistent
with the FACT Act. Several operators stated that they seldom, if ever,
carried agricultural cargo. Finally, the commenters stated that,
because they operated solely within distinct geographical areas between
the United States and Canada, they pose little to no phytosanitary
risk. (As discussed in this document, the geographic area covered by
the port of departure, the route, and the port of arrival all do
contribute to the risk profile associated with a particular commercial
vessel. However, they are not the sole factors; for example, the cargo
carried may itself present a sanitary or phytosanitary risk.) To that
end, several commenters stated that Great Lakes vessels often are too
large to fit through the St. Lawrence seaway lock system and cannot
leave the Great Lakes; one commenter stated that, even if they could
leave the Great Lakes, many Great Lakes vessels are not certified by
the United States Coast Guard to enter the ocean.
Commenters proposed multiple options to address these stated
differences. One option proposed was to entirely exempt vessels
operating within the Great Lakes or in the region along the coastline
between Alaska and Oregon from the commercial vessel fee. This
exemption would apply to all vessels operating within the regions,
including container vessels, break bulk vessels, barges, and all other
commercial vessels. A second option proposed was to retain the current
exemption for certain Canadian barges. A third option proposed was to
apply the fee only to vessels carrying agricultural cargo, and to
exempt commercial vessels that did not carry agricultural cargo. A
fourth option proposed was to retain the existing commercial vessel fee
for vessels operating within the Great Lakes or in the region along the
coastline between Alaska and Oregon, provided that the vessels were not
currently exempt from paying the fee (e.g., barges), but to add an
additional per-container surcharge or otherwise scale it in accordance
with ship size. Finally, a fifth option proposed was to retain the
existing fee, but to adjust it for intervening inflation. The
commenters who provided the fifth option stated that the cost to
inspect commercial vessels operating within the Great Lakes or in the
region along the coastline between Alaska and Oregon should not have
increased above the rate of inflation since the previous fees were put
in place.
After reviewing the comments and available information, including
data from CBP and the U.S. Army Corps of Engineers, as well as
information maintained by the shipping industry in the regions
themselves, we agree that the vessels operating within the Great Lakes,
or in the region along the coastline between Alaska and Oregon, merit
additional consideration. The commenters presented information that
they operate in a distinct geographical area that they seldom depart
from, and sometimes are not physically able to leave. They also
presented information indicating that their departures and arrivals are
often more frequent than those of other commercial vessels, and
publicly available information indicates that the vessels often take
the same or substantially similar routes per shipment and sometimes
carry the same or substantially similar cargo per shipment. Based on
the risk factors identified above, the risk from these vessels is
often, although not always, more well defined. The port of departure,
route, and port of arrival are often the same or substantially similar:
Many vessels are running out and back trips across the Great Lakes or
along the coastline between Alaska and Oregon, sometimes multiple times
a week.
However, as we discuss below, we would not say that these vessels
are always less risky. Cargo can be a significant risk factor. For
example, several areas in Canada are quarantined for European cherry
fruit fly. Cherries from such areas could present a phytosanitary risk
and vessels carrying such cargo would likewise present a risk. For this
reason, we disagree with the first option that proposed to exempt all
such vessels entirely from the commercial vessel fee. We currently
inspect the vessels for possible sanitary and phytosanitary risks, and
such vessels can carry cargo with significant risks. This is true even
if the cargo is not agricultural cargo; as noted above, gypsy moth or
spongy moth (Lymantria dispar) is known to infest stone and quarry
products, so quarry products from an area of Canada that is infested
with the moth do present a phytosanitary risk. For this reason, the
third option also is not viable, because vessels that do not carry
agricultural cargo may still merit AQI inspections.
Insofar as barge operators did not provide verifiable, supporting
information that they only carry cargo with no sanitary or
phytosanitary risk, and do not merit inspection of the vessel itself,
and in light of our aim to achieve full cost recovery, we have decided
not to retain the barge exemption, the second option proposed by
commenters.
We also disagree with the fourth option to assess a per container
surcharge; among other things, this option would incentivize the use of
break bulk vessels, which do not carry containers, to carry
agricultural products between Canada and the United States, because the
vessels would be subject to a lower user fee. Because of their
agricultural cargo, however, these vessels would still need an
equivalent rate of phytosanitary inspection. Accordingly, over time, we
consider it likely that this incentivization would compromise full cost
recovery.
For a similar reason, we also cannot scale the fee based solely on
ship size; a smaller ship containing break bulk agricultural products
may pose a higher phytosanitary risk and thus require more intensive
inspection services than a larger container ship containing no
agricultural products or known host material for plant pests and
noxious weeds. (That being said, as we mentioned previously in this
document, commercial vessels of less than 100 net tons have been, and
will continue to be, exempt from the commercial vessel fee.
[[Page 38609]]
This is true regardless of whether they originate from Canada or any
other foreign country.)
We see merit in the fifth option, however. The commenters presented
significant information suggesting that the commercial vessel fee, as
proposed, may not be appropriate for or commensurate with the level of
AQI services provided to them. This option would allow APHIS to account
for the differences stated by the commenters, and allow APHIS to
further assess the appropriate fee in a future rulemaking. In so doing,
it would effectively keep the current fee for such vessels, with an
allowance, adjustment for inflation, that the commenters suggested and
that we agree is appropriate.
However, we do not think this solution can be applied unilaterally
to all arrivals within the Great Lakes or in the region along the
coastline between Alaska and Oregon, particularly if the vessel carries
cargo that may present a significant sanitary or phytosanitary risk.
Accordingly, in this final rule, we are pursuing the fifth option,
with appropriate modifications to address the foregoing considerations.
Commercial vessels traveling solely between the United States and
Canada and either within the Great Lakes or along the coastline between
Alaska and Oregon (which we are terming ``Cascadia'' out of recognition
of the Cascadian bioregion in which the coastline is located) would be
assessed the following fee, provided that certain conditions, set forth
below, are met: $837.51 in FY 2025, $850.03 in FY 2026, $862.54 in FY
2027, and $875.06 in FY 2028.
To qualify for the lower fee rate, a vessel must meet the following
requirements:
<bullet> Is not carrying cargo originating from countries other
than the United States or Canada.
<bullet> Is not carrying plants or plant products.
<bullet> Is not carrying animals or animal products.
<bullet> Is not carrying soil or quarry products from areas in
Canada listed in 7 CFR 319.77-3 as being infested with gypsy moth. That
section of the regulations governs the importation of gypsy moth host
material.
<bullet> Is not carrying wood packaging material as defined under 7
CFR 319.40-1. In this section of the regulations, ``wood packaging
material'' is defined as ``Wood or wood products (excluding paper
products) used in supporting, protecting or carrying a commodity
(includes dunnage).''
All the above types of cargo may present a sanitary or
phytosanitary risk, and, in instances in which a vessel carries such
cargo, the level of AQI services provided to address this possible risk
would merit the full commercial vessel fee.
To clarify to which vessels the reduced fee could apply, in this
final rule, we are adding definitions for Great Lakes and Cascadia to
the regulations. We have also prepared maps depicting the Great Lakes
and Cascadia regions and are making them available as supporting
documents with this final rule.
We are defining Great Lakes as ``the Great Lakes of North America
and the waters of the St. Lawrence River west of a rhumb line drawn
from Cap de Rosiers to West Point, Anticosti Island, and west of a line
along 63[deg] W longitude from Anticosti Island to the north shore of
the St. Lawrence River.'' This is consistent with the U.S. Coast Guard
definition of the region in their regulations found in 46 CFR 42.05-40.
We are defining Cascadia as ``British Columbia and those ports of
entry into the United States lying south of 59[deg]26'59.316'' N, north
of 43[deg]23'34.152'' N, west of 122[deg]20'31.2'' W, and east of
135[deg]20'2.4'' W.'' CBP's regulations in 19 CFR 101.3 designate
United States ports of entry, and the following ports of entry fall
within the area we are defining as Cascadia:
<bullet> Alaska--Juneau;
<bullet> Alaska--Ketchikan;
<bullet> Alaska--Sitka;
<bullet> Alaska--Skagway;
<bullet> Alaska--Wrangell;
<bullet> Washington--Aberdeen;
<bullet> Washington--Anacortes (Puget Sound);
<bullet> Washington--Friday Harbor (Puget Sound);
<bullet> Washington--Longview;
<bullet> Washington--Port Angeles (Puget Sound);
<bullet> Washington--Seattle (Puget Sound);
<bullet> Washington--Tacoma (Puget Sound);
<bullet> Oregon--Astoria;
<bullet> Oregon--Coos Bay;
<bullet> Oregon--Newport; and
<bullet> Oregon--Portland.
Two commenters stated that they operated container vessels between
New Jersey and Bermuda, with the majority of arrivals into the United
States being unloaded containers that previously contained cargo. The
commenters requested a lower fee for their vessels and similarly
situated operators.
The commenters did not provide sufficient information to
characterize their operation as uniquely situated or similarly situated
to the Great Lakes and Cascadian vessels described above. To cite a few
examples, it was not clear whether the containers ever contained
agricultural cargo, and, if so, whether the empty containers were
cleared of all agricultural debris before return to the United States.
The commenters also did not mention whether the routes were direct, and
what route was used. Based on the absence of information necessary to
evaluate the commenter's claims, we cannot make the determination that
a lower vessel fee is appropriate for the commenters operating
container vessels between New Jersey and Bermuda. APHIS is, however,
open to receiving additional information on this topic and would
consider proposing a revision in the future.
Finally, one commenter encouraged APHIS to explore means for
electronic remittance of the commercial vessel fee.
CBP collects the commercial vessel fee on APHIS' behalf and offers
electronic remittance through its eCBP portal (<a href="http://e.cbp.dhs.gov">e.cbp.dhs.gov</a>) and its
Mobile Receipts and Collections (MCR) solution (<a href="http://cbp.gov/trade/priority-issues/revenue/revenue-modernization/automation-368-and-1002-receipts/mcr-faq">cbp.gov/trade/priority-issues/revenue/revenue-modernization/automation-368-and-1002-receipts/mcr-faq</a>).
In summary, in response to comments, we have lowered the commercial
vessel fee overall to account for coastwise arrivals and have created a
separate commercial vessel fee for certain vessels operating within the
Great Lakes or along the coast between Alaska and Oregon.
