0489 (FR 22-023) Proposed Rule FR Notice

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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
Animal and Plant Health
Inspection Service, USDA.
ACTION: Proposed rule.
AGENCY:

We are proposing to update
and amend the user fee regulations
associated with the agricultural
quarantine and inspection (AQI)
program. Specifically, we propose to
adjust 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;
adjust the caps on prepaid fees
associated with commercial trucks and
commercial railroad cars; remove
certain fee exemptions that are no
longer justifiable based upon pathway
analyses of risk; and restructure the
treatment monitoring fee. We would
also revise requirements pertaining to
remittances and statements.
Specifically, we would require monthly
rather than quarterly remittances for the
commercial aircraft fee, international air
passenger fee, and international cruise
passenger fee to make our revenue
stream more stable, clarify our
requirements, and provide for electronic
payments and statements. We would
also 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. These
proposed 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: We will consider all comments
that we receive on or before October 10,
2023.
ADDRESSES: You may submit comments
by either of the following methods:
• Federal eRulemaking Portal: Go to
www.regulations.gov. Enter APHIS–
2022–0023 in the Search field. Select

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SUMMARY:

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the Documents tab, then select the
Comment button in the list of
documents.
• Postal Mail/Commercial Delivery:
Send your comment to Docket No.
APHIS–2022–0023, Regulatory Analysis
and Development, PPD, APHIS, Station
3A–03.8, 4700 River Road Unit 118,
Riverdale, MD 20737–1238.
Supporting documents and any
comments we receive on this docket
may be viewed at Regulations.gov in our
reading room, which is located in room
1620 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) 799–7039 before
coming.
Mr.
George Balady, Senior Regulatory Policy
Specialist, PPQ, APHIS, 4700 River
Road Unit 36, Riverdale, MD 20737;
(301) 851–2338; [email protected].
SUPPLEMENTARY INFORMATION:
FOR FURTHER INFORMATION CONTACT:

Table of Contents
• Legal Authority and Overview of
Program Activities
• Need for the Proposed Rule
• Updates to the ABC Model and Cost
Calculations
• Court Ruling on Reserve Surcharge
• Proposed User Fee Amounts and
Justifications
• Proposed Regulatory Changes
Æ Revisions to Regulatory Definitions
Æ Commercial Vessels
Æ Commercial Trucks
Æ Commercial Railroad Cars
Æ Commercial Aircraft
Æ International Passengers Arriving at
Airports and Seaports
Æ AQI Treatment Monitoring
D Change From a per-Treatment Basis
to an Hourly Basis
D Applying the Treatment Monitoring
Fee to All Treatment Types and
Treatment-Related Activities
D Applying Overtime to Treatment
Monitoring Performed Outside of
Regular Business Hours
D Changes to Treatment Monitoring
Fee Designation of Responsible
Parties and Remittance Procedures
• Technical amendments
• Records Retention
• Severability
• Executive Orders 12866 and 13563,
and Regulatory Flexibility Act
Æ Air Passengers
Æ Commercial Aircraft
Æ Small aircraft Exemption
Æ Commercial Cargo Vessel
Æ Canadian Barge Exemption
Æ Commercial Truck

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•
•
•
•

Æ Commercial Cargo Railroad Car
Æ Cruise Vessel Passenger
Æ Treatment Monitoring
Executive Order 12988
Executive Order 13175
Paperwork Reduction Act
E-Government Act Compliance

Legal Authority and Overview of
Program Activities
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 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’’:
• 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;
• Providing ‘‘preclearance or
preinspection at a site outside the
customs territory of the United States’’
to the conveyances and the passengers
listed above; and
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:
• 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.’’
• 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.
AQI services funded by these user
fees and covered in the regulations in
part 354 include inspections of arriving
commercial maritime vessels,
commercial trucks, commercial railroad

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cars, commercial aircraft, international
air passengers, and international sea
(cruise) passengers; as well as
monitoring phytosanitary treatment and
treatment-related activities. Services
related to conveyances and cargo
include issuance of import permits,
review of manifests and other
documentation, as well as inspections of
the cargo, conveyances, and packaging
material for prohibited imports and
contaminants, pests, or invasive species.
Passenger services include prescreening
and inspection of passenger baggage and
personal belongings for prohibited
agricultural imports. We also charge a
user fee for monitoring prescribed
treatments that are performed on some
agricultural goods as a condition of
entry or when a pest of quarantine
significance (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.
APHIS and the Department of
Homeland Security’s (DHS) U.S.
Customs and Border Protection (CBP)
work together to carry out these AQI
program activities and thereby protect
U.S. agriculture and natural resources
by intercepting foreign animal and plant
pests and diseases (such as African
swine fever or ASF, foot and mouth
disease, exotic fruit flies, and Ralstonia
race 3 biovar 2) before they can enter the
country. APHIS and CBP perform
different functions that complement
each other. For example, CBP’s AQI
activities include inspecting passengers,
passenger baggage, personal belongings,
conveyances, shipments, and
monitoring regulatory compliance at
United States ports of entry; CBP also
preclears passengers at certain ports of
departure outside the United States.
APHIS performs pest identification for
shipments across all modes (air cargo,
maritime cargo, truck cargo, etc.),
inspection of plants for planting
shipments, and monitoring of
phytosanitary treatments and related
activities. CBP’s agricultural inspection
and safeguarding activities generate the
majority of AQI costs covered by the
fees, approximately 70 percent of
program costs per year. Pursuant to
§ 354.3, APHIS collects AQI user fees for
commercial railroad cars, commercial
aircraft, international air and cruise
(sea) passengers, and treatment
monitoring directly. Also pursuant to
§ 354.3, CBP collects AQI user fees for
commercial vessels, commercial trucks,
and commercial truck transponders on
APHIS’ behalf, and then transfers the
funds to APHIS. APHIS periodically
transfers that portion of the funds

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allocated for CBP in accordance with
§ 421 of the Homeland Security Act of
2002 (6 U.S.C. 231 and the
Memorandum of Agreement effectuating
the transfer of functions.1)
Inspection of commercial aircraft and
their passengers account for the
preponderance of fees remitted. In fiscal
year (FY) 2017 to FY 2019, commercial
aircraft collections averaged over 23
percent of total collections annually, or
nearly $188M. Also, from FY 2017 to FY
2019, commercial aircraft passenger
collections averaged over 61 percent of
total collections annually, or nearly
$486M. 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 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. (For this reason,
we propose a change in air collections
to be monthly rather than quarterly, as
discussed below.)
Need for the Proposed Rule
In a final rule published in the
Federal Register on October 29, 2015
(80 FR 66748–66779, Docket No.
APHIS–2013–0021),2 we updated and
amended the user fee regulations in
§ 354.3 to improve AQI service cost
recovery and to more accurately align
fees with the costs associated with each
fee service. Significant changes
included the following:
• Adding new fee categories for
international cruise passengers and
monitoring of phytosanitary treatments;
• Adjusting existing fees charged for
certain agricultural quarantine and
inspection services that are provided in
connection with certain commercial
vessels, commercial trucks, commercial
railroad cars, commercial aircraft, and
international air passengers arriving at
ports in the customs territory of the
United States; and
• Adjusting the user fee cap
associated with commercial trucks and
adjusting or removing the user fee cap
associated with commercial railroad
cars.
For FYs 2017 through 2019, the AQI
program ran an average deficit of over
$166 million annually. For a number of
reasons, as discussed below, the fees
1 The Memorandum of Agreement can be viewed
on the APHIS website at https://
www.aphis.usda.gov/aphis/ourfocus/planthealth/
import-information/moa.
2 To view the final rule, go to
www.regulations.gov and enter APHIS–2013–0021
in the Search field.

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established in the 2015 rulemaking,
which were based on cost data from FY
2010 through FY 2012, no longer reflect
actual program costs. This proposed
rule uses cost data from FY 2017
through FY 2019 because these years
reflect costs from the most recent period
of normal (pre-pandemic) operations,
and most closely approximate the costs
in a return to normal operations (postpandemic) AQI program environment.
For the 2015 rulemaking, APHIS used
an Activity-Based Costing (ABC) Model
to analyze the costs associated with the
program. ABC is a cost accounting
method used to calculate the total costs
of a service or product. It differs from
Financial Accounting, which is the
preparation of financial reports for
stakeholders or users who are interested
in the financial position of an agency or
program. ABC translates costs from
‘‘what we pay for’’ to ‘‘what we do.’’
This process entails assigning both
direct and indirect costs to an activity
(such as managing the import permitting
process), associating those activities
with outputs (such as a Maritime Cargo
Inspection), and using the cost of
outputs to calculate fee levels (such as
the Commercial Vessel Fee) for specific
user classes.
In developing this proposed rule, we
re-examined the ABC Model cost
allocations to ensure costs accurately
reflect workload. We ensured that all
costs flow through the model, that the
relationships between objects in the
model were accurate, and that the
allocation of costs followed standard
cost accounting methodologies. The reexamination also revealed that the 2015
model is not forward looking; that is, it
does not factor in costs required to
address new program and staffing
needs. Emerging issues that are not
accounted for in the 2015 model include
the need for additional inspection
resources at ports of entry to mitigate
emerging risks,3 such as ASF at airports,
the expanding demand for treatment
monitoring services, such as monitoring
3 For example, on July 28, 2021, the Dominican
Republic informed APHIS that samples obtained
from swine in the country had tested positive for
ASF, a highly contagious disease of wild and
domestic swine that can spread rapidly in swine
populations with extremely high rates of morbidity
and mortality. Subsequently, on September 20 of
that year, the Chief Veterinary Officer in Haiti
reported a positive case of ASF to the World
Organization for Animal Health (WOAH). Because
of Hispaniola’s proximity to Puerto Rico and the
U.S. Virgin Islands, and the frequency of trade in
pork and pork products between Hispaniola and
these territories, APHIS enhanced monitoring and
surveillance activities for ASF in Puerto Rico and
the U.S. Virgin Islands as a result of these
detections, and submitted a dossier to WOAH to
finalize a new ASF protection zone in Puerto Rico
and the U.S. Virgin Islands.

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the restacking of cargo in overloaded
cargo containers, and capital planning.
In developing the model for this
proposed rule, the 2023 full-time
equivalent (FTE) model, APHIS
incorporated cost objects for additional
staffing to address these workload
increases, and additional program costs
related to capital planning: New and
upgraded facilities, new equipment, and
outreach. This proposed rule would
adjust AQI user fees to reflect the
updates and additions to the cost model
including updated cost data, changes in
cost allocation methodology, additional
personnel to address emerging risks,
and capital planning costs.
Further, due to its retrospective
nature, ABC modeling fails to account
adequately for inflation unless inflation
factors are applied to it. For example,
the 2015 rulemaking used source data
from FY 2010 through FY 2012 adjusted
to FY 2016 dollars [80 FR 66753];
however, no adjustment was made for
inflation beyond the beginning of FY
2016 (October 2015). As a result, the
2015 fee rates using FY 2016 dollars are
still in effect after 7 years (FY 2023),
meaning, as of September 2022 (the end
of FY 2022 for APHIS), the fees are
approximately 24.79 percent 4 below the
levels necessary to meet today’s costs
based on inflation alone. As discussed
in the regulatory impact analysis (RIA)
accompanying this proposed rule,5 we
determined that costs would be more
accurately recovered if the ABC Model
cost data were adjusted for inflation
based on the Chained Consumer Price
Index for all Urban Consumers (C–CPI–
U).
Our ability to recover the full costs of
administering the AQI program has also
been limited by exemptions and fee
caps. Under the existing regulations,
commercial aircraft with 64 or fewer
seats meeting certain conditions have
been exempted from the fees listed in
§ 354.3(e), and barges operating between
the United States and Canada meeting
certain conditions have been exempted
from those listed in § 354.3(b). The
original basis for both of these
exemptions, as discussed in earlier
rulemakings, was that they posed little
or no sanitary/phytosanitary risk, and
therefore did not require inspection and
would not incur costs to the program
(see 58 FR 14305–14307, Docket No. 92–
088–2 6 and 75 FR 10634–10644, Docket
4 https://www.bls.gov/data/inflation_
calculator.htm using the period October 2015 to
September 2022.
5 To view these and other supporting documents,
go to www.regulations.gov and enter APHIS–2022–
0023 in the Search field.
6 FR–1993–03–17.pdf (govinfo.gov), published in
the Federal Register on May 24, 1995.

