[Federal Register Volume 88, Number 52 (Friday, March 17, 2023)]
[Rules and Regulations]
[Pages 16371-16372]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2023-05280]



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 Rules and Regulations
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 This section of the FEDERAL REGISTER contains regulatory documents 
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  Federal Register / Vol. 88, No. 52 / Friday, March 17, 2023 / Rules 
and Regulations  

[[Page 16371]]



DEPARTMENT OF AGRICULTURE

Animal and Plant Health Inspection Service

7 CFR Part 354

[Docket No. APHIS-2013-0021]


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 our regulations governing the user fees 
charged for certain Agricultural Quarantine and Inspection (AQI) 
services. We are reducing the fees charged to remove surcharges that 
were intended to fund a reserve. This action is necessary in order to 
ensure the regulations reflect an operational reduction of AQI fees 
that was announced through a November 1, 2022, Stakeholder Registry 
announcement, issued to comply with a September 15, 2022, judgment of 
the United States District Court for the District of Columbia, and 
which took effect on December 1, 2022.

DATES: Effective March 17, 2023.

FOR FURTHER INFORMATION CONTACT: Mr. George Balady, Senior Regulatory 
Policy Specialist, APHIS, 4700 River Road, Unit 131, Riverdale, MD 
20737 1231; (301) 851-2338; email: [email protected].

SUPPLEMENTARY INFORMATION:

Background

    The Food, Agriculture, Conservation, and Trade (FACT) Act of 1990 
(21 U.S.C. 136a) authorizes the Animal and Plant Health Inspection 
Service (APHIS) of the United States Department of Agriculture to 
collect user fees to fully fund its agricultural quarantine and 
inspection (AQI) services program. These user fees must be sufficient 
to cover the costs of:
     Providing AQI services in connection with the arrival, at 
a port in the customs territory of the United States, of an 
international passenger, commercial vessel, commercial aircraft, 
commercial truck, or railroad car (21 U.S.C. 136a(a)(1)(A));
     Providing preclearance or preinspection at a site outside 
the customs territory of the United States of an international 
passenger, commercial vessel, commercial aircraft, commercial truck, or 
railroad car (21 U.S.C. 136a(a)(1)(A));
     Administering the AQI Program (21 U.S.C. 136a(a)(1)(B)); 
and
     Through fiscal year 2002, maintaining a reasonable balance 
in the AQI User Fee Account also established by the Act (21 U.S.C. 
136a(a)(1)(C)).
    In the April 25, 2014, Federal Register (79 FR 22895-22908, Docket 
No. APHIS-2013-0021), we issued a proposal to update the methodology by 
which APHIS would calculate AQI user fees for the user fee classes 
subject to 21 U.S.C. 136a. Relying on this updated methodology, we also 
proposed new AQI user fee rates. Such a change was necessary to address 
historic underfunding of the AQI program.
    Following a comment period and review of public comments, on 
October 29, 2015, we issued a final rule in the Federal Register to 
revise the AQI user fees (80 FR 66748-66779; Docket No. APHIS-2013-
0021).\1\ Under the 2015 final rule, four of the user fees (for 
commercial trucks and truck transponders, international air passengers, 
and international cruise ship passengers) included a 3.5 percent 
reserve surcharge above unit cost as part of the fee structure. All 
other fees set in the 2015 final rule were set at or slightly below 
unit cost and, therefore, did not include a reserve surcharge, and 
accordingly did not collect for maintenance of the reserve.
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    \1\ To view the proposed rule, its supporting documents, the 
comments that we received, or the final rule, go to https://www.regulations.gov/docket/APHIS-2013-0021.
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    On May 13, 2016, the Air Transport Association of America and the 
International Air Transport Association filed suit against APHIS, 
claiming the final rule updating the fees for its AQI program violated 
the FACT Act and the Administrative Procedure Act. On June 21, 2022, 
the United States Court of Appeals for the District of Columbia Circuit 
issued an opinion that rejected the bulk of the challenges to APHIS's 
fee-setting. See Air Transport Ass'n of Am. v. United States Dep't of 
Agric., 37 F.4th 667 (D.C. Cir. 2022). However, the Court held that 
APHIS' authority to set and collect fees at a level to fund a reserve 
expired in 2002. The Court remanded this issue to the United States 
District Court for the District of Columbia for proceedings consistent 
with the appellate court's opinion. On September 15, 2022, the District 
Court issued a final judgment vacating the final rule only insofar as 
it authorizes collecting fees to maintain a reserve account.
    Consistent with this September 15, 2022, final judgment, on 
November 1, 2022, APHIS issued a Stakeholder Registry \2\ announcement 
stating that we were removing the 3.5 percent reserve surcharge from 
each fee class to which it had been applied and, effective December 1, 
2022, no longer collecting the reserve component for AQI user fees.
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    \2\ To view the Stakeholder Registry announcement, go to: 
https://www.aphis.usda.gov/aphis/newsroom/stakeholder-info/sa_by_date/sa-2022/aqi-user-fees-response.
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    This rule codifies that change in operational policy by revising 
the regulations to reflect the new fee rates.

