User FeesCommercial Aircraft and Vessels; Phytosanitary Certificates

DEPARTMENT OF AGRICULTURE

7 CFR Part 354

[Docket No. 94-074-1]

RIN 0579-AA68

User Fees--Commercial Aircraft and Vessels; Phytosanitary

Certificates

AGENCY: Animal and Plant Health Inspection Service, USDA.

ACTION: Proposed rule.

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SUMMARY: We are proposing to amend the user fee regulations by lowering

the fees charged for certain agricultural quarantine and inspection

services we provide in connection with the arrival of an international

commercial aircraft at a port in the customs territory of the United

States. We are also proposing to amend the user fee regulations by

raising the fees charged for export certification of plants and plant

products. We have determined, based on a review of our user fees, that

the fees must be adjusted to reflect the actual cost of providing these

services. In addition, we are proposing to amend the user fee

regulations to clarify the exemption for certain vessels which sail

only between the United States and Canada.

DATES: Consideration will be given only to comments received on or

before June 23, 1995.

ADDRESSES: Please send an original and three copies of your comments to

Docket No. 94-074-1, Regulatory Analysis and Development, PPD, APHIS,

suite 3CO3, 4700 River Road Unit 118, Riverdale, MD 20737-1238. Please

state that your comments refer to Docket No. 94-074-1. Comments

received may be inspected at USDA, room 1141, South Building, 14th

Street and Independence Avenue SW., Washington, DC, between 8 a.m. and

4:30 p.m., Monday through Friday, except holidays.

FOR FURTHER INFORMATION CONTACT: For information concerning program

operations, contact Mr. Don Thompson, Staff Officer, Port Operations,

PPQ, APHIS, 4700 River Road Unit 136, Riverdale, MD 20737-1236, (301)

734-8295.

For information concerning rate development, contact Ms. Donna

Ford, PPQ User Fees Section Head, FSSB, BAD, APHIS, 4700 River Road

Unit 54, Riverdale, MD 20737-1232, (301) 734-5901.

SUPPLEMENTARY INFORMATION:

Background

The regulations in 7 CFR 354.3 (referred to below as the

``regulations'') contain provisions for the collection of user fees for

certain international services provided by the Animal and Plant Health

Inspection Service (APHIS). In this docket we are proposing to amend 2

user fees: (1) The user fee for servicing international commercial

aircraft arriving at ports in the customs territory of the United

States; and (2) the user fee for certifying plants and plant products

for export. We are also proposing to clarify the exemption from user

fees which applies to certain vessels which sail only between the

United States and Canada. Each amendment is discussed separately below.

International Commercial Aircraft

One service our user fees cover is the cost of agricultural

quarantine and inspection (AQI) services provided by APHIS in

connection with the arrival of an international commercial aircraft at

a port in the customs territory of the United States. (The customs

territory of the United States is defined in the regulations as the 50

States, the District of Columbia, and Puerto Rico.)

The current user fee for international commercial aircraft became

effective on January 1, 1993, following the publication of an interim

rule in the Federal Register on December 31, 1992 (Docket No. 92-148-1,

57 FR 62468-62473). At that time the fee was set at $61.00. This fee

was later affirmed in a document published in the Federal Register on

November 9, 1993 (Docket No. 92-148-2, 58 FR 59354-59356).

As we have stated in previous proposed and final regulations, we

intend to monitor our user fees and review them at least annually to

determine whether the fees should be adjusted. After reviewing the fees

that were collected in FY 1993 and FY 1994 and calculating our cost and

revenue projections for FY 1995, we have determined that the fee for

international commercial aircraft needs to be lowered from $61.00 to

$53.00 for each arrival. This is necessary to avoid collecting more

revenue than needed to cover the costs of the services we provide.

Calculation of User Fees for Commercial Aircraft

To calculate the adjusted user fees for commercial aircraft, we

determined the total projected cost of providing AQI services in FY

1995 for international commercial aircraft. The cost of providing these

services in FY 1993 and FY 1994 served as a basis for calculating our

projected FY 1995 costs. It is important to note that each year in the

budget process, Congress limits or specifies how much APHIS can

withdraw from the AQI User Fee Account. For FY 1993, APHIS was

authorized to spend $83.3 million. For FY 1994 we were authorized to

spend $91.6 million, plus $6.9 million to cover additional AQI program

needs.