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No. APHIS–2006–0096 7). However,
recent findings from two APHIS
pathway analyses (‘‘Pathway Analysis
for Commercial Aircraft with 64 or
Fewer Seats’’ and ‘‘Pathway Analysis for
Barges from Canada’’),8 indicate that
today commercial aircraft with 64 or
fewer seats do serve as a pathway for the
introduction of quarantine pests, and
that barges from Canada that meet the
current user fee exemption do not pose
less of a phytosanitary risk than barges
travelling from other countries or other
vessel types travelling from Canada. The
analyses accordingly conclude that both
such aircrafts and such barges merit
inspection that incurs AQI program
costs. We discuss the analyses at greater
length later in this document, under the
headings ‘‘Commercial Aircraft’’ and
‘‘Commercial Vessels.’’
Fee caps for commercial trucks and
railroad car user fees have also limited
our ability to cover costs. Under current
§ 354.3(c)(3)(i) and (d)(3)(i),
respectively, operators of commercial
trucks and commercial railroad cars
have the option to prepay AQI user fees
for a calendar year. A prepayment
equivalent to 40 times an individual
crossing allows a commercial truck to
make an unlimited number of crossings
in a calendar year. For commercial
railroad cars, the prepayment amount
for unlimited crossings in a calendar
year is capped at 20 times the fee for an
individual crossing. We have
determined that these prepayment
multiples should be increased, as they
are no longer sufficient to recover
program costs and fail to account for
increased usage of transponders and
prepayment options.9 This
determination is discussed at length
below, under the section heading
labeled ‘‘Commercial Trucks.’’
Without adequate funding, the AQI
program is likely to fail to keep pace
with growing demand and become less
effective, leading to more frequent and
severe agricultural pest and disease
outbreaks in the United States. Such
outbreaks can be costly. To cite one
example, APHIS has spent more than
$1.3 billion on the eradication and
quarantine of wood, tree, and forest
7 To

view the rule, the supporting documents,
and the comments we received, go to
www.regulations.gov and enter APHIS–2006–0096
in the Search field.
8 These analyses are available with this proposed
rule. See footnote 5 for instructions on how to view
these and other supporting documents on
Regulations.gov.
9 See supporting document ‘‘Analysis of AQI User
Fees: Truck Transponder and Prepaid Railroad Car
Multiples Using Fee Collections and Arrival Data.’’
See footnote 5 for instructions on how to view this
and other supporting documents on
Regulations.gov.

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pests such as Asian Longhorn Beetle,
Emerald Ash Borer, and Spotted Lantern
Fly to protect U.S. forests and the U.S.
forest products industry valued at more
than $350 billion in manufacturing
production annually.10 Additionally,
such outbreaks may cause declines in
U.S. domestic production of agricultural
products (according to the Census of
Agriculture 2017, the market value of
U.S. agricultural products sold was
$388.5 billion 11) and harm natural
resources. Trading partners may
question the sanitary/phytosanitary
integrity of U.S. agricultural products,
which would either reduce the demand
for or value of U.S. agricultural exports,
which were valued at $196.4 billion in
fiscal year 2022.12 Further, inadequate
funding would prevent the AQI program
from being able to adapt to meet
emerging program needs as discussed
above, resulting in additional challenges
in effectively clearing cargo and
passengers and mitigating the risk of
costly pest and disease outbreaks
impacting U.S. agricultural production
and exports, and natural resources. The
AQI program makes the safe importation
of agricultural commodities possible.
Such imports accounted for $194.0
billion in economic activity in FY
2021.13
We are therefore proposing to update
and amend the user fee regulations to
align the fees with the current needs of
the AQI program. Specifically, we
propose to adjust the fees for certain
AQI services that are provided in
connection with certain commercial
vessels, commercial trucks, commercial
railroad cars, commercial aircraft, and
international air and sea passengers
arriving at ports in the customs territory
of the United States; adjust prepaid fee
caps associated with commercial trucks
and commercial railroad cars; remove
certain fee exemptions that are no
longer justifiable; and restructure the
treatment monitoring fee. We would
also revise the payment sections in
order to recover the full cost of
providing these AQI services,
commensurate with the class of persons
or entities paying the fees.
Updates to the ABC Model and Cost
Calculations
In updating our cost modeling, APHIS
contracted in 2021 with the accounting
10 https://www.afandpa.org/statistics-resources/
our-economic-impact.
11 https://www.nass.usda.gov/Publications/
AgCensus/2017/Full_Report/Volume_1,_Chapter_1_
US/usv1.pdf, pg. 17.
12 https://www.ers.usda.gov/webdocs/outlooks/
105919/aes-123.pdf?v=5132.7.
13 Ibid.

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firm Grant Thornton 14 to review the
data and the methodology in the ABC
Model. Grant Thornton’s assessment of
the APHIS AQI model included a
thorough review of every cost object,
driver, assignment, and value. APHIS
prepared two different versions of the
ABC Model, using APHIS and CBP data
sources, and Grant Thornton compared
them. One version of the model used the
cost allocation methodology from the
2015 rulemaking (direct trace and
number of/workload), and the second
used the proposed cost allocation
methodology (direct trace, number of/
workload, full-time equivalent (FTE)
hours) for comparison purposes. The
intent was to identify and resolve any
inconsistencies between versions and
compare the impact of the two different
methodologies on cost allocation, as
discussed further below.
As a result of its review, Grant
Thornton recommended options to more
accurately allocate costs based on the
activity and the output.15 In the 2015
rulemaking, APHIS used two methods
for allocating costs: Direct trace, which
directly assigns costs to outputs; and
‘‘number of’’ (or workload), which
allocated costs based upon the number
of inspection units (a passenger, a
vessel, an aircraft, etc.). Grant Thornton
recommended that APHIS add a third
allocation method for allocating certain
costs: FTE hours spent conducting an
output (i.e., such as an inspection). As
noted above, APHIS prepared two
versions of the model for each of the
three base years—one using the
methodology from the 2015 rulemaking
(direct trace and number of/workload)
and one using the proposed
methodology (direct trace, number of/
workload, FTE hours) for comparison
purposes. As part of the comparison,
Grant Thornton reviewed the
underlying CBP FTE allocation
methodology and provided
recommended changes for CBP support
activities (supervision, data entry, etc.)
that should be allocated across the
direct AQI activities. APHIS reviewed
and accepted the recommendations and
incorporated those changes into a new
FTE data source file and the AQI cost
models. Concurring with Grant
14 Since completion of the assessment, Grant
Thornton’s government division has moved to
Guidehouse Federal. However, to reflect the firm’s
name at the time the assessment was completed, we
use the name ‘‘Grant Thornton’’ throughout this
document when referring to the work.
15 See supporting document ‘‘Grant Thornton
United States Dpartment of Agriculture Animal and
Plant Health Inspection Service Services to Validate
Agency’s Activity-Based Cost Model for AQI User
Fees: Recommendations Report.’’ See footnote 5 for
instructions on how to view this and other
supporting documents on Regulations.gov.

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Thornton’s recommendation, APHIS is
employing the model with the new
methodology (direct trace, number of/
workload, FTE hours) for this
rulemaking.
Several agencies charge user fees
under a variety of authorities, and use
different methodologies to meet their
statutory mandates. For example, CBP’s
Consolidated Omnibus Budget
Reconciliation Act of 1985 (COBRA)
fees are set as prescribed by statute with
adjustments for inflation.16 17 The U.S.
Patent and Trademark Office uses an
activity-based costing methodology.18
Federal Maritime Commission uses a
costing methodology under the
Independent Offices Appropriation Act
of 1952 (31 U.S.C. 9701) in accordance
with OMB Circular A–76, Performance
of Commercial Activities (revised May
29, 2003).19 USDA’s Agricultural
Marketing Service develops fees through
a series of equations set by
rulemaking,20 21 and a notice-based
process for updating the components of
the equations.22 Accordingly, when an
Agency is not fulfilling a ministerial
function to prescribe user fees in a
certain manner (as is the case with
CBP), there are a variety of
methodologies currently in use
throughout the Federal government to
compute the fees, and the most
pertinent consideration is which
methodology is most appropriate for a
particular Agency’s purposes. In this
regard, we consider the proposed threepart methodology to have a distinct
advantage over the previous two-part
methodology with respect to the
allocation of costs in non-equivalent
outputs. As previously mentioned,
direct trace allocation assigns costs
directly to an output or outputs, and
‘‘number of’’/workload allocation
assigns costs based on the number of
inspection units. ‘‘Number of’’/
workload allocation is optimal for
equivalent outputs. For example, a pest
identification is equivalent across all
pathways: The workload to perform a
taxonomic pest identification in the air
passenger environment is equivalent to
16 https://www.govinfo.gov/content/pkg/FR-200701-26/pdf/07-335.pdf.
17 https://www.govinfo.gov/content/pkg/FR-201711-01/pdf/2017-23878.pdf.
18 https://www.uspto.gov/sites/default/files/
documents/Activity%20Based%20Information
%20and%20Patent%20
Fee%20Unit%20Expense%20Methodology.docx.
19 https://downloads.regulations.gov/FMC-20230009-0001/content.pdf.
20 https://downloads.regulations.gov/AMS-LPS13-0050-0001/content.pdf.
21 https://downloads.regulations.gov/AMS-LPS13-0050-0004/content.pdf.
22 https://downloads.regulations.gov/AMS_
FRDOC_0001-2337/content.pdf.

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the workload to perform a taxonomic
pest identification in maritime, truck,
rail, or air cargo environments.
However, the ‘‘number of’’/workload
method is less useful for non-equivalent
outputs such as the inspection of an air
passenger and their luggage compared to
the inspection of a maritime vessel and
its associated cargo. While both are
considered individual inspection
events, they are decidedly not
equivalent in terms of workload. The
use of FTE hours, that is, the number of
hours spent producing outputs, is the
optimal cost allocation method for nonequivalent outputs. To continue the air
passenger/commercial vessel
comparison, assigning costs using the
FTE hours spent inspecting in the air
passenger environment compared to the
number of FTE hours spent inspecting
in the commercial vessel and maritime
cargo environments provides a much
more accurate means of measuring the
workload required for these two nonequivalent outputs than does the
previous methodology. Following the
model validation task, Grant Thornton
found that the APHIS (direct trace,
number of/workload, FTE hours) cost
models use the preferred allocation
scheme for equivalent outputs and nonequivalent outputs as appropriate.
A second proposed update to the ABC
Model and cost calculation is to change
the manner in which we calculate costs
to account for inflation. The proposed
rule would apply the C–CPI–U to prior
years’ (FY 2017–FY 2019) costs into
rulemaking year dollars before
calculating the base fees. We would also
apply a projected C–CPI–U to set the
overall fee schedule. In prior
rulemaking to adjust AQI user fees,
APHIS has used the Office of
Management and Budget (OMB)
economic assumptions for inflation.
These assumptions incorporate the
Consumer Price Index for all Urban
Consumers (CPI–U). APHIS selected the
C–CPI–U as the basis for inflation
adjustments for AQI user fees because it
accounts for consumer substitution
taking place between CPI item
categories.23 Typically, the C–CPI–U
does not increase by as much as an
index that was based on fixed purchase
patterns, such as the CPI–U. APHIS
therefore determined that the C–CPI–U
would be fairer in fee setting for AQI
user fees than the CPI–U. The Bureau of
Labor Statistics has comprehensive
23 See supporting document ‘‘Projected Fees for
Agricultural Quarantine Inspections, FY2024–
2028.’’ See footnote 5 for instructions on how to
view this and other supporting documents on
Regulations.gov.

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information about the C–CPI–U on their
website.24
Third, the fee calculations in this
proposed rule would also be forwardlooking in that they would account for
costs not previously considered. We
now face new sanitary and
phytosanitary threats that require
APHIS and CBP to take on additional
safeguarding measures and activities not
previously accounted for in our
assessment of staffing needs. We have
been forced to commit resources to
cover high priority risks, at the cost of
necessary investments including
mission critical infrastructure, IT system
modernization, and methods

innovation. Emerging high-priority
program areas include the following:
• Additional inspection resources at
airports to mitigate ASF risk.
• Additional inspection resources at
international mail and express courier
establishments experiencing
eCommerce-driven trade growth.
• New seed sampling and testing
workload at ports of entry and plant
inspection stations.
• Expanding demand for treatmentmonitoring-related services, such as
monitoring the restacking of cargo in
overloaded cargo containers.
Both houses of Congress have
indicated interest in different aspects of

the AQI program and AQI user fees in
their respective reports that accompany
Agriculture Appropriations legislation.
The House of Representatives has
focused on AQI program resources
(personnel, facilities, etc.) and
funding.25 26 27 The Senate has focused
more on policy: Re-evaluating the perenclosure basis for the treatment
monitoring fee, and reevaluating the
exemption for certain small aircraft with
64 or fewer seats.28 29 30
As illustrated in tables 1 and 2 below,
even under current workload demands,
the AQI program is understaffed by
1,978 personnel.