Commercial Trucks
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 fee had been set at $7.29 per truck arrival, with an
option, under paragraph (c)(3), to prepay an amount 40 times the
single-arrival fee to obtain a transponder. We proposed to adjust the
fees in that paragraph and to set the corresponding prepaid
(transponder) user fees at an amount 60 times the unrounded fee rates
for each arrival. We further proposed to clarify that prepayments for
purchases of transponders may be made at any time during a calendar
year. The proposed rule did not provide, however, for prorating of the
prepayment cost or allowing credit for individual crossings made prior
to prepayment if the operator of the commercial truck elects to prepay
during a calendar year. This is consistent with CBP's handling of their
truck transponder fee in 19 CFR 24.22(c)(2), and we stated in the
proposed rule that the intent of the proposed change was to better
align our prepayment requirements with those of CBP.
[[Page 38610]]
We also proposed 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 was intended to clarify
application of the fee.
We received two comments from one commenter on the proposed changes
to the fees for commercial trucks.
In the supporting documentation that accompanied the proposed rule,
we indicated that the data that we had obtained from the Department of
Transportation (DOT) regarding freight volume per truck between the
years 2006 and 2021 suggested a 79 percent increase in the number of
tons per truck during that time. The commenter stated that this truck
crossing and freight data did not completely match its own data and
calculations. Specifically, the commenter indicated that its data
indicated lower carrying capacity per truck in 2021 (9.63 tons) and an
average of 22,376 more truck crossings per year between 2006 and 2016.
Assuming truck crossings to be the denominator by which we determined
average freight volume, the commenter stated that its data indicated
that average freight volume was in fact lower in 2006 through 2016 than
we had presented it to be. While the commenter conceded that carrying
capacity per truck had increased between 2006 and 2021, the commenter
stated that carrying capacity had not increased to the magnitude
presented by APHIS, and that these discrepancies resulted in an
overestimation of agricultural risk. The commenter stated that this
overestimation of agricultural risk had resulted in CBP erroneously
believing that additional personnel were needed to inspect commercial
trucks, and that the fee would be lower were it adjusted to reflect
actual freight volume.
The commenter did cite data that differs from the data APHIS cited
in the supporting documentation that accompanied the proposed rule, and
the data in that supporting documentation may have been in error.
However, the data the commenter presented does not directly or
indirectly impact how the fee was set. Neither the disputed numbers nor
the supporting document itself served as the basis for the fee, nor the
analysis of fee impacts in the initial economic analysis. The fee for
this conveyance is not derived from the performance of the industry,
nor did we use cargo capacity as a proxy for the level of effort needed
to inspect trucks. As with the other fees, the commercial truck fee
results from total AQI commercial truck program costs divided by the
number of truck crossings for FY 2017 through FY 2019 to arrive at the
base unit cost.
The commenter itself noted that both its data and APHIS' data
reported the same number of truck crossings per year from 2017 to 2020.
As noted above, the supporting document that the commenter disputed did
not serve as a basis for the fee. It was intended only to indicate that
the freight volume for commercial trucks had increased since 2006, a
contention that the commenter did not dispute in principle, only in
degree. The purpose of the supporting document is to contextualize the
changes in the carrying capacity in the industry, as well as illustrate
the relative size and impact that the fee might have on the conveyance
as a whole. To that end, though, we do note that the commenter's data
does suggest that commercial trucks may have lower cargo capacity than
our supporting documentation suggested. We have evaluated the economic
analysis that accompanies this final rule in light of that information
but determined that its assumptions and conclusions still hold.
Additionally, this supporting document was not used as the basis
for the additional CBP staffing needs. As indicated previously in this
document, CBP's staffing models calculated additional personnel needs
based on estimated throughput as calculated in light of actual
workload, in order to ensure that bottlenecks do not occur in port
operations.
The commenter also expressed concerns about the transponder cost
increasing from 40 to 60 times the per arrival fee. The commenter asked
how we would continue to incentivize transponder use.
As we stated in the proposed rule and the supporting document,
APHIS determined that the average truck transponder is used 90 times
per year, cross-referencing truck border-crossing data and truck
transponder purchase data. Charging 60 times the per crossing fee is
still a 33.3 percent discount, compared to average transponder use. We
consider a 33.3 percent discount compared to average transponder use a
sufficient incentive for transponder use.
The same commenter stated that, because the percentage of increase
for the transponder fee would significantly surpass the percentage
increase for the individual per-crossing fee, the transponder would no
longer be incentivized, and commercial truck operators could abandon
the transponder in favor of the single arrival fee.
The CBP Transponder system does not track the individual number of
crossings per transponder; instead, it tracks the total number of
crossings. Collections for single payer and transponder crossings are
separate. The number of single payer crossings is determined by
dividing single payer collections by the fee rate. Single payer
crossings are subtracted from total crossings to determine transponder
crossings. We determined average transponder crossings by dividing
total transponder crossings by total transponders purchased
(transponder collections divided by transponder fee). Given that APHIS
found that the average transponder is used 90 times a year, charging 60
times the per crossing fee still significantly incentivizes the
transponder over the per crossing fee for the average commercial truck
operator, despite the differences in percent increase between the two
fees. It is possible that some truck operators who make fewer than 60
crossings will decide to pay the per crossing fee as a result of this
rulemaking; however, we do not foresee the transponder being generally
abandoned in the manner suggested by the commenter.
We acknowledge that we proposed to raise both the per arrival
commercial truck fee and the multiple that results in the transponder
fee. Additionally, while we proposed to phase in the increases to the
per arrival fee, we did not propose to phase in the increase to the
multiple: We proposed that the multiple would immediately increase from
40 times to 60 times. To help facilitate transponder use in the first
year of implementation of the revised fee, we will set the fee at a
multiple of 50 times the individual crossing fee for the period between
October 1, 2024 and September 30, 2025. We have revised the regulatory
text accordingly.
The commenter stated that APHIS should work with our counterparts
in Canada and Mexico to develop policies that will mitigate the risk of
pest importation or other potential threats while reducing, exempting,
or eliminating fees and other regulatory costs impacting North America
trade.
APHIS works collaboratively with our colleagues in Canada and
Mexico to develop harmonized polices to mitigate the risk of pest
importation. For example, APHIS is the United States' representative to
the North American Plant Protection Organization, or NAPPO, a regional
plant protection organization. Created in 1976, NAPPO coordinates the
efforts among the United States, Canada, and Mexico to
[[Page 38611]]
protect their plant resources from the entry, establishment, and spread
of harmful plant pests, while facilitating safe intra- and inter-
regional trade. Through NAPPO, APHIS works closely with its regional
counterparts and industries to develop harmonized regional standards
and approaches for managing pest threats.
Additionally, outside of the auspices of NAPPO, APHIS works closely
with our North American National Plant Protection Organization (NPPO)
counterparts, the Canadian Food Inspection Agency (CFIA) and Mexico's
Servicio Nacional de Sanidad, Inocuidad y Calidad Agroalimentaria, to
harmonize our approaches to phytosanitary risk to the extent possible.
Examples of this collaboration include the United States-Canada
Greenhouse-Grown Plant Certification Program (GCP) and the Netherlands
bulb preclearance program. The GCP has been active since 1996 and
allows greenhouse-grown indoor houseplants and outdoor bedding plants
to move between Canada and the United States using a certification
label in lieu of a phytosanitary certificate (PC), provided the plants
meet the phytosanitary import requirements of both Canada and the
United States. The GCP certification label eliminates the cost of a PC
for certified nurseries. For the Netherlands bulb preclearance program,
APHIS and CFIA have harmonized our operational workplan for imports
since 2008.
Finally, as discussed previously in this document, APHIS has
pursued measures to improve efficiencies and reduce costs associated
with the AQI program.
However, the commenter's assumption that North American trade
presents little or no sanitary and phytosanitary risk that merits AQI
services is incorrect; under APHIS' regulations in titles 7 and 9 of
the Code of Federal Regulations, there are numerous restrictions on the
importation of animals, animal products, plants, and plant products
from Canada and Mexico.
We note also that North American trade is no longer exclusively
North American; for example, APHIS is aware that 194 countries send
United States-bound freight through Canada seaports, and then across
the border via truck and rail. The increased risk posed by commodities
arriving through our North American trading partners makes it necessary
to increase our level of effort to safeguard United States agriculture.
This increased effort requires additional personnel, equipment, and
facilities and, therefore, incurs additional costs. The AQI program
must adjust the fees to recover these costs. In short, the elimination
or exemption of AQI user fees for North American trade would
significantly adversely impact full cost recovery because we would
still need to provide AQI services to address the sanitary and
phytosanitary risks posed by such trade.
The commenter stated that the information and data provided by
APHIS does not explain how the proposed fee increases were calculated
based upon the various services performed by APHIS inspectors. The
commenter expressed concern that APHIS did not calculate the proposed
fees based upon the current and future needs of the agency, but rather
upon what they assume motor carriers can afford according to operating
cost data.
The summary tables for the commercial truck fee calculation (tables
7 and 8 below) show that APHIS used actual cost data for fiscal years
2017 through 2019 for commercial truck, future costs for planned
capital expenditures, and additional staffing, divided by number of
truck arrivals per fiscal year to arrive at a unit cost. We then
adjusted those unit costs to June 2022 dollars, averaged the unit costs
across the 3 fiscal years, and finally adjusted that average unit cost
for projected inflation. The discussion of fee rates relative to other
costs of doing business was to illustrate relative economic impact of
the fee, and not to serve as the basis for fee development.
The summary tables are intended to be a quick reference regarding
fee development. For more comprehensive cost data information please
see the full rollup reports from the APHIS AQI activity-based cost
model on the APHIS website at <a href="https://www.aphis.usda.gov/aphis/ourfocus/business-services/aqi-user-fees/aqi-fee-types/aqi-user-fee-reports">https://www.aphis.usda.gov/aphis/ourfocus/business-services/aqi-user-fees/aqi-fee-types/aqi-user-fee-reports</a>. As we explained above, these questions regarding how the fees
were arrived at are answered in the APHIS AQI cost model data that was
cited in the proposed rule and made available on the APHIS website at
the link above.