In FY 1992, APHIS established accounting procedures to segregate

AQI user fee program costs. We published a detailed description of

these procedures in the Federal Register on December 31, 1992 (57 FR

62469-62471), as part of a document (Docket No. 92-148-1) amending some

of our user fees.

As part of our accounting procedures, we established distinct

accounting codes to record costs that can be directly related to each

inspection activity. At the State level and below, the following costs

are direct-charged to the AQI User Fee Account: Salaries and benefits

for inspectors and canine officers, supervisors (such as officers-in-

charge) and clerical staff, user-fee-specific equipment, contracts, and

large supply items such as x-ray equipment or uniforms.

Other costs that cannot be directly charged to individual accounts

are charged to ``distributable'' accounts established at the State

level. The following types of costs are charged to distributable

accounts: utilities, rent, telephone, vehicles, office supplies, etc.

The costs in these distributable accounts are prorated (or distributed)

among all the activities that benefit from the expense, based on the

ratio of the costs that are directly charged to each activity divided

by the total costs directly charged to each account at the field level.

For example, if a State office performs work on domestic programs, AQI

user fee programs, and AQI appropriated programs, the costs are

distributed among each program, based on the percentage of the direct

costs for that activity at the field level that is charged to that

activity. Costs incurred at the regional, headquarters program staff,

and agency-level support offices are also prorated to the separate AQI

[[Page 27438]] activities based on the percentage of the costs that

were directly charged to each activity at the field level, as discussed

above.

Under these accounting procedures, we calculated the total cost of

providing AQI services in FY 1993 and FY 1994 by determining the

amounts in each direct-charge account, then adding the pro rata share

of the distributable accounts maintained at the State, regional,

headquarters, and agency levels. In FY 1993, it cost APHIS

approximately $13.9 million to provide services to commercial aircraft;

in FY 1994 the cost was approximately $17.5 million.

We projected that in FY 1995, it will cost APHIS a total of $18.9

million to provide inspection services for international commercial

aircraft. Of this total, $15.7 million is for program delivery costs,

which are costs incurred at the State level and below. The total also

includes $1.7 million for a pro rata share of the program direction and

support costs, as explained above, which include items at the regional

and headquarters program staff levels. Finally, the total includes $1.5

million for a pro rata share of agency-level support costs, as

discussed above, which include activities that support the entire

agency, such as recruitment and development, legislative and public

affairs, regulations development, regulatory enforcement, budget and

accounting services, and payroll and purchasing services. The

exceptions are costs for billing and collection services, legal

counsel, and rate development services. These costs are directly

related to user fee activities, so these costs are directly added to

the user fee activities they support and are not included in the

proration of agency-level costs.

For the commercial aircraft user fee, we also have the authority to

include an amount that would provide for a reasonable reserve balance

in the AQI User Fee Account (referred to below as ``the Account''). We

defined a ``reasonable reserve balance'' as equal to 3 months' normal

operating expenses. We have now accumulated a reserve balance equal to

this amount in the Account for international aircraft. Therefore, the

reserve component of this user fee would be eliminated in our proposed

fee adjustments.

Volumes

We estimated the annual number of international commercial aircraft

that would be subject to inspection. The estimates, which were based on

our FY 1993 and FY 1994 collection history, were then used as a basis

for projecting activity volumes for FY 1995.

A total of 357,442 commercial aircraft were subject to inspection

during FY 1993. During FY 1993, we revised the aircraft clearance fee

from $76.75 per arrival to $61.00 per arrival. The decrease became

effective for all aircraft arriving in the United States on or after

January 1, 1993. To arrive at the FY 1993 volume for aircraft, we

divided the first quarter collections (October 1 through December 31,

1992) of $6,187,047.75 by $76.75, the per arrival fee, for a total

first quarter volume of 80,613. We divided the 3 remaining quarter

collections of $16,886,569.00 by $61.00, the revised per arrival fee,

for a volume total of 276,829 for the remainder of the fiscal year.