TABLE 1—CBP STAFFING
Total FTEs as
of FY 2019

Additional
FTEs required

Total projected
FY 2028 FTE

CBP FTEs:
Air Passengers .....................................................................................................................
Commercial Aircraft ..............................................................................................................
Commercial Vessel ...............................................................................................................
Commercial Truck ................................................................................................................
Commercial Rail ...................................................................................................................
Cruise Vessel Passenger .....................................................................................................
Other (Non-Fee Areas) .........................................................................................................

1,324
819
356
155
33
22
362

341
438
247
258
74
6
70

1,665
1,257
603
413
107
28
432

Totals .............................................................................................................................

3,071

1,434

4,505

Total FTEs as
of FY 2019

Additional
FTEs required

Total projected
FY 2028 FTE

APHIS FTEs:
Commercial Aircraft ..............................................................................................................
Commercial Vessel ...............................................................................................................
Air Passengers .....................................................................................................................
Commercial Truck ................................................................................................................
Treatments ............................................................................................................................
Commercial Rail ...................................................................................................................
Cruise Vessel Passenger .....................................................................................................
Other (AQI Non-Fee Areas) .................................................................................................

392
208
193
153
57
34
6
43

200
91
93
62
55
14
4
25

592
299
286
215
112
48
10
68

Totals .............................................................................................................................

1,086

544

1,630

Pathway/conveyance

TABLE 2—APHIS STAFFING

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Pathway/conveyance

The AQI program would need to
spend an estimated additional $331
million per year to fully staff at the level
required to meet current workload.
Because the existing ABC Model does
not factor in the additional cost to
increase staffing to meet this workload
demand, we do not currently have the
means to recover those costs. Under this
proposed rule, these costs would be
factored into our cost model and fee
calculations.

From an operational perspective,
there is a limit to the number of
frontline personnel the AQI program
can feasibly recruit, hire, and train
within 1 year. The current vacancy rate
for APHIS agriculture specialist
positions is 13.2 percent, and for CBP
positions it is 3.14 percent. The
proposed fee schedule covers a 5-year
period during which we implement the
fee changes incrementally to account for
the fact that it will take us 5 years to

achieve full staffing and incorporates
the projected inflation adjustment
mentioned above. This phased approach
tightly links fees to actual costs rather
than charging for unrealized full staffing
up front.
The proposed rule would also account
for capital planning costs not currently
factored into the existing ABC Model. In
developing the fees for this proposed
rule, we would treat capital planning as
a recurring cost category and build it

24 https://www.bls.gov/cpi/additional-resources/
chained-cpi.htm.
25 https://www.congress.gov/116/crpt/hrpt446/
CRPT-116hrpt446.pdf.
26 https://www.congress.gov/117/crpt/hrpt82/
CRPT-117hrpt82.pdf.

27 https://www.congress.gov/117/crpt/hrpt396/
CRPT-117hrpt396.pdf.
28 https://www.congress.gov/117/crpt/srpt34/
CRPT-117srpt34.pdf.
29 https://www.congress.gov/116/crpt/srpt110/
CRPT-116srpt110.pdf.

30 https://www.gpo.gov/fdsys/pkg/CRPT115srpt259/pdf/CRPT-115srpt259.pdf.

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into the model. We would also create a
separate, dedicated capital expenditure
account. This approach to capital
planning aligns with guidance for
Federal agencies from OMB in the
Capital Programming Guide, Circular A–
11 31 (2021), and the U.S. Government
Accountability Office (GAO) Executive
Guide (1998).32 Congress recognizes the
need for these types of investments. As
recently as 2021, the House Agriculture,
Rural Development, Food and Drug
Administration Committee reported that
‘‘The Committee recognizes that there
may be a need to update APHIS
physical facilities, staff capabilities, and
processes due to the increased volume
of agricultural imports’’ (H.R. 117–82).
By incorporating these planned costs,
APHIS can better adapt to meet
increased volumes of imports and
changes in phytosanitary risk, and
facilitate trade with enhanced
automation, improved levels of service
and compliance assistance.
For a full description of the model
and how we applied it when calculating
AQI costs and fees, please see the
documents in the supporting documents
folder on Regulations.gov, which we are
making available along with this
proposed rule.33 APHIS has included
APHIS and CBP input costs in the
model as well as comprehensive rollup
reports for both fee and non-fee outputs
as supplemental documents to this
rulemaking.
Court Ruling on Reserve Surcharge
On June 21, 2022, the United States
Court of Appeals for the District of
Columbia Circuit issued a decision in
Air Transport Association of America v.
United States Department of
Agriculture, 37 F.4th 667 (D.C. Cir.
2022). In that case, plaintiffs contested
aspects of the 2015 rulemaking which
set AQI user fees. The D.C. Circuit
primarily affirmed the 2015 rulemaking
in the face of plaintiffs’ challenges. The
court, however, found in favor of
plaintiffs on one count: That collection

of a reserve surcharge violates the FACT
Act of 1990, as amended. On September
15, 2022, upon remand, the district
court issued an amended final judgment
vacating the 2015 final rule only insofar
as it authorized the collection of a
surcharge in order to maintain a reserve
account.
The D.C. Circuit opinion in the Air
Transport Association of America case
has informed this rulemaking. First,
APHIS recalculated its AQI user fees so
that the fees would not include a reserve
surcharge component. On November 1,
2022, APHIS issued a Stakeholder
Registry notice 34 that administratively
lowered the fees effective on December
1, 2022, to comport with the Court’s
ruling, and on March 17, 2023, APHIS
published a final administrative rule in
the Federal Register (88 FR 16371–
16372, Docket No. APHIS–2013–0021)
adjusting the four fees that were affected
by these recalculations: Those covering
inspection services for trucks making
individual crossings and using
transponders, for international air
passengers, and for international cruise
vessel passengers. Those adjusted fees
are listed under the heading ‘‘Current
Fees’’ in table 3 below, along with the
other fees that did not require
adjustment. Moreover, it is these fee
rates, rather than the rates as set forth
in the 2015 final rule, that served as the
baseline for APHIS’ calculations in the
supporting documents for this proposed
rule.
Second, there is no reserve
component in the fee rates in this
proposed rule. The fee rates in this
proposed rule are 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. 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 generalpurpose reserve to pay for these costs.
Third, historically, the reserve
surcharge helped to cover service costs
between the period of service delivery
and quarterly AQI user fee collections.
Under the current regulations, payments
are made on a quarterly basis into AQI
user fee accounts for commercial aircraft
and international airline and cruise
passengers, with monies not remitted to
APHIS until 1 month after the end of the
quarter in which they are collected.
Since the fiscal year fourth quarter fees
are not due, and therefore not received,
until after the fiscal year is over, we are
not able to use those funds to pay for
providing AQI services for those
activities in the fiscal year in which
they are earned. Without the reserve
surcharge, APHIS must shorten the time
frame between service delivery and fee
collection to avoid periods of
insufficient funding for program
operations. Also under the current
regulations, APHIS collects fees for
railroad cars 60 days after the close of
the month; APHIS proposes adjusting
this remittance schedule to be
consistent with the fees mentioned
above. These proposed changes are
reflected in the payment and billing
sections for these fee types and are
discussed individually below.
Proposed User Fee Amounts and
Justifications
Using the data and methodology
discussed above, we calculated the
proposed fees shown below in table 3.
We explain each fee service activity in
greater detail in the following
paragraphs. If these proposed fees
become effective, we would continue to
monitor the costs of AQI services and
our collections and would undertake
rulemaking to adjust the fees if we
determine we are not appropriately
recovering costs.

TABLE 3—PROPOSED FEES

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Proposed (in US$)
Fee service activity

Current

Commercial Vessel (per vessel arrival) .................

$825.00 ..........................

31 https://www.whitehouse.gov/wp-content/
uploads/2018/06/a11.pdf.
32 Executive Guide: Leading Practices in Capital
Decision-Making (Superseded by AIMD–99–32)
U.S. GAO.
33 See supporting documents ‘‘AQI User Fee Input
Costs and Cost Allocation Summary’’ and the data
files ending in ‘‘. . . Rollup Report.’’ The AQI User
Fee Input Costs and Cost Allocation Summary can
be viewed on Regulations.gov. See footnote 5 for

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January 1,
2024

October 1,
2024

October 1,
2025

October 1,
2026

October 1,
2027

3,219.29

3,302.23

3,386.20

3,471.18

3,557.18

instructions on how to view the supporting
documents on Regulations.gov. Due to the size of
the files, the rollup reports are available on the
APHIS website at https://www.aphis.usda.gov/
aphis/ourfocus/business-services/aqi-user-fees/aqifee-types/aqi-user-fee-reports. The rollup reports
must be downloaded before viewing.
34 https://www.aphis.usda.gov/aphis/newsroom/
stakeholder-info/sa_by_date/sa-2022/aqi-user-feesresponse.

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35 Commercial Truck (per truck arrival) fees have
been rounded down to the next $0.05 (five-cent)
increment to facilitate operations at the border. This
rounding does not impact calculation of the
transponder fee.
36 One annual payment for unlimited crossings
within a calendar year.

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TABLE 3—PROPOSED FEES—Continued
Proposed (in US$)
Fee service activity

Current

Commercial Truck (per truck arrival) 35 .................
Commercial Truck (Transponder) 36 ......................
Commercial Rail (per railroad car arrival) .............
Commercial Aircraft (per aircraft arrival) ...............
Air Passenger (per passenger arrival) ...................
Cruise Vessel Passenger (per passenger arrival)
Treatments (per hour) ............................................

7.29 ................................
291.60 ............................
2.00 ................................
225.00 ............................
3.83 ................................
1.68 ................................
237.00 (per treatment) ..

In the sections that follow, we
summarize the regulatory changes we
propose. Where we address specific AQI
activities, we generally describe the
relevant activities, state the current fee,
state the new fee, and explain the basis
for the new fee. The intent of the
proposed provisions is to bring the AQI
program closer to full cost recovery, and
more accurately assign costs to different
user classes as required under the FACT
Act of 1990, as amended.
Proposed Regulatory Changes

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Revisions to Regulatory Definitions
In this proposed rule, we would
revise some existing definitions and add
some new ones to § 354.3(a).
The regulations currently define
commercial railroad car as a railroad car
used or capable of being used for
transporting property for compensation
or hire. We propose to revise the
definition to read as any carrying
vehicle, measured from coupler to
coupler and designed to operate on
railroad tracks, other than a locomotive
or a caboose. This proposed revision
would align APHIS’ definition with that
of CBP’s in 19 CFR 24.22(d). This
alignment is necessary because CBP is
the responsible party for auditing fee
remittances; therefore, we believe it is
also appropriate to align our definition
with CBP’s definition for consistency of
application of the regulations. Aligning
our regulatory definitions with CBP’s
regulatory definitions simplifies
understanding in the port environment
for stakeholders and enhances
operations between the two agencies,
such as conducting audits.
The existing regulations in § 354.3(a)
define commercial truck as a selfpropelled vehicle, designed and used
for transporting property for
compensation or hire and that empty
trucks and truck cabs without trailers
fitting this description are included. We
are proposing to define the term as any
self-propelled vehicle, including an
empty vehicle or a truck cab without a
trailer, which is designed and used for