For October 1, 2024, October 1, 2025, October 1, 2026, fee rates,
APHIS subtracted the January 1, 2024 rate from the October 1, 2027
rate, and divided by 4. This amount became the per phase increase. The
per phase increase was then added to the previous phase amount until
reaching the October 1, 2027 rate.
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[[Page 38612]]
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[[Page 38613]]
[GRAPHIC] [TIFF OMITTED] TR07MY24.087
BILLING CODE 3410-34-C
In summary, in response to comments regarding the commercial truck
fee, we have lowered the cost of a transponder to 50 times the per
arrival fee for the period between October 1, 2024 and September 30,
2025. The fees are otherwise being finalized as proposed.
Commercial Railroad Cars
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. We
proposed to increase the user fee per arrival and to set the
corresponding prepaid user fees at an amount 48 times the AQI user fee
for each arrival.
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 proposed to amend Sec. 354.3(d)(1) to
remove the references to loaded cars. We proposed this change
[[Page 38614]]
because APHIS does not collect AQI user fees for unloaded railroad cars
under the current regulations; however, CBP inspects all commercial
railroad cars, loaded and unloaded. We received no comments on this
proposed change and will adopt it accordingly.
We also proposed to revise paragraph (d)(4) to provide for
submission of remittance not only by The Association of American
Railroads (AAR), and the National Railroad Passenger Corporation
(AMTRAK), as is the case in the current regulations, but by individual
railroad companies as well. This revision would more closely align our
requirements pertaining to railroad car user fees with those of CBP as
set out in 19 CFR 24.22(d).
We received two comments from one commenter on the proposed changes
to the fees for commercial railroad cars.
The commenter opposed the proposed fee increases in general and the
increase to the prepaid railroad car fee in particular. The commenter
noted that, in the economic analysis that accompanied the proposed
rule, we indicated that the number of railroad car arrivals has
remained relatively steady, averaging approximately 3.5 million from
2014 to 2022. The commenter questioned why the per arrival fee and
prepaid fee would increase significantly if arrivals had not
commensurately increased.
The per arrival fee was derived by dividing the actual programs
costs plus planned capital expenditures and additional staffing costs
(adjusted for inflation) associated with providing AQI services for
railroad cars by the number of anticipated arrivals. Accordingly, an
increase or decrease in the forecasted number of arrivals would not
itself have caused the fee to change, if aggregate costs remained
correlated with arrivals. However, as stated in the proposed rule, the
main reason for the per arrival fee increase for commercial railroad
cars is that what falls under the definition of a railroad car as set
forth in CBP's regulations in 19 CFR 24.22(d)(1) is now much larger
than what the current inspection fee is designed to cover. The fees
were 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. This, in turn, has increased the amount of cargo
in general arriving into the United States by rail. In sum, although
arrivals have remained relatively constant, costs have increased
significantly due to the change in size of railroad cars.
With regard to the increased cost of the prepaid fee, as stated in
the proposed rule, based upon analysis of collections and arrival data,
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. APHIS notes,
however, that the prepaid railroad car user fee is optional, and, as we
noted in the proposed rule, very few railroad companies use the prepaid
option. If an entity determines that paying per arrival fee is more
advantageous, they may do so.
The commenter stated that it was not clear that the fee increases
are directly linked to the need for more resources and staff to inspect
railroad cars specifically. The commenter noted that while costs for
staffing and capital resources are noted generally, it is not clear if
those costs are based on deficits experienced by the agency due to
railroad car inspection duties.
APHIS made available a high-level cost summary as a supporting
document with the proposed rule,\9\ and comprehensive rollup reports
directly from the APHIS AQI cost model were available with the proposed
rule on the APHIS website at <a href="https://www.aphis.usda.gov/aphis/ourfocus/business-services/aqi-user-fees/aqi-fee-types/aqi-user-fee-reports">https://www.aphis.usda.gov/aphis/ourfocus/business-services/aqi-user-fees/aqi-fee-types/aqi-user-fee-reports</a>.\10\
Moreover, the summary tables for commercial railroad car fee
calculation (tables 9 and 10 below) show that APHIS used actual cost
data for fiscal years 2017 through 2019 for railroad cars, future costs
for planned capital expenditures and additional staffing, divided by
number of users per fiscal year to arrive at a unit cost. APHIS
adjusted those unit costs to June 2022 dollars, averaged the unit costs
across the 3 fiscal years, and finally adjusted that average unit cost
for projected inflation. The summary tables are intended to be a quick
reference regarding fee development. For more comprehensive cost data
information please see the full rollup reports from the APHIS AQI
activity-based cost model.
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\9\ The document, titled ``AQI User Fee Input Costs and Cost
Allocation Summary,'' can be accessed online at <a href="https://www.regulations.gov/document/APHIS-2022-0023-0035">https://www.regulations.gov/document/APHIS-2022-0023-0035</a>.
\10\ Due to the size of the files, the rollup reports are
available on the APHIS website at <a href="https://www.aphis.usda.gov/aphis/ourfocus/business-services/aqi-user-fees/aqi-fee-types/aqi-user-fee-reports">https://www.aphis.usda.gov/aphis/ourfocus/business-services/aqi-user-fees/aqi-fee-types/aqi-user-fee-reports</a>. The rollup reports must be downloaded before viewing.
---------------------------------------------------------------------------
For October 1, 2024, October 1, 2025, October 1, 2026, fee rates,
APHIS subtracted the January 1, 2024 rate from the October 1, 2027
rate, and divided by 4. This amount became the per phase increase. The
per phase increase was then added to the previous phase amount until
reaching the October 1, 2027 rate.
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[[Page 38615]]
[GRAPHIC] [TIFF OMITTED] TR07MY24.088
[[Page 38616]]
[GRAPHIC] [TIFF OMITTED] TR07MY24.089
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The commenter stated that the proposed rule did not appear to
consider the use of technology by APHIS to reduce inspection costs, in
lieu of raising fees, though the commenter did not specify what kinds
of technology APHIS might use to reduce inspection costs.
As we discussed above, the AQI program has made significant efforts
to reduce program costs while maintaining a robust agricultural
safeguarding program. APHIS also notes that the evaluation,
procurement, maintenance, and upgrading of technology also carries a
cost, as well as the cost of training personnel or the hiring of new
personnel skilled in handling the technology.
In summary, we are finalizing the commercial railroad car fee as
proposed.
Commercial Aircraft
APHIS inspects international commercial aircraft arriving at
airports in the customs territory of the United
[[Page 38617]]
States. These inspections cover commercial aircraft capable of carrying
cargo and passengers, regardless of whether cargo or passengers are on
a particular flight. AQI user fees for inspection of commercial
aircraft per arrival are listed in Sec. 354.3(e)(1). The current fee
is $225 per arrival. We proposed to adjust the fee in that paragraph to
increase the user fee per arrival.
In addition to the proposed fee changes, we proposed to remove
paragraph (e)(2)(iv) to eliminate the current fee exemption for
aircraft with 64 or fewer seats.
We also proposed to require monthly, rather than quarterly,
remittances for the commercial aircraft fee, clarify our remittance
requirements, and provide for electronic payments and statements. We
further proposed to include in the regulations information on agents
responsible for ensuring compliance with paying the user fees and a
requirement for entities to notify APHIS in the event they have a
change in personnel responsible for fee payments.
We received five comments on these proposed changes. All the
commenters were generally opposed to the proposed changes.
A commenter stated that we needed to disclose the number of
aircraft inspected per inspector and number of plant pests or noxious
weeds found during these inspections per day, month, or year, in order
to validly assess the efficacy of the current inspections and the need
for the fee increases.
The number of aircrafts inspected per inspector is materially
irrelevant to evaluating the base costs for the proposed fee. In the
AQI cost model used to set the proposed fee, we evaluated the aggregate
time currently needed to conduct all commercial aircraft inspections,
whether they were conducted by one inspector or multiple inspectors at
a particular port of entry. We do note, however, that CBP's staffing
model indicated that additional staff were needed to inspect aircraft
and air cargo to match personnel to throughputs and workload.
As we discussed above, a host of factors can contribute to the
sanitary and phytosanitary risk associated with a particular arrival.
This includes the cargo, the country of departure, the route chosen,
the port of entry, and the time of year when the shipment takes place.
Furthermore, the sanitary and phytosanitary risk in foreign regions
that ship to the United States is not static and past import history is
not necessarily indicative of future trends. A disease or pest of
concern not previously known to exist in the country could be
introduced; climatic conditions for a particular season could be
especially conducive to pest populations (this is becoming increasingly
common due to the climatic volatility associated with climate change);
industry downturns could reduce monitoring and suppression efforts at
places of production; or regime change could downsize the foreign
government's sanitary and phytosanitary efforts. Sometimes multiple
factors can occur simultaneously.
It is important to note, however, that the introduction and
establishment of plant pests within the United States has significant
economic consequences both for APHIS and for the affected industries.
As we discussed in the proposed rule, 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, in addition to the direct and indirect losses experienced
by the affected industries themselves. Even plant pest outbreaks in a
single State can prove quite costly: APHIS recently had to request
$103.5 million in emergency funding to address the effects of fruit fly
outbreaks in California.
The same commenter stated that the proposed rule appeared to state
that APHIS uses the commercial aircraft fee and international passenger
fee to cross-subsidize other fee areas. The commenter specifically
cited the following from the preamble of the proposed rule:
``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 final 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.'' The commenter
asserted that APHIS failed to explain the anticipated reduction in
percentage of total collections paid by the air sector, and whether
this indicates that the air sector industry overpaid in FY 2017 through
FY 2019 and thus cross-subsidized other user fee areas.
As discussed in the proposed rule, APHIS updated its AQI cost model
to allocate certain costs based upon the number of frontline FTE hours.
In contrast, in the 2015 rulemaking, the cost model allocated those
costs based upon the number of arrivals. Our updated model resulted in
more accurate cost allocations based upon level of effort in each area,
and the percentage of total collections associated with the air sector
shifted accordingly. No cross-subsidization of other modes occurred
between FY 2017 and FY 2019. Revenue from other fees will increase more
than aircraft and air passenger fees, making the relative revenue from
aircraft and air passengers a smaller percentage of total revenue. We
disagree with the commenters' interpretation of our statements in the
proposed rule.