This produced a total FY 1993 volume of 357,442. Our FY 1994, volume

projection is 350,293. To arrive at the FY 1994 volume for aircraft, we

divided our projected FY 1994 collections of $21,367,873.00 by $61.00,

the per arrival fee, for a volume total of 350,293. While the actual

volume went down in FY 1994, we do not expect that to happen again in

FY 1995. In fact, in FY 1995 we are projecting a modest volume increase

of 2 percent. Therefore, we applied a 2 percent increase to the FY 1994

volume of 350,293 to arrive at a projected FY 1995 commercial aircraft

volume of 357,299.

Fee Adjustments and Rounding of Fees

In calculating the adjusted user fees, our final step was to divide

the sum of the cost of providing service by the projected number of

international commercial aircraft subject to inspection, thereby

arriving at a ``raw'' fee.

For the commercial aircraft user fee, the raw fee was $52.99;

rounding this fee up to the nearest quarter yields a fee of $53.00.

Rounding up ensures that the fee would be easy to calculate and

collect. The lower fee of $53.00 would be sufficient to recover the

full cost of providing aircraft inspection services, without collecting

more revenue than needed to cover the costs of the services provided.

Commercial Vessels

Another AQI service we offer is inspection of commercial vessels of

100 net tons or more. Certain categories of commercial vessels are

exempt from paying APHIS user fees under the current regulations. Among

those is ``any vessel which sails only between United States and

Canadian ports'' (see current Sec. 354.3(b)(2)(vi)).

The United States Customs Service (Customs), U.S. Department of the

Treasury, collects APHIS user fees and remits them to us. Customs has

requested that we amend our regulations to make it easier for them to

determine which vessels are exempt from our fees.

Under our regulations, certain vessels are exempt from paying APHIS

user fees. Customs must determine, when reviewing the paperwork

presented for each arriving vessels, which vessels are exempt. In order

to ensure that they have the necessary information to make this

determination, Customs has requested that we amend Sec. 354.3(b)(2)(vi)

of our regulations to require Masters of vessels in the United States-

Canada trade arriving from Canada to certify, in the ``Remarks'' block

of the General Declaration, Customs Form 1301, that the vessel has

sailed solely between the United States and Canada for the previous 2

years.

The proposed certification would be placed in a document which

vessels arriving in the United States are required, under Customs

regulations in 19 CFR 4.7, to present to the Customs official on duty

at the port of arrival. In addition to helping Customs to more

accurately and efficiently collect APHIS user fees, the proposed

requirement would also clarify that vessels which ``sail only between

United States and Canada ports'' are vessels which have done so for at

least the previous 2 years. The 2-year restriction is necessary to

ensure that pests and regulated articles brought on board the vessel at

ports outside Canada or the United States no longer pose a pest or

disease risk. This requirement is identical to requirements in our

regulations concerning the handling and disposal of garbage from places

outside the United States (see 7 CFR 330.400 and 9 CFR 95.4).

Phytosanitary Certificates

In addition to AQI services, our user fees also cover the issuance

of phytosanitary certificates for the export of plants and plant

products. Phytosanitary certificates are issued in accordance with 7

U.S.C. 147a and regulations in 7 CFR part 353. These documents certify

agricultural products as being free from plant pests, according to the

phytosanitary requirements of the foreign countries to which the plants

or plant products may be exported, or to the freedom from exposure to

plant pests while in transit through the United States. These

certificates must be issued in accordance with 7 CFR part 353 to be

accepted in international commerce.

The user fees for some phytosanitary certificates issued by APHIS

became effective on March 17, 1993, upon publication of a final rule in

the Federal Register on March 17, 1993 (Docket 92- [[Page 27439]] 088-

2, 58 FR 14305-14307). The user fees for other phytosanitary

certificates issued by APHIS became effective on February 9, 1992,

following the publication of a final rule in the Federal Register on

January 9, 1992 (Docket No. 91-135, 57 FR 755-773). The fees were set

at: (1) $30.00 for a certificate for a commercial shipment; (2) $19.00

for a certificate for certain low-value commercial shipments; (3)

$19.00 for a certificate for a non-commercial shipment; (4) $30.00 for

a certificate for reexport of a commercial shipment; (5) $19.00 for a

certificate for reexport of certain low value commercial shipments; (6)

$30.00 for a processed product certificate for a commercial shipment;

(7) $6.00 for reissuing any certificate or certificate for reexport

(see current 7 CFR 354.3(g)(5)). In addition, there is a $6.00 user fee

for processing unissued phytosanitary certificates of all types (see 7

CFR 354.3(h)).