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January 1,
2024

October 1,
2024

October 1,
2025

October 1,
2026

October 1,
2027

11.40
686.40
5.81
288.41
4.29
1.20
232.97

12.40
746.40
6.51
309.00
4.44
1.25
253.19

13.45
808.20
7.23
330.07
4.60
1.29
273.90

14.50
870.60
7.97
351.64
4.76
1.34
295.12

15.55
935.40
8.72
373.68
4.93
1.39
316.83

the transportation of commercial
merchandise or for the transportation of
non-commercial merchandise on a forhire basis. The proposed revision to the
definition would align it with the
definition in the CBP regulations in 19
CFR 24.22(c)(1). CBP collects the
commercial truck fee on behalf of
APHIS; therefore, we believe it is also
appropriate to align our definition with
theirs for consistency of application of
the regulations.
The existing regulations define
Customs as the Bureau of Customs and
Border Protection, U.S. Department of
Homeland Security. We propose to
replace that definition with a definition
for Customs and Border Protection
(CBP), which would be defined as U.S.
Customs and Border Protection, U.S.
Department of Homeland Security. This
proposed change reflects current usage.
We propose to add a definition of
passenger to read ‘‘a natural person for
whom transportation is provided,
including infants, whether a separate
ticket or travel document is issued for
the infant or toddler, or the infant or
toddler occupies a seat, or the infant or
toddler is held or carried by another
passenger.’’ This proposed definition
would clarify that APHIS’
understanding of what constitutes a
passenger aligns with that of CBP in
paragraph (g)(1)(v) of 19 CFR 24.22.
We are proposing to add definitions of
reconditioning and restacking. We
would define reconditioning as the
removal or alteration of packaging
associated with commercial cargo. We
would define restacking as the
redistribution of commercial cargo
within or removal from a shipping
container or other conveyance. Both of
these are activities that we monitor in
connection with AQI treatment services.
As explained later in this document, we
have not been charging for these
services, but under this proposed rule,
we would begin doing so.
Commercial Vessels
Pursuant to the current regulations in
§ 354.3(b), the AQI program inspects,

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with some exceptions that are discussed
below, commercial vessels of 100 net
tons or more arriving at ports of entry
into the customs territory of the United
States. Inspecting commercial maritime
vessels involves the following activities:
Reviewing manifests and
documentation accompanying incoming
cargo; determining entry status;
targeting higher-risk cargo for inspection
or clearance; inspecting cargo, cargo
containers, wood packaging material,
and packing materials for plant pests
and contaminants; and determining
regulatory compliance. In the maritime
cargo environment, the AQI program
also: Inspects the vessel’s stores;
inspects vessels for contaminants;
identifies pests and invasive species
found during inspection; monitors the
storage and removal of regulated
international garbage from the vessel to
ensure consistency with all regulatory
requirements; and safeguards shipments
pending Plant Protection and
Quarantine (PPQ) determination for
treatment or final disposition. The
current fee for these inspection services,
as listed in § 354.3(b)(1), is $825 per
arrival at a U.S. port.
Over 65 percent of the cargo that
arrives in the United States arrives by
commercial vessel. The current
revenues generated by the existing fee of
$825 per arrival fall well short of
recovering the costs we incur in
providing and administering the
associated inspection services. As
indicated in the RIA accompanying this
proposed rule, APHIS estimates a $130
million per year loss if the fee is not
adjusted in year one.
Under this proposed rule, the user fee
per arrival, as listed in § 354.3(b)(1),
would increase to $3,219.29 in FY 2024
(beginning in Quarter 2), $3,302.23 in
FY 2025, $3,386.20 in FY 2026,
$3,471.18 in FY 2027, and $3,557.18 in
FY 2028. See table 3 above for the
effective dates for each fee adjustment.
After FY 2028, the fee would remain at
FY 2028 levels for future years pending
additional rulemaking. We intend to
initiate a separate rulemaking to

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Federal Register / Vol. 88, No. 154 / Friday, August 11, 2023 / Proposed Rules
propose to allow for notice-based
adjustments to the fees.
The proposed new fees adjust for the
significant increase in ship cargo
capacity since our prior rulemaking,
which has increased the workload
required to inspect each vessel.
According to the U.S. Department of
Agriculture (USDA) Agricultural
Marketing Service,37 while the global
container vessel fleet expanded by just
6.7 percent from 2011 through 2020,
total cargo capacity of the global fleet
expanded by more than 63 percent. This
time period marshaled in the age of the
megaship (a ship with a capacity of
18,000 20-foot containers, also known as
20-foot equivalent units (TEUs)). These
megaships allowed more containers to
be moved per voyage than before,
increasing economies of scale and
reducing the number of ships serving
some trade lanes.38 The advent and
adoption of megaships disrupted the
industry and AQI revenue, as our
current fees are tied to the number of
ship arrivals, not the workload required
to inspect and clear them. As the
maritime industry shifted to greater
carrying capacity, fewer ships arrived
than APHIS predicted, but individual
ships took much longer to inspect. The
2014 proposed rule had assumed
average vessel arrivals of approximately
125,000 for FY 2014 through FY 2016,
but the actual vessel arrivals were only
around 54,000 for each of those 3 years.
Much larger ships displaced smaller
ships, which reduced costs to trade, but
increased the AQI program’s cost to
inspect each vessel and the cargo it
carried. The proposed adjusted fees,
which would be listed in § 354.3(b)(1),
reflect a change in the allocation of
certain costs within the model from
using the number of ship arrivals per
year to the workload (FTE hours) it
takes to inspect the average ship and its
cargo–a more accurate reflection of our
actual costs. Without the adjusted fees,
we would not have adequate resources
to provide the necessary level of AQI
services for inspection of commercial
vessels, potentially resulting in
bottlenecks in the clearance of maritime
cargo.
The proposed vessel fee in FY 2024 is
more than four times the current fee.
However, considering the greater cargo
capacity per ship (increased workload),
inflation since FY 2010–FY 2012 (prior
rule source data), and the need for
additional personnel to inspect and
clear cargo in a timely manner, APHIS
37 https://agtransport.usda.gov/stories/s/pjawnxa9.
38 https://agtransport.usda.gov/stories/s/OceanContainer-Fleet-Dashboard/pjaw-nxa9/.

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believes the data justify this increase.
Two main factors contributed to the
increase in the commercial vessel fee:
First, increase in workload per vessel;
second, the change from number of
arrivals to FTE hours as the allocation
criterion for certain costs. The 2015 rule
used cost and arrival data from FY 2010
through FY 2012. At that time, the
average container vessel arriving into
the United States carried 1,903 twentyfoot equivalent units (TEUs). This
rulemaking uses cost and arrival data
from FY 2017 through FY 2019; during
this period, the average arriving
container vessel now carried 2,710
TEUs, a 42.4 percent increase versus the
2015 rulemaking. This increased
workload per vessel increased the per
vessel costs to the AQI program. In
addition, in the 2015 rulemaking,
certain costs were allocated using
number of arrivals as the allocation
criterion for certain costs; the number of
vessel arrivals (approximately 108,000
per year in FY 2010—FY 2012) was
relatively small (0.03 percent) compared
to total arrival numbers (approximately
325 million arrivals per year between
FY 2010 and FY 2012 including all
conveyances and passenger). This
rulemaking uses frontline AQI FTE
hours—a more accurate measure for
assigning costs for non-equivalent
outputs (inspecting one passenger
versus inspecting a commercial vessel
and its cargo are not equivalent)—to
allocate these costs. At full
implementation, there will be
approximately 575,000 frontline AQI
FTE hours assigned to the commercial
vessel and maritime cargo functions out
of over 4 million total frontline AQI FTE
hours or over 14 percent. The change to
frontline AQI FTE hours changes the
cost allocation for certain costs to
commercial vessels from approximately
0.03 percent to over 14 percent.
The current version of § 354.3(b)(2)
exempts certain vessels from AQI user
fees. These include passenger vessels
that depart from and return to U.S. ports
without docking at any foreign ports, as
well as certain barges, tugboats, and
vessels used in government service.
Currently, paragraph (b)(2)(vi) states
that certain barges traveling solely
between the United States and Canada
meeting certain conditions are
exempted from AQI user fees. Barges
eligible for the exemption are those
barges: That travel solely between the
United States and Canada; that do not
carry cargo originating from countries
other than the United States or Canada;
that do not carry plants or plant
products; that do not carry animals or
animal products; and that do not carry

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54803

soil or quarry products from areas in
Canada listed in 7 CFR 319.77–3 as
being infested with gypsy moth. Based
on the pathway analysis that we
conducted, we are proposing to
eliminate this exemption. As discussed
in our pathway analysis, 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. APHIS
promulgated the exemption for barges
from Canada meeting certain conditions
in 2010 (75 FR 10634) stating: ‘‘we
[APHIS] do recognize that barges
traveling solely between the United
States and Canada are operating in a
lower-risk environment: A limited range
of waterways between and around the
U.S./Canada border such as the Puget
Sound and the Great Lakes, which
means that such barges present a much
lower risk of carrying cargo or
hitchhiking pests from a third country.’’
In APHIS’ recent analysis, we found that
nearly 1,500 barges arrive from Canada
annually requiring manifest review,
review of documents, and physical
inspection as necessary, which incur
costs on the part of the AQI program.
Moreover, part of the original premise
that barges from Canada travel in
limited waterways is no longer true,
with certain barges from Canada
arriving into 49 United States ports of
entry as far south as Charleston, South
Carolina on the east coast, and Oakland,
California on the west coast. For
additional information, please see the
document titled ‘‘Pathway Analysis for
Barges from Canada,’’ which we are
making available along with this
proposed rule.39 Because barges from
Canada do not pose less of a
phytosanitary risk than those other
vessel types, the proposed rule would
eliminate the exemption for barges. To
be clear, the AQI program does
currently conduct inspections of barges
arriving from Canada and the cargo they
carry, and therefore incurs costs to the
program. Removal of the exemption
allows the AQI program to recover these
barge-related costs.
Finally, the commercial vessel fee
would also not apply to commercial
cruise (passenger) vessels that carry
39 See footnote 5 for instructions on how to view
this and other supporting documents on
Regulations.gov.

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passengers paying the international
passenger fees under paragraph (f) of
§ 354.3 because the cost of inspecting
the entirety of the vessel is included in
the international cruise passenger fee,
and cruise vessels almost never carry
commercial cargo. That broad
exemption would replace the existing
limited exemption in paragraph (b)(2)(i)
of § 354.3 for certain foreign passenger
vessels. In this respect, the treatment of
commercial vessels is distinct from that
of international aircraft carrying
passengers, which are not exempt from
the commercial aircraft user fee. It is
routine for commercial aircraft to carry
passengers (and associated baggage) and
cargo, but cruise vessels almost never
carry commercial cargo.

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Commercial Trucks
We inspect commercial trucks at land
ports in the customs territory of the
United States arriving from Mexico and
Canada. Inspecting commercial trucks
involves the following activities:
Reviewing manifests and
documentation accompanying incoming
cargo; determining entry status;
targeting higher risk cargo for inspection
or clearance; inspecting cargo, cargo
containers, wood packaging material,
and packing materials for plant pests
and contaminants; and determining
regulatory compliance. In the
commercial truck environment, the AQI
program also: Inspects trucks for
contaminants; identifies pests and
invasive species found during
inspection; ensures consistency with all
regulatory requirements; and safeguards
shipments pending PPQ determination
for treatment or final disposition.
AQI user fees for inspection of
commercial trucks entering the customs
territory of the United States are listed
in § 354.3(c)(1). The current operational
fee is $7.29 per truck arrival (see
footnote 35 for further elaboration), with
an option, under paragraph (c)(3), to
prepay an amount (currently $290.61)
40 times the single-arrival fee to obtain
a transponder that will cover all arrivals
of a commercial truck during a calendar
year.
For context regarding the transponder
option, there are only two fee classes
that allow for remittance of an annual
fee, commercial trucks and commercial
railroad cars. (As we discuss below, the
option for commercial railroad cars is
effectively unused and we are seeking
public comment on whether to
eliminate it.) In both instances the
means of conveyance are crossing land
borders using routes (whether roads or
rails) that are heavily traversed. This is
especially true of commercial trucks,

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where there are approximately 11
million crossings per year.
Currently, there is not infrastructure
in place at land borders to allow for
real-time fee collection (similar to
automated toll collection systems used
throughout the United States), although
that is a long-term goal. Accordingly,
annual remittance is used as an option
to reduce border congestion and to keep
border operations manageable.
We currently incentivize annual
payments by placing a cap on the
annual fee for truck crossings; crossings
beyond the cap are effectively free. This
incentivization makes sense because the
alternative, in which CBP personnel
must collect the commercial truck fee 11
million times annually, is operationally
untenable. However, if we were to make
this same practice broadly applicable
across modes, it would undermine full
cost recovery.
We are proposing 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 clarifies application of the fee.
Empty trucks and truck cabs need to be
inspected because they may pose a
phytosanitary risk due to hitchhiking
pests and contaminants from past
shipments.
Strictly following the 2023 FTE
model, the user fee per arrival, as listed
in proposed paragraph (c)(1), would
increase to $11.44 in FY 2024, $12.44 in
FY 2025, $13.47 in FY 2026, $14.51 in
FY 2027, and $15.59 in FY 2028;
however, at CBP’s request, we are
rounding these fees 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. Therefore, the
fees under proposed paragraph (c)(1)
would increase to $11.40 in FY 2024,
$12.40 in FY 2025, $13.45 in FY 2026,
$14.50 in FY 2027, and $15.55 in FY
2028. The corresponding prepaid
(transponder) user fees would be set at
an amount 60 times the unrounded fee
rates for each arrival, as discussed
further below, and would rise to
$686.40, $746.40, $808.20, $870.60, and
$935.40, respectively. As shown in the
RIA accompanying this proposed rule,
APHIS estimates an aggregate $67.5
million loss per year if the per-arrival
and prepaid user fees are not adjusted
in year one.