A commenter stated that APHIS did not recognize fundamental changes
since 2020 to CBP's customs clearance process, specifically for e-
Commerce-driven parcel processing and de minimis (Entry Type 86)
shipments.
APHIS did not propose to charge a fee for individual parcels. We
note, however, that entry type has no bearing on sanitary or
phytosanitary risk.
A commenter stated that international mail shipments already pay
customs fees.
The customs fees mentioned by the commenter are unrelated to AQI
services, but rather other customs services provided by CBP.
International mail shipments pay specific Customs entry fees to CBP,
but those are not for AQI inspections. APHIS does not charge an AQI
user fee specifically for international mail shipments. Rather, those
costs are allocated to the fee for commercial aircraft. While the AQI
program is related to the customs entry process, funds collected by CBP
through their various fees do not fund AQI activities. AQI cargo
activities are funded through AQI user fees and not CBP fees.
A commenter stated that users were asked to accept the proposed
fees at face value without any means to review how APHIS arrived at the
proposed user fees outlined in the proposed rule.
We disagree. APHIS AQI has prioritized transparency in this
rulemaking and gone to great lengths to make its data available. As we
explained above, the APHIS AQI cost model data was cited in the
proposed rule and made available on the APHIS website. We also
referenced the data in the stakeholder webinars. We also provided the
data and link via stakeholder announcement, and we further explained
via a dedicated AQI cost model video and corresponding stakeholder
announcement. APHIS web analytics showed an increase in AQI cost model
data traffic following each of the above engagements. At least one
stakeholder specifically referenced the data in their comment, making
it clear the data was available and usable by stakeholders for the
purpose of notice
[[Page 38618]]
and comment. Moreover, the summary tables for commercial aircraft fee
calculation (tables 11 and 12 below) show that APHIS used actual cost
data for FY 2017 through FY 2019 for commercial aircraft, future costs
for planned capital expenditures and additional staffing, divided by
number of commercial aircraft arrivals per fiscal year to arrive at a
unit cost. APHIS adjusted those unit costs to June 2022 dollars,
averaged the unit costs across the 3 fiscal years, and finally adjusted
that average unit cost for projected inflation. The summary tables are
intended to be a quick reference regarding fee development. For more
comprehensive cost data information please see the full rollup reports
from the APHIS AQI activity-based cost model available on the APHIS
website at <a href="https://www.aphis.usda.gov/aphis/ourfocus/business-services/aqi-user-fees/aqi-fee-types/aqi-user-fee-reports">https://www.aphis.usda.gov/aphis/ourfocus/business-services/aqi-user-fees/aqi-fee-types/aqi-user-fee-reports</a>.
For October 1, 2024, October 1, 2025, October 1, 2026, fee rates,
APHIS subtracted the January 1, 2024 rate from the October 1, 2027
rate, and divided by 4. This amount became the per phase increase. The
per phase increase was then added to the previous phase amount until
reaching the October 1, 2027 rate.
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[[Page 38619]]
[GRAPHIC] [TIFF OMITTED] TR07MY24.090
[[Page 38620]]
[GRAPHIC] [TIFF OMITTED] TR07MY24.091
BILLING CODE 3410-34-C
A commenter stated that APHIS excluded data showing potential AQI
program surpluses from 2016 to the present, if AQI fees had been
adjusted for inflation in the 2015 rulemaking.
---------------------------------------------------------------------------
\11\ As described in: <a href="https://www.regulations.gov/document/APHIS-2022-0023-0010">https://www.regulations.gov/document/APHIS-2022-0023-0010</a>.
---------------------------------------------------------------------------
The 2015 rulemaking did not adjust the fees for inflation, and
positing a counterfactual scenario in which it did is materially
irrelevant to assessing the proposed fees. The fees in this proposed
rule were based on actual costs for 3 fiscal years, plus capital
planning and future staffing costs, all adjusted for inflation. The
fees were developed using Activity Based Costing to support full cost
recovery.
A commenter stated that the fee exemption for aircraft with 64 or
fewer seats should remain because the commenter claimed that our study
was predicated on a misunderstanding of the reason for the exemption.
The commenter stated that, in the 1992 rule that had established the
exemption, APHIS had cited two bases for the exemption to the fee. The
first was that such aircraft required little to no phytosanitary
inspection. The second was that such an exemption was predicated on the
per-passenger cost differential that made it ``difficult for small
commuter airlines to compete with larger airlines for business.'' The
commenter further contended that our study had assumed that exempted
aircraft had an increased exposure risk to plant pests since the 1992
exemption was established, without identifying the actual increased
phytosanitary risk now associated with such aircraft, which the
commenter stated could only be substantiated through pest detections on
exempted aircraft. Finally, the commenter stated that if AQI services
are not being provided for such exempted aircraft, removing the
exemption would charge a user fee in the absence of services provided,
and thus violate the FACT Act.
[[Page 38621]]
In 1991, when this fee exemption was first established it exempted
aircraft with 30 or fewer seats which are not carrying cargo and are
not equipped to offer inflight food service. We explained that we
exempted those aircraft because we did not provide AQI services to the
aircraft (56 FR 37483, August 7, 1991). In 1992, when we proposed to
expand the fee exemption to aircraft with 64 or fewer seats, we
explained that this was intended to exempt commuter aircraft that
require little or no inspection from the per aircraft inspection fee
(57 FR 56862, December 1, 1992). In other words, the initial exemption
for aircraft with 30 or fewer seats was based on our determination that
no AQI services were being provided for such aircraft, and the
expansion to 64 or fewer seats was based on an assumption that such
aircraft were commuter in nature and would not require such an
inspection.
It is worth noting that the 1992 proposed rule did not also
predicate the exemption on the per-passenger cost differential between
small commuter airlines and larger airlines. The language cited by the
commenter was articulated in the section of the preamble that evaluated
the economic impacts of the rule pursuant to Executive Order 12291
(since rescinded) and the Regulatory Flexibility Act. We were
characterizing the effects of the rulemaking on small entities, not
articulating a basis for the rulemaking.
Now, 30 years after that rulemaking, CBP does in fact conduct
inspections on aircraft with 64 or fewer seats. These inspections incur
costs on the part of the AQI program. The FACT Act specifically
authorizes us to prescribe and collect fees sufficient to cover the
cost of providing AQI services in connection with the arrival of
commercial aircraft at a port in the customs territory of the United
States (21 U.S.C. 136a(a)(1)(A)).
To address whether such inspections are warranted, we re-evaluated
the sanitary and phytosanitary risks posed by aircraft with 64 or fewer
seats and the results of this pathway analysis indicated that aircraft
with 64 or fewer seats do pose phytosanitary risk to the United States.
Specifically, we found that the variety of aircraft origins worldwide
(countries/airports) and destinations in the United States (States/
airports) for aircraft with 64 or fewer seats was similar to or
slightly higher than those of aircraft with 65 or more seats. For
comparison and context, between FY 2016 and FY 2018, aircraft with 65
seats or more averaged 2,272 routes. With an average of 1,224 flight
routes from calendar years 2016 to 2018, aircraft with 64 or fewer
seats had many risks of exposure to hitchhiking pests, as well as many
risks to expose pests to a large variety of environments in the United
States. Exposure risk was used in order to characterize sanitary and
phytosanitary risk because pest detections on commercial aircraft are
not categorized based on whether the aircraft has 65 or more or 64 or
fewer seats. In sum, while inspection may not have been necessary based
on phytosanitary conditions in 1993, when we originally established the
exemption, that is no longer the case today.
A commenter stated that our basis for removing the exemption was to
create an additional funding stream for the AQI program.
Our basis for removing the exemption, as articulated in the
proposed rule and its supporting documentation, and reiterated above,
is to fulfill our agricultural safeguarding mandate and achieve full
cost recovery. Our articulated assumptions for the exemption in 1991
and 1992, respectively, are no longer indicative of air travel
conducted by planes with 64 or fewer seats, and the current operational
dynamics of such travel carry a sanitary and phytosanitary risk that
merits AQI services.
In light of the fact that small commercial aircraft have not
previously been subject to the fee, APHIS believes that additional time
is warranted to allow operators to come into compliance. Accordingly,
APHIS is delaying the effective date for removal of the exemption for
aircraft with 64 or fewer seats until April 1, 2025.
Two commenters stated that APHIS should not change from quarterly
to monthly fee remittances, because it would increase the paperwork
burden on airlines. Another commenter stated that monthly remittance
would increase the burden on express carriers and would be out of step
with other user fees they remit, which are almost all done quarterly.
We do not consider, and the commenters did not provide any
evidence, that the revised remittance procedures to be more burdensome
than the current procedures. Under the proposed rule, payments would be
remitted on a monthly basis after a 90-day grace period--for example,
January fees would be remitted to APHIS at the end of April, February
fees at the end of May. Nonetheless, monthly remittance itself is
necessary. Without the authority to prescribe and collect fees to
maintain a reasonable balance in the AQI account, APHIS needs to move
to a monthly remittance schedule to ensure smoother and more stable
cash flow. In terms of paperwork burden, we expect a negligible
difference between quarterly and monthly reporting, because the
proposed rule does not change the information required for an
individual month. For example, remittance reporting for the month of
October is identical regardless of reporting only for October or
whether issuing a quarterly report for October, November, and December
of any given year.
In addition, we note that the revised procedures should make
aspects of reconciliation and remittance easier, rather than harder.
For example, the new monthly remittance schedule provides for a 90-day
reconciliation period for each month, whereas the current quarterly
remittance schedule provides a 90-day reconciliation period for the
first month of the quarter, a 60-day reconciliation period for the
second month of the quarter, and only a 30-day reconciliation period
for the third month of the quarter.
BILLING CODE 3410-34-P
[[Page 38622]]
[GRAPHIC] [TIFF OMITTED] TR07MY24.092
[GRAPHIC] [TIFF OMITTED] TR07MY24.093
BILLING CODE 3410-34-C
Another commenter noted that our proposed rule required the use of
remittance worksheets as part of remittance procedures. The commenter
expressed opposition to the use of the remittance worksheet as
burdensome.