After reviewing the fees for phytosanitary certificates that were

collected in FY 1993 and FY 1994 and calculating our cost and revenue

projections for FY 1995, we have determined that, for the reasons

discussed below, the fees need to be adjusted in order to recover the

full cost of providing services. Therefore, we are proposing to raise

our user fees for phytosanitary certificates as follows: (1) to $50.00

for a certificate for a commercial shipment; (2) to $23.00 for a

certificate for certain low-value commercial shipments; (3) to $23.00

for a certificate for a non-commercial shipment; (4) to $50.00 for a

certificate for reexport of a commercial shipment; (5) to $23.00 for a

certificate for reexport of certain low value commercial shipments; (6)

to $50.00 for a processed product certificate for a commercial

shipment; (7) to $7.00 for reissuing any certificate or certificate for

reexport. In addition, we are proposing to raise the user fee for

processing unissued phytosanitary certificates of all types to $7.00.

Calculation of User Fees for Phytosanitary Certificates

To calculate the adjusted user fees for phytosanitary certificates,

we determined the total projected cost of providing phytosanitary

certificate services in FY 1995. The cost of providing these services

in FY 1993 and FY 1994 served as a basis for calculating our projected

FY 1995 costs.

In FY 1992, APHIS established accounting procedures to segregate

phytosanitary certificate-related costs. We established distinct

accounting codes to record costs that can be directly related to this

activity. At the State level and below, the following costs are charged

directly to the phytosanitary certificate user fee account: salaries

and benefits for inspectors, supervisors (such as officers-in-charge)

and clerical staff, user-fee-specific equipment, contracts, and large

supply items such as uniforms.

Other costs that cannot be directly charged to individual accounts

are charged to ``distributable'' accounts established at the State

level. The following types of costs are charged to distributable

accounts: utilities, rent, telephone, vehicles, office supplies, etc.

The costs in these distributable accounts are prorated (or distributed)

among all the activities that benefit from the expense, based on the

ratio of the costs that are directly charged to each activity divided

by the total costs directly charged to each account at the field level.

For example, if a State office performs work on domestic programs and

phytosanitary certificate programs, the costs are distributed among

each program, based on the percentage of the direct costs for that

activity at the field level that is charged to that activity. Costs

incurred at the regional, headquarters program staff, and agency-level

support offices are also prorated to the separate phytosanitary

certificate-related activities, based on the percentage of the costs

that were directly charged to each activity at the field level, as

discussed above.

Under these accounting procedures, we calculated the total cost of

providing phytosanitary certificate services in FY 1993 and FY 1994 by

determining the amounts in each direct-charge account, then adding the

pro rata share of the distributable accounts maintained at the State,

regional, headquarters, and agency levels. In FY 1993, it cost APHIS

approximately $3.5 million to issue phytosanitary certificates, and it

cost APHIS approximately $4.1 million in FY 1994. We project our FY

1995 costs to be $4.6 million. Of this total, $3.83 million is for

program delivery costs, which are costs incurred at the State level and

below. The total also includes $389,000 for a pro rata share of the

program direction and support costs, as explained above, which include

items at the regional and headquarters program staff levels. Finally,

the total includes $384,000 for a pro rata share of agency-level

support costs, as discussed above, which include activities that

support the entire agency, such as recruitment and development,

legislative and public affairs, regulations development, regulatory

enforcement, budget and accounting services, and payroll and purchasing

services. The exceptions are costs for billing and collection services,

legal counsel, and rate development services. These costs are directly

related to user fee activities, so these costs are directly added to

the user fee activities they support and are not included in the

proration of agency-level costs.

To calculate the adjusted user fees for phytosanitary certificates,

we determined the total projected cost of issuing phytosanitary

certificates in FY 1995, based on our costs to provide these services

in FY 1993 and FY 1994.

Under our accounting procedures, we calculated the total cost of

issuing phytosanitary certificates in FY 1993 by determining the amount

in each direct-charge account, then adding the prorata share of the

distributable accounts maintained at the State, regional, headquarters,

and agency levels.