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In the past 10 years, agricultural cargo
arriving by truck has increased by 90.6
percent, from 21.7 billion kilograms to
41.32 billion kilograms. In addition,
APHIS conducted an analysis showing
that the volume of freight per truck has
increased from 7.6 tons per truck in
2010 (beginning of the 2015 final rule’s
source data) to 8.5 tons per truck in
2019 (end of this rulemaking’s source
data); moreover, this increase continues,
with the average arriving truck carrying
10.4 tons of freight in 2021.40 We must
increase staff on the truck pathway to
address this increase in volume.
Analysis of collections data crossreferenced with truck arrival data shows
a consistent average of 90 crossings per
transponder per year from 2013 through
2021. However, to incentivize use of
annual transponders, APHIS proposes to
set the AQI truck transponder fee at 60
times the per arrival fee, an increase
from 40 times the per arrival fee used
to calculate the current transponder fee.
This has no impact on CBP truck
transponder fees.
The proposed truck fee at full
implementation (FY 2028) is more than
double the current fee; however, the
volume of cargo per truck has increased
from an average of 7.6 tons per truck
(FY 2010–FY 2012) to over 8.5 tons per
truck (FY 2017–FY 2019). Considering
the increased cargo volume per truck,
increased agricultural risk per truck,
additional personnel to ensure more
expedient border clearance, and
inflation since the FY 2010–FY 2012
source data period for the 2015 final
rule, APHIS believes the data justify this
increase. Under the proposed rule, by
FY 2028, the associated prepaid
transponder fee will more than triple;
however, the average truck transponder
crosses the border more than 90 times
in a calendar year. To incentivize the
purchase of transponders, which
facilitate border-crossing procedures,
while limiting the impact of the fee
increase on trucking companies, APHIS
is proposing to set the truck transponder
fee multiple at 60 times the unrounded
per arrival fee. Again, APHIS believes
the underlying transponder usage data
justifies this increase.
We are proposing an additional
amendment to clarify that prepayments
for purchases of transponders may be
made at any time during a calendar
year. The proposed rule would not
provide, however, for prorating of the
prepayment cost or allowing credit for
individual crossings made prior to
40 See supporting documents: Changes in the
Carrying Capacity of Containerized Maritime and
Land Border Transport Over Time: A Brief
Analysis.

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prepayment, if the operator of the
commercial truck elects to prepay
during a calendar year. This proposed
change would better align our
prepayment requirements with those of
CBP.41 As noted earlier, provisions for
prepayment for truck transponders are
currently contained in paragraph (c)(3)
of the regulations. In those existing
regulations, paragraph (c)(2) is reserved.
In this proposed rule, the prepayment
requirements described above would be
moved to proposed (c)(2), and paragraph
(c)(3) would be eliminated.
Commercial Railroad Cars
The AQI program inspects
commercial railroad cars (cargo) arriving
at land ports in the customs territory of
the United States from Mexico and
Canada. Inspecting railroad cars
involves the following activities:
Reviewing manifests and
documentation accompanying incoming
cargo; determining entry status;
targeting higher risk cargo for inspection
or clearance; inspecting cargo, cargo
containers, wood packaging material,
and packing materials for plant pests
and contaminants; and determining
regulatory compliance. In the rail cargo
environment, the AQI program also:
Inspects railroad cars for contaminants;
identifies pests and invasive species
found during inspection; monitors the
storage and removal of regulated
international garbage from the railroad
car to ensure consistency with all
regulatory requirements; and safeguards
shipments pending PPQ determination
for treatment or final disposition.
Fees for inspection of loaded
commercial railroad cars arriving at
land ports in the United States are listed
in current § 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.
Under this proposed rule, the user fee
per arrival, as listed in proposed
paragraph (d)(1)(l), would increase to
$5.81 in FY 2024, $6.51 in FY 2025,
$7.23 in FY 2026, $7.97 in FY 2027, and
$8.72 in FY 2028. The corresponding
prepaid user fees, which would be set
at an amount 48 times the AQI user fee
for each arrival, would rise to $278.88,
$312.48, $347.04, $382.56, and $418.56,
respectively.
Based upon analysis of collections
and arrival data,42 the average railroad
41 https://dtops.cbp.dhs.gov/main/help/

HelpfulInfo2FAQs.jsp section ‘‘About Decals,
Transponders, and Single Crossing Fees’’.
42 See supporting document ‘‘Analysis of AQI
User Fees: Truck Transponder and Prepaid Railroad
Car Multiples Using Fee Collections and Arrival

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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. As shown in the RIA
accompanying this proposed rule,
APHIS estimates a $13.5 million loss
annually if the commercial railroad car
user fees are not adjusted in year one.
The commercial railroad car fee will
more than quadruple by full
implementation in FY 2028 from its
current level. The main reason for this
is what falls under the regulatory
definition of a railroad car [19 CFR
24.22(d)(1)] is now much larger than
what the current inspection fee is
designed to cover. The current fees are
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. Cargo in general
arriving into the United States by rail
has increased nearly 15 percent since
the FY 2010–FY 2012 period (source
data 2015 final rule). Moreover,
agricultural cargo arriving by rail has
increased over 20 percent since 2010,
from over 15 billion kilograms to over
18 billion kilograms in 2021. We must
increase staff on the rail pathway to
address these changes in trade on our
land borders (see Tables 1 and 2 above).
Considering the aforementioned
increase in rail cargo volume and the
steeper increase in agricultural rail
cargo volume, the necessary addition of
personnel to ensure more expedient
border clearance, and inflation since the
FY 2010–FY 2012 source data period for
the 2015 final rule, APHIS believes the
data justify this increase.
As noted above, the existing
regulations in § 354.3(d)(1) refer to AQI
fees for inspection of loaded commercial
railroad cars. In addition to the fee
changes, we are proposing to amend
§ 354.3(d)(1) to remove the references
therein to loaded cars. CBP inspects all
commercial railroad cars, loaded and
unloaded; however, APHIS does not
collect AQI user fees for unloaded rail
cars under the current regulations.
However, both loaded and unloaded
cars and rail-bound containers can
harbor hitchhiking pests, and can transit
through multiple countries with
disparate pest risk profiles in terms of
possible hitchhiking pests. For this
reason, both the exterior and interior of
Data’’. See footnote 5 for instructions on how to
view the supporting documents on Regulations.gov.
Please note that because our analysis reviews FY
2017–2019 data, which precedes the court opinion
referred to above, it assesses usage when the truck
crossing fee was $7.55, rather than the current
$7.29.

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unloaded railroad cars and unloaded
rail-bound containers need to be
inspected because they, too, may pose a
phytosanitary risk due to hitchhiking
pests and contaminants from past
shipments. In order to recover the costs
of conducting these inspections, we
propose to make unloaded railroad cars
subject to AQI user fees.
Current paragraph (d)(3) contains
prepayment requirements for a calendar
year for railroad companies choosing
that option. We are proposing to amend
that paragraph, as we did paragraph
(c)(2), to provide for purchases made
during a calendar year. The amendment
would better align the rule with
language in CBP regulations in 19 CFR
24.22. As is the case for commercial
trucks, no credit would be given
towards the annual prepayment for
single payer crossings made earlier in
the calendar year, nor would the annual
prepayment amount be prorated.
While the current regulations include
a prepaid option for commercial
railroad cars, very few railroad
companies use the prepay option. Based
on this, APHIS is considering
eliminating the prepaid option to
simplify the regulations. APHIS
originally developed the prepaid
railroad car option to reflect a similar
option available for railroad companies
paying CBP COBRA fees. Recent
consultation with CBP and discussions
with APHIS’ own Financial
Management Division reveal that in any
given year very few, if any, railroad
operators do actually exercise this
option. APHIS invites comments on the
possibility of eliminating the prepaid
railroad car option.
Statement, remittance, and
compliance requirements for AQI user
fees for commercial railroad cars are
located in current paragraphs (d)(4)
through (6) of § 354.3. Under current
paragraph (d)(4), the Association of
American Railroads (AAR) and the
National Railroad Passenger Corporation
(AMTRAK) must submit monthly
written statements by mail to APHIS
listing the number of loaded commercial
railroad cars entering the United States
during the relevant period, the number
of those cars pulled by each railroad
company and the total monthly AQI
user fee due from each railroad
company.
We would revise paragraph (d)(4) to
provide for submission of remittance
not only by AAR and AMTRAK, as is
the case in the current regulations, but
by individual railroad companies as
well. This proposed revision would
more closely align our requirements
pertaining to railroad car user fees with
those of CBP [19 CFR 24.22(d) et seq.].

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CBP cites: ‘‘The Association of
American Railroads (AAR), the National
Railroad Passenger Corporation
(AMTRAK), and any railroad company
preferring to act individually, must file
monthly statements. . . .’’ Current
APHIS regulations omit ‘‘any railroad
company preferring to act individually’’.
This revision corrects this oversight.
We are also proposing some updates
to statement, remittance, and
compliance procedures in paragraphs
(d)(4) through (6). We are proposing to
replace the words ‘‘statement’’ and
‘‘remittance’’ in the rule with the words
‘‘remittance worksheet’’ and
‘‘payments’’ to clarify what is required
in plain language. The document that
would be submitted along with a
payment would be the ‘‘remittance
worksheet’’ rather than a monthly
statement, which is the current practice.
The remittance worksheet would
capture the same data previously
submitted on the monthly statements
but is a standardized worksheet
produced by APHIS’ Financial
Management Division. Changing to the
remittance worksheet would
standardize the documentation we
receive from entities within a user class
as well as standardize documentation
across all user classes, which would
simplify APHIS recordkeeping and
payer compliance. For example, entities
currently submit this data in a variety of
formats. Some even submit more
information than is necessary. Having
the ability to complete a worksheet
would focus their efforts on only the
required information. This would also
make the process easier for APHIS,
because we would look at incoming data
on the same type of incoming document
each time rather than being required to
hunt through various entity formats to
find and record the information we
need. We are making the worksheet
available as a supporting document for
this proposed rule. We would also
remove outdated mailing addresses, and
provide a link (https://www.aphis.
usda.gov/aphis/ourfocus/planthealth/
ppq-program-overview/ppq-cbp-aqiuser-fees-contacts) to information on
submitting remittance worksheets, and
payments, both electronically and by
mail, and for entities submitting online,
provide an email address for
submission.
To make collections for railroad cars
consistent with the proposed changes to
international air passenger, commercial
aircraft, and international cruise
passenger fees, APHIS proposes
changing the remittance deadline for
railroad cars to 90 days after the close
of a calendar month. Under this
proposed rule, railroads would remit

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their payments to APHIS on a monthly
basis (12 times per year) which is the
same as the current requirement;
however, railroads would have 90 days
to reconcile their books for each month
versus the current 60-day period after
the close of the month. For example,
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. Regular and
predictable remittance of user fee
collections helps with the financial
management of the AQI account and
with trend prediction for future
operation planning. The proposed
changes to these paragraphs would both
clarify and streamline the procedures
and update them to improve APHIS
business practices.
Further, to increase accountability
and establish individual responsibility
for complying with our payment and
remittance worksheet requirements, we
would require that the AAR, AMTRAK,
and any railroad company acting
individually for making AQI user fee
payments designate an agent or
responsible person, who would have
that responsibility. We would also
specify the duties of that responsible
person in paragraph (d)(6), which we
would divide into two subparagraphs.
Proposed paragraph (d)(6)(i) would
contain the existing provisions of
paragraph (d)(6), without the outdated
addresses. Proposed paragraph (d)(6)(ii)
would state that 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.
Before such a transfer could take place,
the agent or responsible person would
first have to contact APHIS to initiate
the transfer. Once APHIS acknowledges
the transfer, the new agent or
responsible person would assume all
responsibilities for ensuring compliance
with the requirements of 7 CFR part
354. This proposed requirement would
ensure seamless continuity of
individual responsibility for compliance
in the event of personnel changes on the
part of a regulated party, and facilitates
APHIS’ ability to resolve issues quickly,
thereby improving efficiency and
customer service.
Commercial Aircraft
APHIS inspects international
commercial aircraft arriving at airports
in the customs territory of the United
States. These inspections cover

