Veterinary Services User Fees; Biosecurity Level Three Laboratory Inspection Fee

DEPARTMENT OF AGRICULTURE

Animal and Plant Health Inspection Service

9 CFR Part 130

[Docket No. 98-052-1]

Veterinary Services User Fees; Biosecurity Level Three Laboratory

Inspection Fee

AGENCY: Animal and Plant Health Inspection Service, USDA.

ACTION: Proposed rule.

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SUMMARY: We are proposing to amend existing user fees for the

inspection for approval of biosecurity level three laboratories.

Existing user fees require biosecurity level three laboratories to pay

user fees for inspection based on hourly rates. We are proposing to

replace the hourly rates for this specific service with a flat rate

user fee that would cover all the costs of inspection related to

approving a laboratory for handling one defined set of organisms or

vectors. We are taking this action in order to ensure that the user

fees cover our costs.

DATES: We invite you to comment on this docket. We will consider all

comments that we receive by September 13, 1999.

ADDRESSES: Please send your comment and three copies to: Docket No. 98-

052-1, Regulatory Analysis and Development, PPD, APHIS, Suite 3C03,

4700 River Road, Unit 118, Riverdale, MD 20737-1238. Please state that

your comment refers to Docket No. 98-052-1.

You may read any comments that we receive on this docket in our

reading room. The reading room is located in room 1141 of the USDA

South Building, 14th Street and Independence Avenue, SW., Washington

DC. Normal reading room hours are 8 a.m. to 4:30 p.m., Monday through

Friday, except holidays. To be sure someone is there to help you,

please call (202) 690-2817 before coming.

APHIS documents published in the Federal Register, and related

information, including the names of organizations and individuals who

have commented on APHIS rules, are available on the Internet at http://

www.aphis.usda.gov/ppd/rad/webrepor.html.

FOR FURTHER INFORMATION CONTACT: For information concerning program

operations for Veterinary Services, contact Ms. Louise Lothery,

Administrative Officer, Management Support Staff, VS, APHIS, 4700 River

Road Unit 44, Riverdale, MD 20737-1231; (301) 734-7517.

For information concerning rate development of the proposed user

fee, contact Ms. Donna Ford, Section Head, Financial Systems and

Services Branch, Budget and Accounting Service Enhancement Unit, MRPBS,

APHIS, 4700 River Road Unit 54, Riverdale, MD 20737-1232; (301) 734-

8351.

SUPPLEMENTARY INFORMATION:

Background

User fees to reimburse the Animal and Plant Health Inspection

Service (APHIS) for the costs of providing veterinary diagnostic

services and import- and export-related services for live animals and

birds and animal products are contained in 9 CFR part 130. Section

130.8 lists miscellaneous flat rate user fees. Section Sec. 130.9 lists

the hourly rate user fees charged for APHIS' import or entry services,

including inspection of laboratories within the United States.

In accordance with 9 CFR part 122, we require inspection of

biosecurity level three laboratories prior to their receiving and

handling high risk organisms or vectors. Biosecurity level three

laboratories are used to conduct research on foreign animal disease

agents, especially viruses, with high disease risks. These laboratories

utilize containment facilities that use special precautions, such as

negative pressure ventilation, to keep the disease agents within the

facility and to protect the researchers who work with them.

We are proposing to revise the user fees for inspection of these

laboratories based on our review of user fees and the costs of service.

Under the current hourly rate user fees in Sec. 130.9, APHIS has been

unable to recover all of the costs associated with inspecting

biosecurity level three laboratories. Under the hourly rate user fee

structure, the traveltime allowance provides for a maximum of 6 hours

of round-trip ground travel. This traveltime allowance is insufficient

in that air travel and overnight lodging are required in order to

access more than half of the laboratories APHIS currently inspects.