We then used a weighted average method to develop the rate for each

type of phytosanitary certificate. The average time to complete each

type of certificate was calculated. Each type of phytosanitary

certificate fee was assigned a weighted value. This was done by

comparing the time value for each certificate type relative to the time

value for commercial certificates. The time value of commercial

certificates was 2.45. This was weighted 1.00 (2.45/2.45). Non-

commercial certificates were given a value of 0.46 (1.13/2.45), and

reissued certificates were given a value of 0.14 (0.35/2.45).

We then applied the weighted values to our volume estimates for FY

1995 to determine the weighted transaction amounts. The total number of

transactions for each category was then added and divided into the

total program cost. In this way we arrived at an average per inspection

cost of $49.84. We multiplied the average per inspection cost by the

activity weight. This produced the weighted average cost for each type

of certificate. The raw fees calculated using this method were: $49.84

for commercial phytosanitary certificates; $22.76 for non-commercial

phytosanitary certificates; and $7.05 for reissued and returned

phytosanitary certificates. We then rounded the raw fees for commercial

and non-commercial certificates up to the nearest quarter, for final

fees of $50.00 and $23.00. Due to the small number of reissued and

returned certificates which we process, and in order to make collecting

fees easier, we rounded the raw fee for these certificates down for a

final fee of $7.00.

Executive Order 12866 and Regulatory Flexibility Act

This rule has been reviewed under Executive Order 12866. The rule

has been determined to be significant for the [[Page 27440]] purposes

of Executive Order 12866 and, therefore, has been reviewed by the

Office of Management and Budget.

This proposed rule, if adopted, would increase the user fees for

phytosanitary certificates to recover the cost to APHIS of providing

export certification services for plants and plant products. This

proposed rule, if adopted, would also reduce the user fee for

international commercial aircraft to correspond with the cost to APHIS

of providing services. Amendments to user fees are necessary to adjust

for changes in service volume and in costs.

Federal phytosanitary certificates are issued in accordance with

the International Plant Protection Convention. They certify that

agricultural products moving between countries are free from injurious

insects and diseases. These certificates must be issued by APHIS to be

accepted in international commerce, and must accompany the majority of

agricultural commodities (except livestock products) traded. Traded

commodities generally include cereals and grains (such as soybeans,

wheat, and corn), fruit and vegetables, and other horticultural

products. In 1993, the value of exported agricultural products

requiring phytosanitary certificates was estimated at $3 billion.

Current user fees for phytosanitary certificates do not fully

recover APHIS's costs for services performed. In the past fiscal year,

the total cost of providing phytosanitary certificate services was

$3,487,347, while total fee collections amounted only to $2,875,716.

The reason for the discrepancy is that we overestimated the number of

certificates that would be issued, thereby underestimating the cost of

issuing each certificate. The total program cost for the 1994-1995

fiscal year, which we must recover through user fees, is estimated at

$4,643,385. This amount includes costs associated with program

delivery, program direction and support, agency support, departmental

charges, and Office of the General Counsel services. If the proposed

fee increases are adopted, estimated collections would rise to

$4,717,947.

Exporters of agricultural commodities would be affected by this

rule. The Regulatory Flexibility Act requires APHIS to address the

economic impact of imposing user fees on ``small'' entities. The Small

Business Administration (SBA) criteria for a small wholesale business

engaged in the trading of fresh fruits and vegetables is that the

business have 100 or fewer employees. SBA criteria for a small crop

production business is that it have annual revenues up to $500,000.

Approximately 90,000 phytosanitary certificates were issued in

1993. Certificates for commercial shipments are issued to wholesale

businesses engaged in the trading of fresh fruits and vegetables, and

to crop production businesses. Certificates are also issued to export

brokers who handle shipments of produce from various sources. The

proportion of exporters in this group which may qualify as small is

unknown. It is likely that a large number of these brokers employ fewer

than 100 workers.

In general, the value of an average commercial shipment is likely

to be well over the proposed $50 user fee. Given that the total value

of agricultural products requiring phytosanitary certificates exported

in 1993, estimated at $3 billion, is much larger in magnitude than the

$4.7 million in total user fee collection, any impact on U.S.

producers/exporters is expected to be small.