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commercial aircraft capable of carrying
cargo and passengers, regardless of
whether cargo or passengers are on a
particular flight. Inspecting commercial
aircraft involves the following activities:
Reviewing manifests and
documentation accompanying incoming
cargo; determining entry status;
targeting higher risk cargo for inspection
or clearance; inspecting cargo,
international mail, expedited courier
packages, cargo containers, wood
packaging material, and packing
materials for plant pests and
contaminants; and determining
regulatory compliance. In the
commercial aircraft environment, the
AQI program also: Inspects the aircraft
hold and exterior for contaminants and
pests; identifies pests and invasive
species found during inspection;
ensures consistency with all regulatory
requirements; and safeguards shipments
pending PPQ determination for
treatment or final disposition. As
discussed below, there is a separate
international air passenger fee, which
covers, among other things, inspection
of the aircraft passenger cabin.
Fees for inspection of commercial
aircraft are listed in § 354.3(e)(1). The
current fee is $225 per arrival. Under
this proposed rule, the user fee per
arrival, as listed in proposed paragraph
(e)(1), would increase to $288.41 in FY
2024, $309.00 in FY 2025, $330.07 in
FY 2026, $351.64 in FY 2027, and
$373.68 in FY 2028.
Commercial aircraft carry less than 1
percent by volume of commercial cargo
arriving in the United States. However,
commercial air cargo is high-risk, highly
perishable, and includes time-sensitive
express courier shipments, and it
accounts for an estimated 43 percent of
total AQI cargo inspection costs. These
costs are driven in part by the intensive
effort required to inspect numerous
small packages and highly perishable
commodities, which are more likely to
be transported via aircraft than by
another type of conveyance. As with
other conveyances and shipping
containers, the aircraft themselves pose
a significant risk from potential
hitchhiking pests. From 2014 to 2020,
the increase in agricultural cargo
imports coincided with a tripling in the
growth of worldwide mail and express
courier shipment volumes, growing
from 43 billion to 131 billion parcels—
a 27 percent year-on-year increase.
Industry analysts predict another
doubling in worldwide parcel volume
by 2026.43
43 https://www.statista.com/chart/10922/parcelshipping-volume-and-parcel-spend-in-selectedcountries/.

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The proposed adjusted fees would
fund full staffing to inspect these
aircraft and their cargo at airport
facilities throughout the country, at all
arrival times. The proposed aircraft fee
for FY 2028 is approximately 1.6 times
the current fee. This cost increase under
the terms of the proposed rule reflects
the additional staffing to meet our
current and anticipated needs in the air
cargo environment. The wide
geographic range (over 320 airport
facilities throughout the United States
receive foreign cargo), stakeholders’
need for rapid processing times, and
around-the-clock service requests make
servicing the air cargo environment one
of the most demanding AQI functions.
When coupled with inflation since the
FY 2010–FY 2012 source data period for
the 2015 final rule, APHIS believes the
data justify this increase.
In addition to the proposed fee
changes, we are proposing to remove
paragraph (e)(2)(iv), which exempts
from AQI user fees certain passenger
aircraft with 64 or fewer seats. As noted
above, the pathway analysis we
conducted demonstrates that this
exemption is no longer justified. Results
of the pathway analysis indicated that
aircraft with 64 or fewer seats had many
opportunities for exposure to hitchhiker
pests, as well as many opportunities to
expose pests to a large variety of
environments in the United States.
Because of the high number of flights
and flight routes by aircraft with 64 or
fewer seats, relative to those with 65
seats and above, and given the similar
numbers in origins and destinations
between the two types of aircraft, we
concluded that commercial passenger
aircraft with 64 or fewer seats serve as
a pathway for the introduction of
quarantine pests to the United States
and propose eliminating the
exemption.44
APHIS decided not to propose a new
tiered structure for the commercial
aircraft fee based upon aircraft size or
seat number. This is because, as noted
in the pathway analysis, the
phytosanitary risk posed by a particular
aircraft is based upon a variety of
factors, including 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 destination.
The number of seats in the aircraft
thus has little bearing on phytosanitary
risk as it pertains to the aircraft fee.
(Indeed, inspection of seats on an
aircraft is a cost component factored
44 See footnote 5 for instructions on how to view
this and other supporting documents on
Regulations.gov.

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into the international air passenger fee,
not the commercial aircraft fee.) There
is, moreover, not a single consideration
that differentiates aircraft into ‘‘high
risk’’ and ‘‘low risk’’ categories.
Moreover, a fee tiered to account for all
these factors would require excessive
administration to run properly and
become cost-prohibitive and
impracticable. Instead, APHIS is
proposing a single aircraft fee that is
based on the average cost to inspect and
clear commercial aircraft and their
cargo, regardless of the number of seats
on the plane. APHIS invites specific
comment on whether the aircraft fee
could be structured differently from our
proposed structure, as well as evidence
in support these alternate structures.
We are proposing to revise paragraphs
(e)(3) and (4), which pertain to
remittances and compliance for AQI
user fees for commercial aircraft, in a
manner corresponding with the
revisions to paragraphs (d)(4) through
(6), i.e., by changing the terminology to
refer to ‘‘remittance worksheets’’ and
‘‘payments’’ rather than ‘‘statements’’
and ‘‘remittances,’’ removing outdated
addresses, providing updated
information links and options for
making electronic payments and
submissions of remittance worksheets,
and adding requirements pertaining to
the air carrier’s agent or responsible
person for overseeing compliance.
These changes would parallel those in
paragraph (d) described above. We
would also remove the requirement
currently in paragraph (e)(3)(ii)(B),
which requires the person submitting
payment to provide his or her taxpayer
identification number (TIN). APHIS
collects the TIN for enforcement and
debt collection when the stakeholder
establishes a payment account with
APHIS; therefore, this personally
identifiable information is not necessary
for submission of individual
remittances. APHIS also proposes
removing current paragraphs (e)(3)(ii)(D)
and (e)(3)(ii)(E). APHIS no longer uses
ports of entry at which inspections
occurred or number of arrivals at each
port for fee collection purposes.
Proposed changes to paragraph (e)(3)
also include decreasing the period for
payment of the fees and submission of
remittance reports from quarterly to
monthly. Under this proposed rule,
airlines would remit their payments to
APHIS on a monthly basis (12 times per
year) versus the current quarterly basis
(four times per year). They would have
90 days to reconcile their books for each
month versus the current 31-day period
after the close of the quarter. For
example, remittance of fees collected in
January of a given year would occur at

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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.
The AQI account balance changes
daily as customers remit their user fees,
as the APHIS program obligates funds,
as refund requests are processed, as
account recoveries are received, as
funds are transferred to CBP, and as
other account adjustments are made. A
regular and predictable remittance of
user fee collections helps with the
financial management of the account
and trend prediction for future
operation planning. To illustrate, from
FY 2017 to FY 2019, commercial aircraft
collections averaged over 23 percent of
total collections, or nearly $188 million.
Also, from FY 2017 to FY 2019,
commercial aircraft passenger
collections averaged over 61 percent of
total collections, or nearly $486 million.
Collections from the air sector
(commercial aircraft and commercial air
passenger) are a combined annual
average of over 85 percent of total AQI
collections. Under this rule 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 FY2017
through FY2019. Because of the large
proportion of collections from the air
sector, the current quarterly remittance
schedule for airlines results in
significant fluctuations in the account
balance, making such financial
management and planning challenging
throughout the fiscal year. For example,
airlines remit large sums 1 month after
the close of each quarter, and APHIS
transfers funds to CBP every other
month. At certain times of the year, the
quarterly remittance schedule and bimonthly transfers lead to a low balance
in the account, which may lead to a
needed delay in transferring funds to
CBP or APHIS operations until
collections are received. During the
pandemic, this trend was mitigated by
appropriated supplemental funds. A
monthly remittance schedule would
smooth the revenue stream, which
would lead to a more regular and
predictable account balance. This, in
turn, would allow for better financial
management and trend predictions to
promote the program’s ability to achieve
its mission efficiently and effectively.
Finally, we note that, under 21 U.S.C.
136a(a)(3), APHIS has broad authority to
set remittance schedules as it deems fit.

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International Passengers Arriving at
Airports and Seaports
Millions of travelers arrive at U.S.
airports and seaports from international
destinations daily. Inspecting
international air passengers includes
pre-arrival analysis of incoming
passengers and screening arriving air
passengers for agricultural products by
the AQI Program; inspection of
passenger baggage using CBP agriculture
canines and specialized non-intrusive
inspection equipment; inspecting the
interior of the passenger cabin and
baggage compartments of the aircraft;
monitoring the storage and removal of
regulated international garbage from the
aircraft to ensure consistency with all
regulatory requirements; safeguarding
and appropriately disposing of any
seized or abandoned prohibited
agricultural products; and identifying
and mitigating pests found on
prohibited agricultural products or in
passenger cabins brought into the
country via international travel.
Inspecting a cruise vessel and its
passengers includes pre-arrival analysis
of incoming passengers; screening
arriving sea passengers for agricultural
products by CBP Agriculture Specialists
and CBP Officers; inspection of
passenger baggage using CBP agriculture
canines and specialized non-intrusive
inspection equipment; inspection of the
vessel itself to ensure that contaminants,
prohibited articles, or invasive pests are
not present; inspecting the ship’s stores
to ensure that prohibited items are not
present or are properly safeguarded; and
monitoring the storage and removal of
regulated international garbage from the
vessel to ensure consistency with all
existing regulatory requirements. The
costs of inspecting the cruise ships
themselves are covered by the sea
passenger fee because the entirety of a
cruise vessel is passenger-related.
APHIS added the sea passenger AQI
user fee in the 2015 final rule.
The current AQI user fee for
inspection of commercial air passengers
is $3.83 per arrival. Under this proposed
rule, the user fee per arrival, as listed in
proposed § 354.3(f)(1), would increase
to $4.29 in FY 2024, $4.44 in FY 2025,
$4.60 in FY 2026, $4.76 in FY 2027, and
$4.93 in FY 2028.
Over the past decade, air and sea
passenger volumes have each grown on
average by over 50 percent (air by 54.6
percent and cruise by 51.65 percent),
but the number of frontline employees
(inspectors) actually decreased over this
period. Looking specifically at frontline
employee workload, there were 62,000
passengers per frontline employee in
2010. By 2019 there were 98,000

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passengers per frontline employee, a 58
percent increase in workload per
employee. While we experienced a
decrease due to the COVID–19
pandemic, international passenger
volumes are projected to recover in 2024
and grow 3.5 percent annually, further
increasing frontline employee workload.
In a static cost and wage environment,
collections of passenger fees increase
with increasing passenger arrivals, and
increased collections would result in
additional funds for hiring additional
personnel and purchasing additional
equipment to cover workload; however,
underlying Federal employee wages and
equipment costs have increased while
the fee has remained static. For
example, from 2015 to 2023, a GS–12
Step 5 (typical CBP Agriculture
Specialist inspector) salary at two of the
largest airports, John F. Kennedy
International Airport in New York and
Los Angeles International Airport in
California, increased more than 22
percent, and equipment and other costs
as measured by inflation (CPI–U) have
increased over 28 percent from
December 2015 to April 2023 while the
fee itself remained static.
In addition to enabling us to recover
the costs of our current program
activities, the proposed fee change
would increase the presence of CBP AQI
canine teams from the current 189 AQI
canine units to a total of 281 AQI canine
units to improve the detection of
prohibited products that could harbor
ASF, which has become a disease of
particular concern due to recent
outbreaks in the western hemisphere, as
well as other sanitary and phytosanitary
risks in passenger baggage. Congress
authorized up to $220 million per year
for additional positions, but it did not
fund the authorization.45 APHIS
estimates a shortfall of $28.9 million per
year if the air passenger fee is not
adjusted.
The commercial cruise vessel
passenger fee is the only fee that will
decrease relative to the current fee. The
cruise ship passenger fee is currently
$1.68 per arrival. As listed in proposed
§ 354.3(f)(1), the fee would decrease to
$1.20 in FY 2024, $1.25 in FY 2025,
$1.29 in FY 2026, $1.34 in FY 2027, and
$1.39 in FY 2028. The change in the
cruise passenger fee owes mainly to the
change in allocation criteria from
number of inspection events
(passengers) to FTE hours. Between FY
2017 and FY 2019, there was an average
of 15.6 million cruise passenger arrivals
out of a total of 287.6 million total
arrivals (all commercial passengers,
45 https://www.govinfo.gov/content/pkg/CRPT116srpt94/html/CRPT-116srpt94.htm.