Our intent in proposing to require the use of the worksheet was
primarily as a service to regulated entities in order to facilitate
remittance; as noted in the proposed rule, entities currently submit
remittance in a variety of formats, and some entities submit more
information than is necessary. We believed that use of the worksheet
would facilitate remittance processes for regulated entities by making
them more standardized and streamlined.
Given the comments received that stated that the worksheet could be
more burdensome than the status quo, however, we are stating in this
final rule that the remittance worksheet is not mandatory. Entities may
elect to use it depending on whether or not they find it less
burdensome than current remittance practices. However, APHIS again
notes that while the worksheet is not mandatory, there is mandatory
information that must be provided in remittance statements, and also
notes that many entities provide information in their remittance
statements that goes beyond APHIS' requirements. For those entities
that choose to use existing
[[Page 38623]]
remittance statements rather than the worksheet, the remittance
worksheet serves as a guide for the remittance statement, even if an
entity chooses not to use the worksheet itself.
The same commenter stated that APHIS had not made the remittance
worksheet available for review as part of the supporting documents for
the proposed rule. Without viewing the worksheet, the commenter stated
that they could not ascertain whether it would be less burdensome or
more burdensome than the status quo. The commenter also stated that we
had an obligation to make the worksheet available during the comment
period in order for commenters to provide informed comments on the
accuracy of the estimate of burden articulated in the Paperwork
Reduction Act section of the proposed rule.
While it is true that APHIS omitted the worksheet from the specific
suite of supporting documents associated with the proposed rule, the
remittance worksheet has been available on the APHIS website at <a href="https://www.aphis.usda.gov/mrpbs/userfees/remittance-form.pdf">https://www.aphis.usda.gov/mrpbs/userfees/remittance-form.pdf</a> since well
before the proposed rule was published and has been used by some
entities for more than 15 years.
Nonetheless, as previously stated, in this final rule, use of the
remittance worksheet is not mandatory.
Finally, as noted above, in reviewing the data on which the
proposed fee increases were based, we noticed that the total costs
associated with commercial aircraft were accurate, but the denominator
(number of commercial aircraft arrivals) was not accurate, and did not
include precleared aircraft. APHIS has corrected this error, resulting
in lower commercial aircraft fees than proposed. In this final rule,
the commercial aircraft fees are as follows: $281.39 for FY 2025,
$300.78 for FY 2026, $320.61 for FY 2027, and $340.90 for FY 2028. As
noted above, we also are not requiring the use of a worksheet for the
remittance of the fees.
International Passengers Arriving at Airports and Seaports
AQI user fees for inspection of commercial air passengers are
listed in Sec. 354.3(f)(1). The current fee is $3.83 per arrival. We
proposed to adjust the AQI user fee per arrival for commercial air
passengers. The commercial air passenger fee will increase relative to
the current fee.
Similarly, the AQI user fee for inspection of commercial cruise
vessel passenger fee is also listed in Sec. 354.3(f)(1). The current
fee is $1.68 per arrival. We proposed to adjust the AQI user fee for
inspection of commercial cruise passengers. The commercial cruise
vessel passenger fee will decrease relative to the current fee. The
change in the cruise passenger fee owes mainly to the change in
allocation criteria from number of inspection events (passengers) to
FTE hours.
We also proposed several clarifications in paragraph (f) of Sec.
354.3 related to applicability, payment, and handling of international
passenger user fees collected and remitted for trips not taken. In
proposed paragraph (f)(1), we 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 CBP's
definition of passenger in 19 CFR 24.22(g)(1)(v). As noted above, we
also proposed to add a definition of passenger to help clarify these
requirements.
In proposed changes to paragraphs (f)(5) and (6), we 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 with respect to the commercial aircraft fee. Also as
discussed above in relation to paragraph (e) of Sec. 354.3, 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,
as opposed to the current 31-day period after the close of the quarter.
For example, under this final rule, 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 proposed 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) stated
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 AQI user
fees in the original form of payment to the purchaser for trips not
taken.
Proposed paragraph (f)(5)(vi) described 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 or written statement. In keeping with other proposed changes
to remittance timeframes, the revised remittance worksheet or written
statement 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.
We received three comments about the proposed changes to the
remittance procedures. The commenters generally opposed the proposed
changes.
One commenter agreed with the intent of proposed paragraph
(f)(5)(vi), which would allow airlines to request a credit from APHIS.
The commenter stated that in such instances, AQI services are not
actually provided, so a mechanism of recovering the remitted user fee
for those services is warranted. The commenter also noted that the
paragraph could be construed to mean that airlines must remit all fees
collected to APHIS, and then only subsequently revise the remittance by
requesting credit for flights not taken. The commenter stated that in
instances when the flight is not taken and a refund occurs before an
initial remittance of the fee is due to the Agency, airlines should be
authorized to reconcile this in the initial remittance, rather than a
subsequent revision.
The commenter strongly objected to proposed paragraph (f)(5)(v),
however. In addition to citing numerous logistical obstacles with its
implementation, the commenter stated that, in proposing to prescribe
the method by which airlines must refund fees to passengers, APHIS had
exceeded its statutory authority under the FACT Act.
After reviewing this comment, we acknowledge that the commenter
raised points that merit further consideration. APHIS has therefore
elected not to finalize paragraph (f)(5)(v).
We will retain the substance of paragraph (f)(5)(vi), though we
have renumbered to paragraph (f)(5)(v). We have modified the proposed
provisions of that paragraph in order to reflect the fact that the use
of a remittance worksheet will be optional. Additionally, we clarify
that the provision applies only in instances when an airline requests
credit after it
[[Page 38624]]
remitted the fee to APHIS. If an airline has reconciled a trip not
taken with the customer prior to remittance to APHIS, no subsequent
action is needed.
Finally, based on a review of data, the fee for commercial air
passengers will be lower than originally proposed. The total costs
associated with commercial air passengers was accurate; however, the
denominator, that is, the number of air passengers, did not include
precleared air passengers at certain ports of departure. APHIS
corrected this error, resulting in a lower air passenger fee than
proposed. In this final rule, the fees are as follows: $3.71 in FY
2025, $3.84 in FY 2026, $3.98 in FY 2027, and $4.12 in FY 2028.
The summary tables for AQI International Air Passenger Fee
Calculation (tables 15 and 16 below) show that APHIS used actual cost
data for FY 2017 through FY 2019 international air passengers, future
costs for planned capital expenditures and additional staffing, divided
by number of international air passengers per fiscal year to arrive at
a unit cost. APHIS adjusted those unit costs to June 2022 dollars,
averaged the unit costs across the 3 fiscal years, and finally adjusted
that average unit cost for projected inflation. The summary tables are
intended to be a quick reference regarding fee development. For more
comprehensive cost data information please see the full rollup reports
from the APHIS AQI activity-based cost model available on the APHIS
website at <a href="https://www.aphis.usda.gov/aphis/ourfocus/business-services/aqi-user-fees/aqi-fee-types/aqi-user-fee-reports">https://www.aphis.usda.gov/aphis/ourfocus/business-services/aqi-user-fees/aqi-fee-types/aqi-user-fee-reports</a>.
For October 1, 2024, October 1, 2025, October 1, 2026, fee rates,
APHIS subtracted the January 1, 2024 rate from the October 1, 2027
rate, and divided by 4. This amount became the per phase increase. The
per phase increase was then added to the previous phase amount until
reaching the October 1, 2027 rate.
BILLING CODE 3410-34-P
[[Page 38625]]
[GRAPHIC] [TIFF OMITTED] TR07MY24.094
[[Page 38626]]
[GRAPHIC] [TIFF OMITTED] TR07MY24.095
[[Page 38627]]
We received no comments on the AQI cruise vessel passenger fee and
are finalizing it as proposed.
The summary tables for AQI Cruise Vessel Passenger Fee Calculation
(tables 17 and 18 below) show that APHIS used actual cost data for FY
2017 through FY 2019 by user class, future costs for planned capital
expenditures and additional staffing, divided by number of users per
fiscal year to arrive at a unit cost. APHIS adjusted those unit costs
to June 2022 dollars, averaged the unit costs across the 3 fiscal
years, and finally adjusted that average unit cost for projected
inflation. The summary tables are intended to be a quick reference
regarding fee development. For more comprehensive cost data information
please see the full rollup reports from the APHIS AQI activity-based
cost model available on the APHIS website at <a href="https://www.aphis.usda.gov/aphis/ourfocus/business-services/aqi-user-fees/aqi-fee-types/aqi-user-fee-reports">https://www.aphis.usda.gov/aphis/ourfocus/business-services/aqi-user-fees/aqi-fee-types/aqi-user-fee-reports</a>.
For October 1, 2024, October 1, 2025, October 1, 2026, fee rates,
APHIS subtracted the January 1, 2024 rate from the October 1, 2027
rate, and divided by 4. This amount became the per phase increase. The
per phase increase was then added to the previous phase amount until
reaching the October 1, 2027 rate.
[[Page 38628]]
[GRAPHIC] [TIFF OMITTED] TR07MY24.096
[[Page 38629]]
[GRAPHIC] [TIFF OMITTED] TR07MY24.097
BILLING CODE 3410-34-PC
AQI Treatment Monitoring
AQI treatments are performed on some agricultural goods as a
condition of entry, and additional treatments 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. Currently, these treatments are
charged on a per-treatment basis; that is, if two or more consignments
are treated together, only a single fee will be charged, and if a
single consignment is split or must be retreated, a fee will be charged
for each separate treatment conducted. The current fees are set out in
Sec. 354.3(h). APHIS reevaluated assessing AQI treatment monitoring
fees on a per-enclosure basis, and we proposed an hourly rate instead.
We received seven comments about the proposed changes to the
treatment monitoring fee. The commenters generally opposed the proposed
changes.
Commenters were generally opposed to this proposed change. They
raised a number of concerns about moving to an hourly charge, including
the magnitude of the fee increases for certain treatment types,
uncertainty over how the hourly rate would be applied given nonuniform
standards of service and if new efficiencies (e.g., remote monitoring)
could be used. The commenters also stated that the proposed hourly
billing process would present challenges in terms of providing
customers with timely invoices. The commenters further stated that for
certain low-value commodities, the hourly rate would exceed the value
of the import.