Phytosanitary certificates for noncommercial exporters are

generally issued to individuals and to exporters of low value

commodities. The user fee for this category of phytosanitary

certificate is proposed to increase from $19 to $23, an increase of 21

percent. Although user fees represent a proportionately larger share of

the total value of noncommercial and low-value exports, these small

exports may possess a much higher value in the foreign country than in

the United States. Moveover, exports by individuals may be gift items

with nonmonetary values offsetting some of the impact of the fee

increase.

SBA criteria for a small airline is that it have 1,500 or fewer

employees. Data from the 1988 Census indicates that there were 67

domestic and international airline operators employing a total of

481,000 employees. Although the size distribution of air carriers that

enter the customs territory of the United States is unknown, the impact

of the proposed user fee change, regardless of carrier size, is

positive--we are proposing a 13 percent user fee reduction, from $61 to

$53 per aircraft. The lower fee is sufficient to recover the full cost

of providing aircraft inspection services, without collecting more

revenue than needed to recover costs. The estimated cost to provide

inspection services for international commercial aircraft in FY 1995 is

$18.9 million. At the proposed user fee of $53 per aircraft and a

projected FY 1995 commercial aircraft volume of 357,299, total

collections would amount to $18.9 million.

Under these circumstances, the Administrator of the Animal and

Plant Health Inspection Service has determined that this action would

not have a significant economic impact on a substantial number of small

entities.

Executive Order 12372

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. (See 7 CFR part 3015, subpart V.)

Executive Order 12778

This proposed rule has been reviewed under Executive Order 12778,

Civil Justice Reform. If this proposed rule is adopted: (1) All State

and local laws and regulations that are inconsistent with this rule

will be preempted; (2) no retroactive effect will be given to this

rule; and (3) administrative proceedings will not be required before

parties may file suit in court challenging this rule.

Paperwork Reduction Act

In accordance with the Paperwork Reduction Act of 1980 (44 U.S.C.

3501 et seq.), the information collection or recordkeeping requirements

included in this proposed rule have been approved by the Office of

Management and Budget (OMB), and there are no new requirements. The

assigned OMB control number is 1515-00-62.

List of Subjects in 7 CFR Part 354

Exports, Government employees, Imports, Plant diseases and pests,

Quarantine, Reporting and recordkeeping requirements, Travel and

transportation expenses.

Accordingly, 7 CFR part 354 would be amended as follows:

PART 354--OVERTIME SERVICES RELATING TO IMPORTS AND EXPORTS; AND

USER FEES

1. The authority citation for part 354 would continue to read as

follows:

Authority: 7 U.S.C. 2260; 21 U.S.C. 136 and 136a; 49 U.S.C.

1741; 7 CFR 2.17, 2.51, and 371.2(c).

2. Section 354.3 would be amended as follows:

a. By revising paragraph (b)(2)(vi) to read as set forth below.

b. In paragraph (e)(1), the last sentence, by removing ``$61'' and

adding ``$53'' in its place.

c. In paragraph (g)(5)(i)(A), by removing ``$30'' and adding

``$50'' in its place.

d. In paragraph (g)(5)(i)(B), by removing ``$19'' and adding

``$23'' in its place.

e. In paragraph (g)(5)(ii), by removing ``$19'' and adding ``$23''

in its place. [[Page 27441]]

f. In paragraph (g)(5)(iii)(A), by removing ``$30'' and adding

``$50'' in its place.

g. In paragraph (g)(5)(iii)(B), by removing ``$19'' and adding

``$23'' in its place.

h. In paragraph (g)(5)(iv), by removing ``$30'' and adding ``$50''

in its place.

i. In paragraph (g)(5)(v), by removing ``$6'' and adding ``$7'' in

its place.

j. In paragraph (h)(2), by removing ``$6'' and adding ``$7'' in its

place.

Sec. 354.3 User fees for certain international services.

* * * * *

(b)(2)(vi) Any vessel which sails only between United States and

Canadian ports, when the Master of such vessel arriving from Canada

certifies, in the ``Remarks'' block of the General Declaration, Customs

Form 1301, that the vessel has sailed solely between the United States

and Canada for the previous 2 years.

(Approved by the Office of Management and Budget under control

number 1515-00-62).

* * * * *

Done in Washington, DC, this 19th day of May 1995.

Terry L. Medley,

Acting Administrator, Animal and Plant Health Inspection Service.

[FR Doc. 95-12750 Filed 5-23-95; 8:45 am]

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