Daily Rules, Proposed Rules, and Notices of the Federal Government
For information concerning user fee rate development, contact Mrs. Kris Caraher, User Fees Section Head, Financial Management Division, MRPBS, APHIS, 4700 River Road Unit 55, Riverdale, MD 20737-1232, (301) 734-0882.
The regulations at 9 CFR part 130 (referred to below as the regulations) list user fees for import- and export-related services provided by the Animal and Plant Health Inspection Service (APHIS) for animals, animal products, birds, germ plasm, organisms, and vectors. We are amending the user fees for these import- and export-related services to reflect the increased cost of providing these services.
These user fees are authorized by section 2509(c)(1) of the Food, Agriculture, Conservation, and Trade Act of 1990, as amended (21 U.S.C. 136a). APHIS is authorized to establish and collect fees that will cover the cost of providing import- and export-related services for animals, animal products, birds, germ plasm, organisms, and vectors.
Since fiscal year (FY) 1992, APHIS has received no directly appropriated funds to provide import- and export-related services for animals, animal products, birds, germ plasm, organisms, and vectors. Our ability to provide these services depends on user fees. We change our user fees through the standard rulemaking process of publishing the proposed changes for public comment in the
For our user fees to cover our costs so that we can continue to provide services and to inform our customers of user fees in time for advance planning, we proposed to set user fees for our services in advance for fiscal years 2009 to 2013. The proposed rule was published in the
We solicited comments concerning our proposal for 60 days ending August 4, 2008. We received seven comments by that date. The comments were from private citizens, a council of ornithological organizations, and livestock importers and exporters. The commenters raised several issues associated with the proposed rule. These issues are discussed below.
One commenter stated generally that the proposed fee increases were too low.
We calculate our user fees to cover the full cost of providing the services for which we charge the fee. We are confident that the user fees we proposed will be sufficient to recover the cost of providing these services. Furthermore, we intend to review these fees on at least an annual basis and will publish any necessary adjustments in the
Several commenters expressed concern that increasing the fees would hurt livestock import/export businesses economically.
APHIS needs to increase the fees in order to recover the costs of providing import/export related services. In the economic analysis for the proposed rule, we examined the potential economic effects of these user fee revisions on businesses and determined, based on the information available, that the effects of the changes should be small for both small and large entities. We have reviewed those conclusions and are confident that they are still accurate.
One commenter stated that the reserve account was designed to issue credit to commercial importers who deal in large volumes of animals or animal products. The commenter stated that all permits should be paid for at the time of application.
As we explained in the proposed rule, the reserve account consists of budgetary resources set aside to provide for future needs and unforeseen circumstances. The types of costs that are considered when developing the reserve include commitments, employee benefits, contingencies, business cycle ups and downs, capital equipment replacement, and provision for future legislative or executive actions. The reserve is not designed to provide credit to importers.
We specifically requested comments about whether import compliance assistance fees would be better charged as hourly fees rather than as flat rate fees. One commenter stated that while charging hourly fees would improve flexibility and make it easier to recover costs, it would also add a burden to agency staff to monitor their time so that the hourly rate could be charged accurately. The commenter stated that correctly calculating time for a task in
Another commenter asked that we add a definition for import compliance assistance to the regulations to clarify what services were covered by the fees.
We agree with this commenter and have added a definition for
One commenter requested that we combine the import and transport permits for untreated scientific material, and requested that we increase the duration of permits for the import and transport of untreated scientific materials from 1 to 3 years. The commenter stated that these actions would reduce agency workload and therefore reduce costs.
Import permits are issued to foreign shippers when scientific materials are brought into the United States. Transport permits are issued to domestic shippers moving these materials within the United States. The processing required for these permits is similar, which is why they are covered under the same user fee, but the requirements and restrictions for each are different. Specifically, more mitigations are required for import permits because of the greater risks involved in bringing untreated scientific materials into the United States. Combining the two permit types would result in unnecessary restrictions being placed on the domestic movement of these materials. We did not propose to change the structure or duration of any permits in the proposed rule and are making no changes in response to this comment.
One commenter stated that fees charged by the National Veterinary Services Laboratories (NVSL) for testing livestock for disease before export should be either eliminated entirely or reduced to the same amount as fees charged at State laboratories.
We did not propose to revise the NVSL user fees in the proposed rule. The current fees for NVSL services were established in a final rule published in the
We are also making a minor change to the table in § 130.11 by adding a footnote to the entry for inspection of biosecurity level three facilities to indicate where the fees for inspection of biosecurity level two facilities are listed. We are adding this footnote for the sake of clarity.
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.
This final rule has been reviewed under Executive Order 12866. The rule has been determined to be not significant for the purposes of Executive Order 12866 and, therefore, has not been reviewed by the Office of Management and Budget.