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pedestrians, commercial conveyances,
and privately owned vehicles) or 5.42
percent; however, 22 FTEs out of 3,071
total FTEs or 0.72 percent of CBP AQI
personnel inspected cruise passengers.
Using FTE hours as the allocation
criterion for certain costs resulted in
0.72 percent of those costs allocating to
cruise passenger clearance rather than
5.42 percent using number of passengers
(workload).
We have added several proposed
clarifications in paragraph (f) related to
applicability, payment, and handling of
international passenger user fees
collected and remitted for trips not
taken. In proposed paragraph (f)(1), we
have 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 their definition of
passenger. As noted above, we are also
proposing to add a definition of
passenger to help clarify these
requirements. In proposed changes to
paragraphs (f)(5) and (6), we have
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. As discussed above in
relation to paragraph (e), 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 versus the current 31-day
period after the close of the quarter. For
example, 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 are proposing 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)
would clarify that APHIS’ policy is 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

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AQI user fees in the original form of
payment to the purchaser for trips not
taken. Proposed paragraph (f)(5)(vi)
describes 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.46 In keeping with
other proposed changes to remittance
timeframes, the revised remittance
worksheet 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, using
the same procedure described in
§ 354.3(f)(5)(iv) of this proposed rule.
AQI Treatment Monitoring
AQI treatments are performed on
some agricultural goods as a condition
of entry, and others 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. The objective of these AQI
treatments is to ensure that agricultural
goods and commodities entering the
United States are free from viable plant
pests and noxious weeds that would
pose a risk to the health of U.S.
domestic agriculture and natural
resources. AQI treatment methods
include fumigation, cold treatment,
irradiation, and heat treatment. APHIS
activities related to the application of
AQI treatments include personnel
determining the appropriate treatment
schedule, monitoring the treatment to
ensure it takes place in the prescribed
manner, and determining whether the
treatment was successful. These AQI
services focus on ensuring the
effectiveness of a given treatment,
regardless of its methodology. While
AQI treatments are usually provided by
private entities who charge the importer
for their services, from time-to-time
APHIS will provide the treatment,
especially for propagative materials. We
also develop new methods of
treatments. These methods increase the
effectiveness of treating agricultural
goods and reduce the risk of dangerous
pests entering the United States.
The 2015 final rule established user
fees to cover the costs of these activities
as listed currently in § 354.3(h). Prior to
that rulemaking, these costs were
allocated to the conveyance fees;
46 https://www.aphis.usda.gov/mrpbs/userfees/
aqi-account-credit-req.xlsx.

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however, a U.S. Government
Accountability Office report 47
recommended that treatment monitoring
be made a stand-alone fee to improve
the efficiency of AQI user fees. In recent
years, the Senate has included language
in reports accompanying Agriculture
Appropriations legislation to reevaluate
assessing AQI treatment monitoring fees
on a per-enclosure basis.48 49 50
APHIS has reevaluated the perenclosure basis and is proposing an
hourly rate instead. We are proposing
this change for two reasons. First, the
work of treatment monitoring is clocked
in and clocked out by an employee
devoted solely to monitoring that
particular treatment, which results in
distinct ‘‘blocks’’ of treatment oversight.
This lends itself to an hourly rate
because there is an actual computation
of the amount of time worked on a
distinct unit without diversion; we can
say a specific employee oversaw a
specific treatment for 2 hours.
Conveyance and cargo inspection do
not lend themselves as readily to an
hourly rate. For example, in the
commercial vessel environment, cargo is
routinely offloaded into a joint holding
area, and inspected en masse, while a
separate team inspects the actual vessel.
Likewise, for commercial aircraft, one
employee may make rounds to inspect
the exterior of recently arrived aircraft
for hitchhiking insects while another
employee inspects offloaded cargo from
multiple aircraft in a holding area and
another employee inspects the cargo
hold. In those instances, CBP will
provide the number of vessels or aircraft
inspected, and the collective workforce
hours it took to inspect, but there is not
a distinct record of time worked on any
one vessel or aircraft, and disaggregating
the total time worked in order to arrive
at that figure is unfeasible. Instead, we
total the costs associated with providing
inspections annually, and divide by the
number of arrivals. This results in an
average amount worked, and the fee is
pegged against that average.
The second reason, which we discuss
below, is that there can be a significant
variance in the amount of time needed
to oversee a particular treatment. An intransit cold treatment may be verified in
less than 15 minutes, whereas some
fumigation treatments must be
47 https://www.gao.gov/products/gao-13-268.
48 https://www.congress.gov/117/crpt/srpt34/
CRPT-117srpt34.pdf.
49 https://www.congress.gov/116/crpt/srpt110/
CRPT-116srpt110.pdf.
50 APHIS is exploring several options for AQI user
fees after FY2028 including a new rulemaking to
adjust the fee schedule and a rule implementing a
notice-based process for inflation adjustments for
those periods between fee adjustment rulemakings.

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54809

administered over multiple days. These
differing requirements for treatment
oversight lead us to believe that an
hourly treatment fee would help ensure
that parties are treated equitably when
assessing treatment monitoring fees.
Under the current regulations in
paragraph (h)(1), treatment monitoring
fees are assessed on a per-treatment
basis, e.g., per fumigation, cold
treatment, etc. For example, a
fumigation conducted under a single
tarp is a single treatment, regardless of
the volume under the tarp or the
number of consignments subjected to
the treatment under the tarp at one time,
and it is subject to one treatment
monitoring fee. If, however, a single
consignment is split into multiple
separate enclosures due to volume,
treatment monitoring fees will be
assessed for the treatments conducted in
each enclosure, even if those treatments
occurred simultaneously and a single
Plant Health Safeguarding Specialist
(PHSS) monitored them. In some cases,
therefore, a per treatment approach may
not accurately account for the time and
effort required to perform these
treatment monitoring services.
Additionally, the per-treatment
approach lacks flexibility. Trade needs
drive treatment activities, and these
needs are not the same at all ports of
entry. For example, in the northeast,
trade primarily consists of large
volumes of single commodity cargo,
which has led to large scale treatment
enclosures and fewer monitoring events
(and thus fewer occurrences of the fee).
In contrast, South Florida ports-of-entry
have more cargo diversity, resulting in
small-scale treatment enclosures and
more monitoring events (and thus more
occurrences of the fee).
Since 2018, the Senate has requested
that APHIS evaluate alternatives to
assessing treatment monitoring fees on a
per-treatment basis: The Senate
Committee on Appropriations 51 noted
that assessing AQI treatment monitoring
fees on a per-enclosure or per-treatment
basis imposes disproportionate impacts
on industry and user groups at certain
key ports of entry, including ports along
the southeast United States. The Senate
Committee on Appropriations
encouraged USDA to continue
conducting a study that specifically
outlines the actual costs of treatments,
examines the disproportionate impact
the fee has on airports and seaports in
different regions of the United States,
51 2018: https://www.govinfo.gov/content/pkg/
CRPT-115srpt259/pdf/CRPT-115srpt259.pdf. 2019:
https://www.congress.gov/116/crpt/srpt110/CRPT116srpt110.pdf. 2021: https://www.congress.gov/
117/crpt/srpt34/CRPT-117srpt34.pdf.

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and evaluates alternative and equitable
funding mechanisms.
APHIS has holistically evaluated
issues associated with treatment
monitoring. First, we have determined
that there are often significant
differences in the amount of time and
workload necessary to monitor certain
treatments. For example, in-transit
container cold treatments require
considerably less time to monitor than
a tarpaulin-less container fumigation.
Second, we have determined that the
only difference in current actualized
program costs between treatments
monitored during regular business
hours and those performed on overtime
is the rate of pay to the PHSS(s)
conducting the treatment monitoring.
For example, APHIS assumes the
average treatment monitoring event is
conducted by a GS–11 step 5 (midcareer journeyman level). If one takes
the average GS–11 step 5 rate of pay
across all locality pay rates,52 weighted
by the number of Federal employees in
a given locality,53 in 2022 dollars, that
weighted average is $37.52 per hour.
Similarly, the average weighted
overtime rate for Monday through
Saturday and holidays is $45.21 per
hour and for Sundays $75.05 per hour.
The additional cost to the AQI program
for treatment monitoring during
overtime on Mondays through
Saturdays and holidays is $7.68 per
hour, and on Sundays that difference is
$37.52 per hour (numbers may appear
off due to rounding).54 These cost
differences have then been added to the
proposed base treatment monitoring
hourly rate, and then adjusted for
projected inflation. Tables 4 and 5 of
this document reflect these calculations.
Finally, APHIS has assessed the role
of the party responsible for paying the
user fee associated with treatment
monitoring. In cases in which a thirdparty treatment provider provides the
treatment, APHIS has determined that
the responsible party should be the
treatment provider. In cases in which
APHIS is the treatment provider, APHIS
has determined that the responsible
party should be the importer.
Based on the foregoing, the proposed
rule would restructure the treatment
monitoring fee to better address the
52 https://www.opm.gov/policy-data-oversight/
pay-leave/salaries-wages/2022/2022-generalschedule-pay-rates.xls.
53 https://www.opm.gov/policy-data-oversight/
data-analysis-documentation/federal-employmentreports/reports-publications/major-work-locationsof-the-executive-branch.pdf.
54 See supporting document ‘‘AQI Treatment
Monitoring User Fee: Change to an Hourly Rate, and
Incorporate Reimbursable Overtime.’’ See footnote
5 for instructions on how to view this and other
supporting documents on Regulations.gov/.

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concerns of stakeholders, increase
program flexibility, and more accurately
assign costs. Specifically, we would
revise § 354.3(h), which lists the
treatment monitoring fees and related
requirements, including those
pertaining to remittances, statements,
and collections, to change the structure
of the fees from a per-treatment basis to
an hourly basis and to update those
other requirements.
Change From a per-Treatment Basis to
an Hourly Basis
With treatments fees assessed on an
hourly rate (in quarter-hour increments,
rounded up to the next quarter-hour)
instead of per-treatment, the responsible
party requesting and receiving treatment
monitoring services would only be
charged for the total time the employee
spends monitoring the treatments. The
hourly rate (as opposed to the pertreatment rate) would more accurately
reflect the time spent and costs incurred
for any APHIS treatment monitoring
service and, therefore, would be fairer
and more transparent. The impact of
changing from a per-treatment basis to
an hourly basis on an individual
treatment provider will depend upon
several factors, including number of
simultaneous treatment monitoring
events and duration of treatments.
To illustrate the impact of the change
from per-treatment to hourly, consider
two common treatment types: In-transit
container cold treatments and tarp-less
container fumigations. The average intransit container cold treatment requires
less than 15 minutes of monitoring, but
the average tarp-less container
fumigation requires over 21⁄2 hours (2
hours and 30 minutes) of monitoring.
Under the current fee schedule, the
treatment monitoring fee for both of
those treatments during regular business
hours is $237, regardless of the amount
of time or effort spent monitoring a
treatment. Under the proposed hourly
scheme at full implementation (FY
2028, Table 4), the in-transit container
cold treatment would cost $79.21
(assumes 15 minutes; 0.25 hours ×
$316.83/hour), and the tarp-less
container fumigation would cost
$792.08 (assumes 21⁄2 hours; 2.5 hours
× $316.83/hour).
Additional benefits of our proposed
hourly rate structure include the
following:
• Multiple treatments could be
monitored by a single PPQ employee in
a given hour (per local labor
agreements), incentivizing efficient
operations;
• The fee could be implemented in
15-minute increments, incentivizing
treatment provider investments in