Under the current hourly rates, the average user fee collected for

inspection for approval of biosecurity level three laboratories is

approximately $462 per laboratory. The actual average cost of

inspecting these laboratories is approximately $977 per laboratory. The

portion of the actual cost that we are not currently able to recover is

the portion of transportation (i.e., airfare and related expenses) and

lodging costs we incur above the 6-hour traveltime allowance for

laboratories that are not located near an authorized APHIS inspector's

place of duty. We do not believe it is fair to charge those

laboratories a higher fee than others based solely on their physical

location in relation to authorized inspectors' official duty stations.

Therefore, in order to ensure that we recover all costs, we are

proposing to amend 9 CFR part 130 to establish a flat rate user fee of

$977 to cover the cost of APHIS' inspection of biosecurity level three

laboratories. The flat rate user fee would cover all costs of

inspection, including airfare and/or ground travel, lodging,

inspection, per diem, and miscellaneous travel expenses. We are also

proposing to amend Sec. 130.1 to add a definition for ``biosecurity

level three laboratory'' to read: ``A laboratory or production facility

that works with foreign or domestic animal disease agents, organisms,

or vectors that spread by aerosol route and that have serious or lethal

effects, therefore requiring special biocontainment measures.''

We are also proposing to clarify that the hourly rate user fees

contained in Sec. 130.9 are not applicable to services that are billed

under flat rate fees contained in other sections of part 130.

Executive Order 12866 and Regulatory Flexibility Act

This proposed 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. 603, we have performed an initial

regulatory flexibility analysis, which is set out below, regarding the

economic effects of this proposed rule on small entities. Based on the

information we have, there is no basis to conclude that this rule will

result in any significant economic effect on a substantial number of

small entities. However, we do not currently have all of the data

necessary for a comprehensive analysis of the effects of this proposed

rule on small entities. Therefore, we are inviting comments on

potential effects.

User fees to reimburse APHIS for the costs of providing veterinary

diagnostic services and import- and export-related services for live

animals and birds and

[[Page 37904]]

animal products are contained in 9 CFR part 130. Currently, APHIS

charges user fees for the inspection of biosecurity level three

laboratories under the hourly rate user fees contained in Sec. 130.9.

APHIS currently inspects several laboratories in the United States

that conduct biosecurity level three research on high-risk organisms

and vectors. These facilities currently pay an average of $462 for

inspections required to be approved to handle a defined set of

organisms or vectors. The average actual cost of providing this

service, including the cost of air travel and lodging necessary to

inspect certain laboratories, is $977 per laboratory. APHIS has not

been able to recover all costs of inspection associated with approving

these laboratories under the current hourly rate user fee structure,

because current regulations only provide for 6 hours of ground travel.

Therefore, we are proposing to amend the regulations in Sec. 130.8

by establishing a flat rate user fee of $977 for this service, which

would cover the average cost of inspection related to approving a

laboratory to handle one defined set of organisms or vectors.

We arrived at the flat rate user fee that we are proposing by using

the average of the number of hours required for an APHIS inspector to

complete an inspection, travel costs (including airfare and lodging,

when appropriate), per diem, and miscellaneous travel expenses.

Effects on Small Entities

Under Small Business Administration (SBA) Guidelines, a biosecurity

level three laboratory with less than $5 million in annual sales is

considered a small entity. All of the laboratories we inspect are small

entities.

We anticipate that the economic effects of this proposed rule on

these laboratories will be minimal. An informal survey of several of

the affected laboratories revealed that in some cases inspection costs

at laboratories are charged directly to a client if the client

requested analysis of the particular organism or vector for which the

inspection was undertaken. However, in most cases, laboratories pay for

inspections with overhead funds from their operating budget. There are

two types of biosecurity level three laboratories that we inspect. Some

laboratories are privately owned, for-profit enterprises that charge

clients fees to use the laboratory to research biosecurity level three

organisms or vectors. These laboratories typically bill their clients

for the cost of APHIS' inspection service and, therefore, are not

directly affected by the cost of inspections.