After reviewing the comments, we agree with the commenters that
these issues merit further consideration before making changes to the
AQI treatment monitoring fees. We have therefore decided not to proceed
with amending Sec. 354.3(h) at this time. We will address the
restructuring of the AQI treatment monitoring fees in a future
rulemaking. APHIS will keep the per-enclosure fee in place.
[[Page 38630]]
However, we received no comments, and are aware of no evidence,
that treatment monitoring services are not subject to inflationary
forces. Therefore, we are incorporating annual adjustments for
projected inflation \12\ as follows, using the current fee of $237 per
enclosure as the basis:
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\12\ As described in: <a href="https://www.regulations.gov/document/APHIS-2022-0023-0010">https://www.regulations.gov/document/APHIS-2022-0023-0010</a>.
[GRAPHIC] [TIFF OMITTED] TR07MY24.098
Records Retention
To improve monitoring, compliance, and enforcement of this
regulation, we proposed to add a new paragraph (j), which would contain
records retention requirements related to AQI user fees. Proposed
paragraph (j)(1) provided 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 or
written statements. 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 remittance 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 U.S. Government Accountability Office 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.
Commenters stated that the proposed 5-year record retention period
does not align with current airline industry practice and other Federal
agency policies (e.g., FAA requires certain records be retained for 3
years).
This change is being made to harmonize APHIS regulations with CBP's
Consolidated Omnibus Budget Reconciliation Act of 1985 (COBRA) fee
regulations in 19 CFR 24.22(g)(7), which require a 5-year retention
period. As we explained in the proposed rule, CBP audits the AQI
aircraft and international air passenger fee collections on APHIS'
behalf. CBP requires the 5-year-retention period because the statute of
limitations for litigation purposes is 6 years. The 5-year-retention
period gives us the time needed to state what is owed in the event of
non-payment as well as time to bring legal action if necessary to
collect. APHIS will implement these changes in this final rule.
Severability
We proposed to add a new Sec. 354.3(k), ``Severability,'' to
address the possibility that this final rule, or portions of this final
rule, may be challenged in litigation. It is APHIS' intent that the
individual sections of this final 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. We received no comments on
this proposed addition and will implement it in this final rule.
Therefore, for the reasons given in the proposed rule and in this
document, we are adopting the proposed rule as a final rule, with the
changes discussed in this document.
Executive Orders 12866, 13563, 14094 and Regulatory Flexibility Act
This final rule has been determined to be significant under section
3(f)(1) of Executive Order 12866, 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 rulemaking. The
economic analysis provides a cost-benefit analysis, as required by
Executive Orders 12866 and 13563, 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 a final regulatory flexibility analysis
that examines the potential economic effects of this final rule on
small entities, as required by the Regulatory Flexibility Act. The
economic analysis is summarized below. Copies of the full analysis are
available on the <a href="http://Regulations.gov">Regulations.gov</a> website (see footnote 1 in this
document for a link to <a href="http://Regulations.gov">Regulations.gov</a>) or by contacting the person
listed under FOR FURTHER INFORMATION CONTACT.
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 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 commercial 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
[[Page 38631]]
insufficient collections to achieve full cost recovery.
APHIS is making a number of revisions to the regulations that
govern the 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 revisions make adjustments to the cost model that is
used to calculate the fees. Those revisions incorporate inflation into
the user fees, including the fee for treatment monitoring.
This final rule will 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.
APHIS has decided not to restructure the treatment fee in this
final rule. Rather, we are retaining the per-enclosure treatment fee,
while incorporating annual inflation adjustments for this fee.
Additionally, based on comments received, APHIS has created a reduced
user fee rate for commercial vessels operating solely between the
United States and Canada and within either the Great Lakes or a region
along the coastline between Alaska and Oregon, provided that the
vessels meet certain requirements.
This final rule will also update remittance procedures to
facilitate timely submission of fees. Finally, we have made editorial
revisions in order to clarify intent in the regulations.
The Agricultural Quarantine and Inspection (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. APHIS uses an Activity-
Based Cost (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 final rule will 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
from sanitary and phytosanitary risks. 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 by this final rule 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 enable 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
when 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.\13\
The benefits and costs, as well as the annualized transfer payments are
summarized in table A.
---------------------------------------------------------------------------
\13\ 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. <a href="https://www.reginfo.gov/public/jsp/Utilities/circular-a-4_regulatory-impact-analysis-a-primer.pdf">https://www.reginfo.gov/public/jsp/Utilities/circular-a-4_regulatory-impact-analysis-a-primer.pdf</a>.
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BILLING CODE 3410-34-P
[[Page 38632]]
[GRAPHIC] [TIFF OMITTED] TR07MY24.099
The fee schedule will better reflect the costs of AQI services
provided to commercial vessels, commercial trucks, commercial railroad
cars, commercial aircraft, and international air and sea passengers
arriving at U.S. ports (table B).
[[Page 38633]]
[GRAPHIC] [TIFF OMITTED] TR07MY24.100
BILLING CODE 3410-34-C
Air Passengers
The air passenger fee will increase from $3.83 to $4.12 in FY 2028.
The total fee increase of $0.29 will be approximately a 7.6 percent
increase from current fees, but only a 0.05 percent increase in the
average price of an international round-trip airfare.\14\ These changes
in the effective cost for international air travel are extremely small,
and seem unlikely to significantly change consumer purchasing behavior.
Limitations in the amount and nature of data available on such small
fee changes make it difficult for the agency to draw specific
conclusions as to how these small changes in airfare 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.
---------------------------------------------------------------------------
\14\ Damodaran, A., Consumer Airfare Index Report--May 2021. As
travel demand returns and more Americans are vaccinated, what does
it mean for airfare prices? May 18, 2021.
---------------------------------------------------------------------------
Commercial Aircraft
The commercial aircraft fee will increase from $225 to $340.90 per
arrival in FY 2028. This increase of $115.90 will be about a 51.5
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 51.5 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 alone, the 2028
commercial aircraft fee rate under this rulemaking represents
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 $115.90 by 2028, the commercial aircraft user fee is
equivalent to approximately five minutes of operating costs for
aircraft.\15\ Like all AQI user fees, this fee is based solely on the
actual cost of AQI services provided for this mode of conveyance
between FY 2017 and FY 2019, plus forecasted staffing and capital
costs, adjusted for inflation. The fee for this conveyance is not
derived from the financial performance of the industry. Limitations in
the internal industry performance data available to the agency make it
difficult to develop specific conclusions as to how such a fee change
will affect the commercial aircraft industry overall. This information,
however, is used to contextualize the scale of the collections and
illustrate the relative size and impact that the fee might have on the
conveyance as a whole. However, the increase in the AQI commercial
aircraft fee is likely to have a limited impact on aircraft operators.
---------------------------------------------------------------------------
\15\ Federal Aviation Administration. Economic Values for
Investment and Regulatory Decisions--Chapter 4: Aircraft Operating
Costs. March 2021 Update. Retrieved on June 8, 2022, from <a href="https://www.faa.gov/sites/faa.gov/files/regulations_policies/policy_guidance/benefit_cost/econ-value-section-4-op-costs.pdf">https://www.faa.gov/sites/faa.gov/files/regulations_policies/policy_guidance/benefit_cost/econ-value-section-4-op-costs.pdf</a>.
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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 final rule will result in the removal of this exemption.
In light of the fact that small commercial aircraft have not
previously been subject to the fee, APHIS believes that additional time
is warranted to allow operators to come into compliance. Accordingly,
APHIS is delaying the effective date for removal of the exemption for
aircraft with 64 or fewer seats until April 1, 2025.
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
[[Page 38634]]
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 only affects international arrivals of
aircraft with fewer than 65 seats. The commercial aircraft fee is not
derived from the financial performance of the industry. Like all AQI
user fees, this fee is based solely on the cost of providing AQI
services for this mode of conveyance between FY 2017 and FY 2019, plus
forecasted staffing and capital costs, adjusted for inflation. 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. 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. This provides
context for the scale of the collections and illustrates the impact
that the fee might have on the affected entities.
Commercial Vessels
The commercial vessel fee will increase from $825 to $3,139.06 by
FY 2028. Some vessels operating in the Great Lakes or Cascadia areas
will be eligible to pay a reduced commercial vessel fee. A variety of
factors contributed to the commercial vessel fee increase. Among these
were an increase in the cost of AQI services across the pathway, an
expansion of the average ship cargo capacity, and an increase in the
level of effort required to inspect the average vessel. Even with the
commercial vessel fee increasing by up to 280 percent to $3,139.06 by
FY 2028, the 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.\16\ The fee for this conveyance is not derived from the financial
performance of the industry. Like all AQI user fees, this fee is based
solely on the costs for providing AQI services for this mode of
conveyance between FY 2017 and FY 2019, plus forecasted staffing and
capital costs, adjusted for inflation. The change to the commercial
vessel fee seems likely to have a limited impact on the operations of
commercial vessels.
---------------------------------------------------------------------------
\16\ Global 20 port average VSLFO, first half of 2022. Retrieved
08/11/22 from <a href="https://shipandbunker.com">https://shipandbunker.com</a>; Stratiotis, E. Fuel Costs
in Ocean Shipping. January 22, 2018. (<a href="https://www.morethanshipping.com/fuel-costs-ocean-shipping">https://www.morethanshipping.com/fuel-costs-ocean-shipping</a>); $3139.06/$900
(per ton of fuel) = 3.5 tons of fuel. Average fuel consumption is
200 tons/day. 3.5 tons/200 tons = 1.75%
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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 will be affected. APHIS has concluded
that barges from Canada that are currently exempted do pose a
phytosanitary risk and require inspection and payment of the associated
fee. Barges operating in the Great Lakes and Cascadia areas also
require inspection and a payment of a fee. However, those meeting
certain additional conditions will be eligible to pay a reduced fee,
provided their cargo meets the requirements. The reduced fee represents
approximately $.00025 per kilogram imported by barge. These fees are
not derived from the financial performance of the industry. This
information provides context for the scale of the collections and
illustrates the impact that the fee might have on the affected
entities. 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 entities.