In accordance with 5 U.S.C. 604, we have performed a final regulatory flexibility analysis, which is summarized below, regarding the economic effects of this rule on small entities. Copies of the full analysis are available on the Regulations.gov Web site (see footnote 1 in this document for a link to Regulations.gov) or by contacting the person listed under
The Secretary of Agriculture is authorized by the Food, Agriculture, Conservation and Trade Act of 1990, as amended, to prescribe and collect fees to recover the costs of providing import and export related services. APHIS is amending the user fees for providing veterinary services for import and export activities (9 CFR part 130). These fees are being updated to take into account the routine increases in the cost of doing business, such as inflation, replacing equipment, maintaining databases, etc., that have occurred since the last update and those that are expected to occur over the next 5 years. In addition, the fees are being adjusted to incorporate expenditures to maintain the current level of operations, improve service, and keep up with expanding demand for services. These expenditures include things from roof replacement to the modernization of facilities.
User fees recover the cost of operating a public system by charging those members of the public who use the system, rather than the public as a whole, for its operation. User fees result in movement toward a more socially optimal level of demand where users fully incorporate the cost of APHIS services into their private costs. In addition, by setting the fees for these veterinary services to fully recover the associated costs, we can assure that the program operates at a level considered sufficient to meet demand for these services. If APHIS continued to collect user fees at the current rates over the next 5 years, total collections would be approximately $113 million, nearly $54 million less than the projected cost of administering the program from FY 2009 through FY 2013. This demonstrates the magnitude of the shortfall in cost recovery that would occur absent the changes.
The user fee revisions included in this final rule could affect some importers and exporters of live animals, animal products, and animal byproducts. The Small Business Administration (SBA) has established guidelines for determining which businesses are to be considered small. Importers and exporters of live animals, animal products, and animal byproducts are identified within the broader wholesaling trade sector of the U.S. economy. A firm primarily engaged in wholesaling animals or animal products is considered small if it employs not more than 100 persons. These entities either sell goods on their own account (import/export merchants) or arrange for the sale of goods owned by others (import/export agents and brokers). The North American Industry Classification System (NAICS) code 424430 covers dairy products (except dried or canned) merchant wholesalers. According to the 2002 Economic Census (the most recent census available), more than 98 percent of these wholesalers would be considered small by SBA standards.
In the proposed rule, we invited public comment on the expected economic effects of the proposed action on small entities, particularly costs estimates of compliance costs and impacts on revenue. Several commenters expressed concern that increasing the fees would hurt livestock import/export businesses economically but did not present any information which would support this contention.
One alternative to this rule was to leave the regulations unchanged. In this case, the fees would remain unchanged. The current fees do not take into account the routine increases in the cost of doing business, such as inflation, replacing equipment, maintaining databases, etc., that have occurred since the last update. In addition, the fees are being adjusted to incorporate expenditures to maintain the current level of operations, improve service, and keep up with increasing demand for services. If APHIS were to continue to collect user fees at the current rates in fiscal years 2009-2013, total collections would be nearly $54 million short of projected program costs over that period. Therefore, this alternative was rejected.
Another alternative to this rule was to charge hourly rate fees for all veterinary services. However, flat rate user fees are appropriate when the cost of providing a service is unchanging from user to user and the service is requested in relatively large numbers. It would be unnecessarily complex and costly to track hourly charges for services where a flat rate could be consistently used. Therefore, this alternative was rejected.
Another alternative to this rule was to change all hourly fees to flat rate fees. However, charging a flat rate is not appropriate in all situations. We charge flat rate fees in cases where a service takes a consistent amount of time to perform, but for some services there can be a disparity in the time it takes to perform a given service for one user versus another. For example, hourly rates are charged for the inspection of biosecurity level 2 (BSL-2) laboratories, including travel. The inspection covers a specific checklist and is therefore similar from facility to facility. However, the amount of travel time required of the inspector varies widely, depending on the location of the facility. It would be unfair to charge both users the same flat fee for those inspections. Therefore, this alternative was rejected.
This proposed rule contains no new information collection or recordkeeping requirements. (
This program/activity is listed in the Catalog of Federal Domestic Assistance under No. 10.025 and is subject to Executive Order 12372, which requires intergovernmental consultation with State and local officials. (
This final rule contains no information collection or recordkeeping requirements under the Paperwork Reduction Act of 1995 (44 U.S.C. 3501
Animals, Birds, Diagnostic reagents, Exports, Imports, Poultry and poultry products, Quarantine, Reporting and recordkeeping requirements, Tests.
5 U.S.C. 5542; 7 U.S.C. 1622 and 8301-8317; 21 U.S.C. 136 and 136a; 31 U.S.C. 3701, 3716, 3717, 3719, and 3720A; 7 CFR 2.22, 2.80, and 371.4.
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Done in Washington, DC, this 24th day of March 2009.