Other laboratories are publicly owned and are attached to

universities or government agencies. These laboratories typically

include anticipated APHIS inspection costs in their yearly budgets. We

do not have the data to assess the effect of the proposed rate change

on these laboratories. On average, laboratories are inspected twice a

year. However, a laboratory working with many different types of

organisms could be subject to additional inspections.

The proposed flat rate user fees will enable all laboratories to

know in advance what costs they will incur.

Alternatives Considered

In developing this proposed rule, we considered: (1) Making no

changes to our existing method of recovering costs for inspecting

biosecurity level three laboratories; (2) proposing to charge

laboratories the exact costs incurred during each individual

inspection, including costs of travel and lodging; or (3) proposing to

charge a flat rate user fee for the inspection of biosecurity level

three laboratories.

We rejected the first alternative because if we made no changes to

the regulations, we would continue to be unable to recover all of the

costs associated with the inspection of biosecurity level three

laboratories. All costs to APHIS for providing this service must be

recovered solely through user fees; there is no other form of funding

available to us that would cover this service.

We also rejected the second alternative, in which each laboratory

would be charged the exact cost of inspection, including travel and

lodging for APHIS personnel. We believe it is unfair to charge certain

customers higher fees than others simply because a qualified APHIS

inspector may not be stationed nearby. We believe that the fairest

method of charging customers for this service is through a flat rate

user fee.

The proposed changes to the regulations would result in no new

information collection or recordkeeping requirements.

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 12988

This proposed rule has been reviewed under Executive Order 12988,

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

This proposed rule contains no new information collection or

recordkeeping requirements under the Paperwork Reduction Act of 1995

(44 U.S.C. 3501 et seq.).

List of Subjects in 9 CFR Part 130

Animals, Birds, Diagnostic reagents, Exports, Imports, Poultry and

poultry products, Quarantine, Reporting and recordkeeping requirements,

Tests.

Accordingly, we propose to amend 9 CFR part 130 as follows:

PART 130--USER FEES

1. The authority citation for part 130 would be revised to read as

follows:

Authority: 5 U.S.C. 5542; 7 U.S.C. 1622; 19 U.S.C. 1306; 21

U.S.C. 102-105, 111, 114, 114a, 134a, 134c, 134d, 134f, 136, and

136a; 31 U.S.C. 3701, 3716, 3717, 3719, and 3720A; 7 CFR 2.22, 2.80,

and 371.2(d).

2. In Sec. 130.1, a definition for ``biosecurity level three

laboratory'' would be added in alphabetical order to read as follows:

Sec. 130.1 Definitions.

* * * * *

Biosecurity level three laboratory. A laboratory or production

facility that works with foreign or domestic animal disease agents,

organisms, or vectors that spread by aerosol route and that have

serious or lethal effects, therefore requiring special biocontainment

measures.

* * * * *

3. In Sec. 130.8, paragraph (a), the table would be amended by

adding a new entry in alphabetical order to read as follows:

Sec. 130.8 User fees for other services.

(a) * * *

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Service User fee

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* * * *

* * *

Inspection for approval of $977.00 for all costs of inspection

biosecurity level three related to approving the laboratory for

laboratories. handling one defined set of organisms or

vectors.

* * * *

* * *

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4. In Sec. 130.9, the introductory text of paragraph (a) would be

revised to read as follows:

Sec. 130.9 User fees for miscellaneous import or entry services.

(a) User fees for import or entry services listed in paragraphs

(a)(1) through (a)(4) of this section, except those services covered by

flat rate user fees elsewhere in this part, will be calculated at

$56.00 per hour, or $14.00 per quarter hour, with a minimum fee of

$16.50, for each employee required to perform the service. The person

for whom the service is provided and the person requesting the service

are jointly and severally liable for payment of these user fees in

accordance with Secs. 130.50 and 130.51.

* * * * *

Done in Washington, DC, this 8th day of July 1999.

A. Cielo,

Acting Administrator, Animal and Plant Health Inspection Service.

[FR Doc. 99-17938 Filed 7-13-99; 8:45 am]

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