Commercial Trucks
The commercial truck fee will increase from $7.29 to $15.55 \17\ by
2028, an increase of $8.26 per truck arrival. In addition, commercial
truck operators have the option to prepay for an unlimited number of
arrivals (per year) by purchasing a transponder, the price of which
will increase from the equivalent of 40 arrivals to 50 arrivals in the
period between October 1, 2024 and October 1, 2025, and thereafter to
60 arrivals.\18\ Between 2013 and 2019 imports into the United States
by truck increased by 397 million kilograms. Even after a 114 percent
increase, the user fee of $15.55 in 2028 for a commercial truck
entering the U.S. will be the equivalent of 0.034 percent of the
average value of goods imported by truck. The user fee in 2028 in
dollars-per-kilogram for truck cargo is approximately $0.0014. In
addition, this user fee is roughly the equivalent of the operating
expenditures of a truck transporting goods about nine miles. The fee
for this conveyance is not derived from the financial performance of
the industry. Limitations in the internal industry performance data
available to the agency make it difficult to develop specific
conclusions as to how such a fee change will affect the commercial
truck industry overall. This information, however, is used to
contextualize the scale of the collections and illustrate the relative
size and impact that the fee might have on the conveyance as a whole.
The impact of this fee change on the operations of commercial trucks
seems likely to be limited. Because of the efficiencies gained by both
the program and users of the AQI services, APHIS will also continue to
provide an incentive to purchase the transponder in the form of a cap.
---------------------------------------------------------------------------
\17\ $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.
\18\ In addition, commercial truck operators have the option to
prepay for an unlimited number of arrivals (per year) by purchasing
a transponder, the price of which will increase from the equivalent
of 40 arrivals to 50 arrivals in the period between October 1, 2024
and October 1, 2025, and thereafter to 60 arrivals.
---------------------------------------------------------------------------
Commercial Railroad Cars
The commercial railroad car fee will 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 railroad car fee is approximately 0.029 percent of the value
of goods being imported on by railroad car. The user fee in 2028 in
dollars-per-kilogram for commercial railroad cars generally is
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 fee changes will affect international
commercial railroad car arrivals overall. Like all AQI user fees, this
fee is based solely on the cost of providing AQI services for this mode
of conveyance between FY 2017 and FY 2019, plus forecasted staffing and
capital costs, adjusted for inflation.
[[Page 38635]]
Industry information is used to contextualize the scale of the
collections and illustrate the relative size and impact that the fee
might have on the conveyance as a whole. The change to this user fee
seems likely to have a limited impact on commercial railroad car
operations.
International Cruise Vessel Passengers
The international cruise vessel passenger fee will 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. APHIS proposed to shift the treatment
monitoring fee to an hourly basis rather than a per-enclosure basis,
and to make adjustments to the remittance practices for the treatment
monitoring fee. Based on the comments received, we have decided not to
make that structural revision to our AQI treatment monitoring fee or
the remittance practices in this final rule. APHIS will keep the per-
enclosure fee in place with annual adjustments for projected inflation,
and the remittance practices will remain unchanged at this time.
APHIS estimates the total annualized cost of the paperwork and
recordkeeping associated with this final rule to be $70,061. Reporting
and recordkeeping requirements associated with this final rule are
discussed under the heading ``Paperwork Reduction Act.''
The Small Business Administration has set small-entity standards
for the transportation sectors. Small entities make up between 92
percent and 99 percent of each of the regulated industries, though the
size data do not distinguish between transportation firms that operate
internationally and those firms that only operate within the United
States. The impacts of this final rule are likely to be limited for all
entities within the affected industries, including small entities.
While most businesses that will be affected by this final rule are
likely to be small, for the reasons discussed further in the Final
Regulatory Flexibility Analysis, we believe that the changes set forth
in this final rule satisfactorily accomplish the regulatory objectives
while minimizing impact on small entities. The provisions of this final
rule are consistent with ensuring a level of AQI services commensurate
with that required to safeguard American agriculture and natural
resources from sanitary and phytosanitary risks.
Executive Order 12988
This final rule has been reviewed under Executive Order 12988,
Civil Justice Reform. This rule: (1) Preempts all State and local laws
and regulations that are inconsistent with this rule; (2) has no
retroactive effect; and (3) does not require administrative proceedings
before parties may file suit in court challenging this rule.
Executive Order 13175
This final 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.
The Puyallup Tribe has requested Tribal consultation regarding this
final rule. APHIS will coordinate with the Office of Tribal Relations
to ensure that meaningful consultation occurs.
Congressional Review Act
Pursuant to subtitle E of the Small Business Regulatory Enforcement
Fairness Act of 1996, also known as the Congressional Review Act (5
U.S.C. 801 et seq.), the Office of Information and Regulatory Affairs
determined that this rule meets the criteria set forth in 5 U.S.C.
804(2).
Paperwork Reduction Act
In accordance with section 3507(d) of the Paperwork Reduction Act
of 1995 (44 U.S.C. 3501 et seq.), some of the reporting and
recordkeeping requirements in the proposed rule and this final rule
have been submitted for approval to the Office of Management and Budget
(OMB) control number 0579-0055, APHIS Credit and User Fee Accounts. The
remaining reporting and recordkeeping requirements that were solely
associated with this final rule were submitted to OMB as a new
information collection and assigned OMB comment-filed number 0579-0489.
After approval, this information collection will be merged into 0579-
0055 in the future.
New information collection requirements created by the regulations
of this final rule include information collection, reporting, and
recordkeeping requirements in the form of paper, electronic
submissions, and information systems. In conjunction with the changes
to provide for cost recovery for services, we have considered each
change and their impact(s) on these burdens. These changes concern
adjusting fee amounts, adjusting caps on certain prepaid fees, removing
exemptions, and providing electronic payments and statement options.
Estimates include additional respondents, responses, and burden
estimates across all activities affected by this rule.
As described above, APHIS received several public comments on the
proposed rule, and the following changes were made to the final rule:
<bullet> We have lowered the fees for commercial vessels,
commercial aircraft, and international air passengers based on our
determination that, while aggregate cost was correct (the numerator for
the fee rate), there were more instances in which AQI services were
provided in these modes (the denominator for the fee rate) than we had
initially calculated.
<bullet> We have established a commercial vessel fee specific to
commercial vessels operating within the Great Lakes or in the region
along the coastline from Alaska to Oregon, provided that certain
conditions are met.
<bullet> We have decided not to revise our regulations governing
the treatment monitoring fee at this time.
<bullet> We have decided not to specify the method by which
airlines and cruise ships must refund passenger user fees assessed for
trips not taken.
With these changes, there are corresponding updates in the related
recordkeeping burdens (Applications for Credit Account and Request for
Services, User Fees for International Air Passengers--Remittance and
Statements, and Fees for Conducting and Monitoring Treatments) between
the proposed and final rules. There was no impact on burden assumptions
between the proposed and final rules due to the first two bulleted
items above. The estimated burden on commercial vessels, commercial
aircraft, and international aircraft customers has not changed. In
addition, the volumes of payers of the new commercial vessel fee
[[Page 38636]]
specific to commercial vessels operating within the Great Lakes or in
the region along the coastline from Alaska to Oregon is a subset of the
original burdens vessel user fee-related burdens included in the
proposed rule, so there is no change in the estimated burden between
the proposed and final rules. Because the revisions to the treatment
user fees in the proposed rule would have created new burdens, the
decision not to revise the regulations governing the treatment
monitoring user fees has lowered the assumed burdens between the
proposed and this the final rule in four ways:
<bullet> The proposed rule assumed there would be 2,844 new
treatments (1,190 heat treatments and 1,654 irradiation treatments)
with an estimated 5 minutes per treatment burden yielding 237
respondent burden hours per year. With the removal of the treatment fee
changes from the final rule, we reduced the burden estimate between the
proposed and final rules accordingly.
<bullet> The proposed rule included a new billing process for
treatment monitoring, and in the proposed rule, we assumed half of the
approximate 50 treatment facilities would want to be billed. 25
facilities x 8.4 minutes per facility (the estimated time for a
facility to complete an application for an account based on timed
trials) = 3.5 respondent burden hours for treatment facilities to
manage being billed. With the removal of the treatment fee changes from
the final rule, we reduced the burden estimate between the proposed and
final rules accordingly.
<bullet> The proposed rule included consequences for late payment
of AQI treatment monitoring user fees and estimated there would be six
treatment facilities incurring an increased time burden of 20 minutes
per facility for an estimated increase in respondent burden of 2 hours.
We removed these 2 hours from our estimated burden with the removal of
the treatment fee changes from the final rule.
<bullet> The proposed rule included a reduction in the need for
facilities to create new business procedures to hold fees in trust
estimating it would save 50 treatment facilities 4.75 hours per year
for a total of 237 reduction in respondent burden hours each year for
individuals and 237 reduction in respondent burden hours each year for
businesses. With the removal of the treatment fee changes from the
final rule, the treatment facilities remain holding fee collections in
trust. For this change between the proposed rule and final rule, we
added 237 respondent burden hours into the total number of respondent
burden hours between the proposed and final rules.
In addition, the decision not to specify the method by which
airlines and cruise ships must refund passenger user fees assessed for
trips not taken has also lowered the assumed burdens between the
proposed rule and the final rule. The proposed rule assumed one third
of the estimated 331 airlines would be required to submit revised
remittance sheets each month. \1/3\ of 331 airlines = 110 airlines. We
estimated those 110 airlines would be required to submit 12 additional
remittances per year taking 3 minutes each at 66 hours of additional
burden per year. With the decision not to specify the passenger user
fee refund methods, we have reduced the overall respondent burden
estimate between the proposed and final rule by this amount.
With the changes to the final rule, the estimated number of
respondents has decreased by 392, the estimated number of responses has
decreased by 9,881, and the estimated burden has decreased by 781
hours.
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. For information pertinent to E-Government Act
compliance related to this final rule, please contact Mr. Joseph Moxey,
APHIS' Paperwork Reduction Act Coordinator, at (301) 851-2533.
Unfunded Mandates Reform Act of 1995
Title II of the Unfunded Mandates Reform Act of 1995 (UMRA), Public
Law 104.4, establishes requirements for Federal agencies to assess the
effects of their regulatory actions on State, local, tribal
governments, and the private sector. Under section 101 of the UMRA,
APHIS generally must prepare a written statement, including a cost-
benefit analysis, for proposed and final rules with ``Federal
mandates'' that may result in expenditures by State, local, or tribal
governments, in the aggregate, or by the private sector, of $100
million or more in any one year. When such a statement is needed for a
rule, section 205 of the UMRA generally requires APHIS to identify and
consider a reasonable number of regulatory alternatives and adopt the
least costly, more cost-effective, or least burdensome alternative that
achieves the objectives of the rule.