Effective Date

    The Court held that APHIS' authority to collect fees sufficient to 
maintain a reserve expired after fiscal year 2002 and, therefore, the 
2015 final rule violated the FACT Act to the extent it set user fees at 
a level sufficient to maintain a reasonable balance in the AQI user fee 
account (See Air Transport Ass'n of Am., 37 F.4th at 673). However, the 
Court upheld the remaining aspects of the 2015 final rule with respect 
to all other challenges. As a result of the September 15, 2022, final 
judgment, the Agency is legally obligated to remove the reserve 
surcharge from any fees that were set at a level to include such a 
surcharge. Accordingly, on November 1, 2022, APHIS issued a Stakeholder 
Registry announcement operationally removing the surcharge from any 
fees that had been set to include it, thereby lowering those fees, 
effective December 1, 2022. In that same announcement, APHIS set forth 
its basis for lowering the fees operationally and without opportunity 
for public comment.

[[Page 16372]]

    In the announcement, APHIS indicated that we would ``publish a 
final rule in the Federal Register to codify this administrative 
action.'' Insofar as this rule codifies current Agency operational 
policy and ensures alignment between the fees operationally assessed 
and the fee levels set forth in the regulations, this rule pertains to 
Agency procedure, and is thus exempt from the need for public comment 
pursuant to paragraph (b)(3) of 5 U.S.C. 553. Moreover, the good cause 
that APHIS found for making the Stakeholder Registry announcement 
effective without prior public comment remains and applies equally to 
this rule; no public comment could alter the Court's mandate to vacate 
the portion of the final rule that collects fees to maintain a reserve. 
Finally, this rule is exempt from Executive Orders 12866 and 12988, and 
is not a rule as defined by the Regulatory Flexibility Act (5 U.S.C. 
501).

Paperwork Reduction Act

    This final 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 7 CFR Part 354

    Animal diseases, Exports, Government employees, Imports, Plant 
diseases and pests, Quarantine, Reporting and recordkeeping 
requirements, Travel and transportation expenses.
    Accordingly, we are 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. Section 354.3 is amended by revising the table in paragraph (c)(1) 
and by revising paragraph (f)(1) to read as follows:


Sec.  354.3  User fees for certain international services.

* * * * *
    (c) * * *
    (1) * * *

                       Table 2 to Paragraph (c)(1)
------------------------------------------------------------------------
                       Effective date                           Amount
------------------------------------------------------------------------
Beginning March 17, 2023...................................       $7.29
------------------------------------------------------------------------

* * * * *
    (f) Fee for inspection of international passengers. (1) 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 AQI user fee will apply to 
tickets purchased beginning March 17, 2023. The fees are shown in the 
following table:

                       Table 5 to Paragraph (f)(1)
------------------------------------------------------------------------
        Effective dates \1\            Passenger type         Amount
------------------------------------------------------------------------
Beginning March 17, 2023..........  Commercial aircraft.           $3.83
Beginning March 17, 2023..........  Cruise ship.........            1.68
------------------------------------------------------------------------
\1\Persons who issue international airline and cruise line tickets or
  travel documents are responsible for collecting the AQI international
  airline passenger user fee and the international cruise ship passenger
  user fee from ticket purchasers. Issuers must collect the fee
  applicable at the time tickets are sold. In the event that ticket
  sellers do not collect the AQI user fee when tickets are sold, the air
  carrier or cruise line must collect the user fee that is applicable at
  the time of departure from the passenger upon departure.

* * * * *

    Done in Washington, DC, this 9th day of March 2023.
Michael Watson,
Acting Administrator, Animal and Plant Health Inspection Service.
[FR Doc. 2023-05280 Filed 3-16-23; 8:45 am]
BILLING CODE 3410-34-P