This rule contains no Federal mandates (under the regulatory
provisions of Title II of the UMRA) that may result in expenditures by
State, local, and tribal governments, in the aggregate, or by the
private sector, of $100 million or more in any one year. Thus, this
rule is not subject to the requirements of sections 202 and 205 of the
UMRA.
Executive Order 13132
APHIS has reviewed this rule in accordance with Executive Order
13132 regarding Federalism and has determined that it does not have
``federalism implications.'' The rule does not ``have substantial
direct effects on the States, on the relationship between the national
government and the States, or on the distribution of power and
responsibilities among the various levels of government.''
List of Subjects in 7 CFR Part 354
Exports, Government employees, Plant diseases and pests,
Quarantine, Reporting and recordkeeping requirements, Travel and
transportation expenses.
As discussed in the preamble, APHIS is amending 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 or
as defined by 19 CFR 101.1, in the customs territory of the United
States or at any place serviced by any such port of entry.
Calendar year. The period from January 1 to December 31, inclusive,
of any particular year.
Cascadia. British Columbia and those ports of entry into the United
States lying south of 59[deg]26'59.316'' N, north of 43[deg]23'34.152''
N, west of 122[deg]20'31.2'' W, and east of 135[deg]20'2.4'' W.''
[[Page 38637]]
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.).
Great Lakes. The Great Lakes of North America and the waters of the
St. Lawrence River west of a rhumb line drawn from Cap de Rosiers to
West Point, Anticosti Island, and west of a line along 63[deg] W.
longitude from Anticosti Island to the north shore of the St. Lawrence
River.
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.
(b) Fee for inspection of commercial vessels of 100 net tons or
more. (1) Except as provided in paragraphs (b)(2) and (3) 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.
Table 1 to Paragraph (b)(1)--Fee for Inspection of Commercial Vessels of
100 Net Tons or More
------------------------------------------------------------------------
Effective date Amount
------------------------------------------------------------------------
October 1, 2024............................................ $2,903.73
October 1, 2025............................................ 2,981.17
October 1, 2026............................................ 3,059.61
October 1, 2027............................................ 3,139.06
------------------------------------------------------------------------
(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.
(3) If not otherwise exempt from paying the fee, a vessel traveling
solely between the United States and Canada and within the Great Lakes
or Cascadia may pay the AQI user fee for each arrival as the fee is
shown in table 2, provided that the vessel:
(i) Is not carrying cargo originating from countries other than the
United States or Canada.
(ii) Is not carrying plants or plant products.
(iii) Is not carrying animals or animal products.
(iv) Is not carrying soil or quarry products from areas in Canada
listed in Sec. 319.77-3 of this chapter as being infested with gypsy
moth.
(v) Is not carrying wood packaging material as defined under Sec.
319.40-1 of this chapter.
Table 2 to Paragraph (b)(3)--Fee for Inspection of Commercial Vessels
Traveling Solely Between the United States and Canada and Within the
Great Lakes or Cascadia, and Not Otherwise Exempt
------------------------------------------------------------------------
Effective date Amount
------------------------------------------------------------------------
October 1, 2024...................................... $837.51
October 1, 2025...................................... 850.03
October 1, 2026...................................... 862.54
October 1, 2027...................................... 875.06
------------------------------------------------------------------------
(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 3).
[[Page 38638]]
Table 3 to Paragraph (c)(1)--Fee for Inspection of Commercial Trucks
------------------------------------------------------------------------
Amount (per Amount (prepaid
Effective date arrival) annual fees)
------------------------------------------------------------------------
October 1, 2024................... $12.40 $622.00
October 1, 2025................... 13.45 808.20
October 1, 2026................... 14.50 870.60
October 1, 2027................... 15.55 935.40
------------------------------------------------------------------------
Note: The per arrival fee has been rounded down to the next $0.05 (five-
cent) increment to facilitate border operations. Additionally, the
prepaid fees are set at 50 times the unrounded fee rate of $12.44, and
60 times the unrounded fee rates of $13.47, $14.51, and $15.59,
respectively.
(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 50 times the
unrounded per arrival fee for the period between October 1, 2024 and
September 30, 2025, and 60 times the unrounded per arrival fee
thereafter. 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 4. 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
(d), 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 times the AQI user fee for each
arrival.
Table 4 to Paragraph (d)(1)--Fee for Inspection of Commercial Railroad Cars
----------------------------------------------------------------------------------------------------------------
Amount (per
Effective date arrival) Amount (prepaid)
----------------------------------------------------------------------------------------------------------------
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
(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 procedures. The Association of American Railroads
(AAR), the National Railroad Passenger Corporation (AMTRAK), and
railroad companies acting individually shall file monthly written
statement with USDA, APHIS, FMD, within 90 days after the end of each
calendar month. Each written statement 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 written statement with
their mailed payment as directed in this paragraph (d)(4). For all
other payment types, the companies must email the written
[[Page 38639]]
statement to <a href="/cdn-cgi/l/email-protection#84c5c6d7cce1e8f4e8edeae1c4f1f7e0e5aae3ebf2"><span class="__cf_email__" data-cfemail="febfbcadb69b928e9297909bbe8b8d9a9fd0999188">[email protected]</span></a>. Individual railroad companies must
submit a written statement for periods with no fees collected. Detailed
remittance instructions are located at <a href="https://www.aphis.usda.gov/aphis/ourfocus/business-services/aqi-user-fees">https://www.aphis.usda.gov/aphis/ourfocus/business-services/aqi-user-fees</a>. Questions and
correspondence may be directed to <a href="/cdn-cgi/l/email-protection#b0f1f2e3f8d5dcc0dcd9ded5f0c5c3d4d19ed7dfc6"><span class="__cf_email__" data-cfemail="0e4f4c5d466b627e6267606b4e7b7d6a6f20696178">[email protected]</span></a> 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 90 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) Written statements as described in paragraph (d)(4) of this
section, are required to accompany all payments. Detailed payment
instructions are located at <a href="https://www.aphis.usda.gov/aphis/ourfocus/business-services/aqi-user-fees">https://www.aphis.usda.gov/aphis/ourfocus/business-services/aqi-user-fees</a>. Questions and correspondence may be
sent to <a href="/cdn-cgi/l/email-protection#38797a6b705d54485451565d784d4b5c59165f574e"><span class="__cf_email__" data-cfemail="753437263d101905191c1b1035000611145b121a03">[email protected]</span></a>, 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 written statements, 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
<a href="/cdn-cgi/l/email-protection#e0a1a2b3a8858c908c898e85a095938481ce878f96"><span class="__cf_email__" data-cfemail="1c5d5e4f5479706c707572795c696f787d327b736a">[email protected]</span></a>. 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 5:
Table 5 to Paragraph (e)(1)--Fee for Inspection of Commercial Aircraft
------------------------------------------------------------------------
Effective date Amount
------------------------------------------------------------------------
October 1, 2024............................................ $281.39
October 1, 2025............................................ 300.78
October 1, 2026............................................ 320.61
October 1, 2027............................................ 340.90
------------------------------------------------------------------------
(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) [Reserved]
(v) Any aircraft moving from the U.S. Virgin Islands to Puerto
Rico; and
(vi) 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 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 <a href="https://www.aphis.usda.gov/mrpbs/userfees/aqi-payment-types.pdf">https://www.aphis.usda.gov/mrpbs/userfees/aqi-payment-types.pdf</a> or for further
information relative to electronic remittance, or for further
information relative to electronic remittance, contact
<a href="/cdn-cgi/l/email-protection#bafbf8e9f2dfd6cad6d3d4dffacfc9dedb94ddd5cc"><span class="__cf_email__" data-cfemail="135251405b767f637f7a7d7653666077723d747c65">[email protected]</span></a>. 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 <a href="https://www.aphis.usda.gov/mrpbs/userfees/aqi-payment-types.pdf">https://www.aphis.usda.gov/mrpbs/userfees/aqi-payment-types.pdf</a>. Questions and correspondence may be
directed to <a href="/cdn-cgi/l/email-protection#034241504b666f736f6a6d6643767067622d646c75"><span class="__cf_email__" data-cfemail="e9a8abbaa18c85998580878ca99c9a8d88c78e869f">[email protected]</span></a> or to (612) 336-3400 (fax) or (877)
777-2128 (phone). For payment information, refer to our detailed
payment instructions at <a href="https://www.aphis.usda.gov/aphis/ourfocus/business-services/aqi-user-fees">https://www.aphis.usda.gov/aphis/ourfocus/business-services/aqi-user-fees</a>. 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 written statement
each month stating the fees that are due for the month. Carriers or
their agents must include a hard copy of the written statement with any
mailed payment. For all other payment types, including for months with
no fees collected, the carriers must email the written statement to
<a href="/cdn-cgi/l/email-protection#89c8cbdac1ece5f9e5e0e7ecc9fcfaede8a7eee6ff"><span class="__cf_email__" data-cfemail="c180839289a4adb1ada8afa481b4b2a5a0efa6aeb7">[email protected]</span></a>.
(iii) The written statement 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 written statement 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 <a href="https://www.aphis.usda.gov/aphis/ourfocus/business-services/aqi-user-fees">https://www.aphis.usda.gov/aphis/ourfocus/business-services/aqi-user-fees</a>.
(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 this paragraph (e) 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
[[Page 38640]]
calculations, payments, and written statements 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 <a href="https://www.aphis.usda.gov/aphis/ourfocus/planthealth/ppq-program-overview/ppq-cbp-aqi-user-fees-contacts">https://www.aphis.usda.gov/aphis/ourfocus/planthealth/ppq-program-overview/ppq-cbp-aqi-user-fees-contacts</a> 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 p
[…truncated; see source link]Indexed from Federal Register on May 7, 2024.
This is legal information, not legal advice. Laws vary by jurisdiction and change frequently. Always verify current law with official sources and consult a licensed attorney in your jurisdiction for advice on your specific situation.