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automation of treatment application;
and
• Premium service rates would
simplify treatment monitoring services
provided on reimbursable overtime: One
premium rate for Monday through
Saturday and holidays, and a second
premium service rate for Sunday.
Applying the Teatment Monitoring Fee
to All Treatment Types and TreatmentRelated Activities
The range of treatment related
activities subject to the proposed fee
would include phytosanitary treatments
under 7 CFR part 305 and in the USDA
APHIS Treatment Manual,55 as well as
to the treatment-preparatory activities of
restacking and reconditioning, which
are discussed earlier in this document
under the heading ‘‘Definitions’’ and
below. The current regulations allow the
fee to be applied to all phytosanitary
treatments. However, as a matter of
current Agency practice, since the 2015
rulemaking, APHIS has only applied the
treatment monitoring fee to fumigations
and cold treatments, and we have not
been recovering the costs of monitoring
other treatment types. Moreover, we
have not been collecting fees for
monitoring activities such as restacking
and reconditioning. For a treatment to
be effective, the commodity must meet
certain conditions such as sufficient
space above, below, and between
commodity stacks for the movement of
air, as well as packaging which does not
interfere with the treatment. If these
conditions do not exist at the time of
arrival, APHIS must monitor and
safeguard restacking and reconditioning
procedures that will satisfy these
conditions and make it possible to treat
the commodity. The time necessary to
restack and recondition ranges from an
hour to multiple days depending upon
the condition of the commodity at the
time of arrival, the type of commodity,
the treatment to be performed, etc. The
practice of not collecting fees for
reconditioning and restacking has
prevented us from recovering any of the
costs to APHIS in monitoring these
activities. As noted earlier, we would
also add definitions of reconditioning
and restacking to § 354.3(a). We are
proposing to add new paragraphs
(h)(1)(ii)(A) through (D), which would
describe the activities for which the
treatment monitoring fees are assessed.
The proposed treatment monitoring
user fee rates, as listed in proposed
paragraph (h)(1)(i), are listed in table 4.
55 Treatment schedules will migrate to the
Agriculture Commodity Import Requirements
(ACIR) Database in the future: https://
www.aphis.usda.gov/aphis/resources/acir.

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The fees are assessed per employee, per
hour conducting the service.

TABLE 4—TREATMENT MONITORING FEES (HOURLY RATE)—REGULAR TIME
FY1/1/2024
FY2024

Beginning on

FY10/1/2024
FY2025

FY10/1/2025
FY2026

FY10/1/2026
FY2027

FY10/1/2027
FY2028

Treatment monitoring and related services performed during regular business hours
Regular Time Hourly Rate ...................................................
Quarter Hour Rate ...............................................................

Applying Overtime to Treatment
Monitoring Performed Outside of
Regular Business Hours
Proposed paragraph (h)(2) would
clarify that overtime rates, rather than
the regular hourly rates, would apply for
treatment monitoring activities
conducted outside of normal business

$232.97
58.24

$253.19
63.30

hours. The paragraph would further
state that the treatment services
overtime hourly rate would be applied
identically to reimbursable overtime
and that overtime services would incur
a minimum charge of 2 hours, unless
performed on the employee’s regular
tour of duty and performed in direct

$273.90
68.48

$295.12
73.78

$316.83
79.21

continuation of the regular tour of duty
or begun within an hour of the regular
tour of duty. Overtime hourly rates for
activities conducted on Mondays
through Saturdays and holidays and
Premium hourly rates for activities
conducted on Sundays would be listed
separately in a table in paragraph (h)(2).

TABLE 5—TREATMENT MONITORING FEES (HOURLY RATE) —OVERTIME
FY1/1/2024
FY2024

Beginning on

FY10/1/2024
FY2025

FY10/1/2025
FY2026

FY10/1/2026
FY2027

FY10/1/2027
FY2028

Treatment monitoring and related services performed outside of regular business hours Monday through Saturday and Holidays
Mon–Sat, Holiday Overtime Hourly Rate ............................

$240.89

$261.36

$282.32

$303.93

$326.04

Quarter Hour Rate ...............................................................

60.22

65.34

70.58

75.98

81.51

342.26
85.57

368.40
92.10

Treatment monitoring and related services performed on Sundays

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Sunday Premium Hourly Rate .............................................
Quarter Hour Rate ...............................................................

Changes to Treatment Monitoring Fee
Designation of Responsible Parties and
Remittance Procedures
Current paragraphs (h)(2), (3), (4), and
(i), contain provisions for collection of
treatment user fees, remittance and
statement procedures, payment
methods, and liability. The existing
regulations in (h)(2) and (3) specify that
private entities that provide AQI
treatment services to importers are
responsible for collecting the AQI
treatment user fee from the importer for
whom the service is provided and for
holding those fees separately in a trust
for the United States by the entity
collecting such fees. Paragraphs (h)(4)
and (i) contain provisions pertaining to
remittance and statement procedures
and payment methods that are outdated,
as discussed earlier in relation to
commercial railroad cars and
commercial aircraft fees. Paragraph (j)
lists hourly and overtime rates for
certain treatment monitoring services
pertaining to solid wood packing
material.
Since implementation of the
treatment fees, APHIS has received
feedback from stakeholders regarding

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68.07

294.34
73.58

challenges with the structure of the fee
collection and payment process. Some
stakeholders expressed the view that
because the Agency did not provide an
invoice for services delivered, tracking
APHIS-delivered services fell entirely
on the AQI treatment provider, which
added burden and cost. Another
concern was that the requirement to set
up a separate trust account for user fees
added cost and burden to business
operations compared to typical invoice
and billing practices. In addition, the
Agency had to develop procedures to
pursue compliance and enforcement
actions when funds were collected and
held in trust, compared to more typical,
and efficient, billing and debt collection
procedures.
We are therefore proposing a new
approach to collection, billing, and
payment, which we discuss in detail in
the paragraphs that follow. This
approach would reduce cost and burden
on treatment providers by reducing the
need to create new business procedures
to monitor, collect, and pay treatment
monitoring fees to APHIS, while
simplifying the Agency’s procedures to
address payment non-compliance.

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317.62
79.41

The existing regulations in paragraph
(h)(3)(i) state that in cases in which
APHIS is not providing the AQI
treatment and collecting the associated
fee, AQI user fees collected from
importers pursuant to paragraph (h)
shall be held in trust for the United
States by the person collecting such
fees, by any person holding such fees,
or by the person who is ultimately
responsible for remittance of such fees
to APHIS. We are proposing to clarify
responsibility for payment by revising
paragraphs (h)(3) and (4). For treatments
carried out by third party treatment
providers and monitored by APHIS,
APHIS would collect the fees from the
treatment providers either at the time of
service or as described below in the
discussion of the billing process. For
treatments conducted by APHIS, APHIS
would collect the AQI treatment fee at
the time the treatment is applied
directly from the person receiving the
services, which, in that case, would be
the importer or their agent. Because
APHIS would issue a bill to all service
providers who have credit accounts in
good standing, or would collect
payment at the time of service, service

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providers would no longer be required
to establish a trust fund account.
Proposed paragraph (h)(5) would
describe the billing process. User fees
for treatment monitoring would be due
at the time-of-service delivery, unless
the treatment provider has established
an acceptable credit history and opened
a customer account with APHIS, in
which case they can be billed by APHIS
for services provided. Proposed
paragraph (h)(6) would provide the
same updated link for payment
information provided in proposed
paragraphs (d) and (e).
The existing regulations in § 354.3 do
not specify consequences for late
payment or nonpayment of AQI
treatment monitoring user fees. We
propose to add new paragraphs (i)(1) to
(5) to explain the consequences of and
procedures for nonpayment or late
payment of treatment monitoring user
fees, including debt collection.56 57
Consequences for nonpayment or late
payment under proposed paragraph (i)
include denial of AQI services, seizure
and disposal of cargo, assessment of late
fees and fees for dishonored debt, and
reporting by APHIS of delinquent debt
to credit reporting agencies. Procedures
for debt collection, which would be
carried out by the USDA and the
Department of the Treasury on behalf of
the USDA, are contained in proposed
paragraph (i)(5).
Collectively, proposed paragraphs (h)
and (i) would reduce cost and burden
on treatment providers by reducing the
need to create new business procedures
to hold fees in trust, while codifying
and streamlining the Agency’s
procedures to address payment noncompliance. The changes would also
update addresses and provisions
pertaining to payment methods in a
manner consistent with the updates to
the corresponding requirements for
commercial railroad cars and aircraft.

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Technical Amendments
We are proposing to remove current
paragraph (j), which lists hourly and
overtime charges for certain treatment
monitoring services pertaining to solid
wood packing material. Prior to the
adoption of International Standards for
56 Current paragraph (g) in § 354.3 of the
regulations covers export certification user fees.
Current paragraph (i) in § 354.3 contains
requirements related to payment methods for those
export certification user fees only. This proposed
rule does not address any of those requirements. We
are proposing, however, to consolidate the export
certification user fee requirements presently found
in paragraph (i) and move them to in § 354.3(g)(6).
This proposed editorial change would make the
regulations clearer and easier to use.
57 This change will not affect export certification
user fees.

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Phytosanitary Measures (ISPM) 15 58 in
2002, APHIS had specific regulations in
7 CFR 319.40–5(g) and (h) regarding
solid wood packing material and
merchandise from the Peoples Republic
of China, including Hong Kong, with
§ 319.40–5(h) referring to the fees in
§ 354.3(j). Adoption of ISPM 15 made
§ 319.40–5(g) and (h) obsolete, and
APHIS removed them in 2005. Though
APHIS did not also remove § 354.3(j)
from the regulations at that time, it, too,
has become obsolete because there are
no other sections of APHIS’ regulations
pointing to or relying upon § 354.3(j).
Records Retention
To improve monitoring, compliance,
and enforcement of this regulation, we
are proposing to add a new paragraph
(j), which would contain retention
requirements for records related to AQI
user fees. Proposed paragraph (j)(1)
would provide that entities responsible
for collecting and paying the fees and
their agents would be responsible for
maintaining all records required under
§ 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. 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 fee
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 GAO 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.
Severability
Finally, we are proposing to add a
new § 354.3(k), ‘‘Severability,’’ to
address the possibility that this rule, or
58 https://www.fao.org/3/mb160e/mb160e.pdf.

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portions of this rule, may be challenged
in litigation. It is APHIS’ intent that the
individual sections of this 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.
Executive Orders 12866 and 13563, and
Regulatory Flexibility Act
This proposed rule has been
determined to be significant under
section 3(f)(1) of Executive Order 12866,
‘‘Regulatory Planning and Review,’’ 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 proposed rule. The
economic analysis provides a costbenefit analysis, as required by
Executive Orders 12866 and 13563,
‘‘Improving Regulation and Regulatory
Review,’’ 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 an
initial regulatory flexibility analysis that
examines the potential economic effects
of this proposed rule on small entities,
as required by the Regulatory Flexibility
Act. The economic analysis is
summarized below. Copies of the full
analysis are available by contacting the
person listed under FOR FURTHER
INFORMATION CONTACT or on the
Regulations.gov website (see ADDRESSES
above for instructions for accessing
Regulations.gov).
We do not have sufficient information
to certify that this proposed rule will
not have significant economic impact on
a substantial number of small entities.
We have therefore included an Initial
Regulatory Flexibility Analysis
exploring the impacts on small entities.
We invite comments on potential
effects. In particular, we are interested
in determining the number and kind of
small entities that may incur benefits or
costs from the implementation of this
proposed rule.
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

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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 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
insufficient collections to achieve full
cost recovery.
APHIS is proposing a number of
revisions to the regulations that govern
the oversight of phytosanitary
treatments, 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 proposed revisions
would incorporate adjustments to the
cost model that is used to calculate the
fees.
This proposed rule would 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.
This proposed rule also restructures
the treatment monitoring fee from a ‘‘per
treatment’’ basis to a three-tier, per
employee, hourly rate system; applies
the treatment monitoring fee to all
approved phytosanitary treatments;
incorporates associated actions, such as
monitoring restacking and

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reconditioning, into the fee; and
incorporates monitoring destructions
and other phytosanitary mitigation
measures, such as seed grinding and
steam cleaning, into the fee. The
proposed rule would also implement a
billing process for the treatment
monitoring fee and move responsibility
for paying the fee from the importer of
record to the party applying the
treatment.
This proposed rule would also update
remittance procedures to facilitate
timely submission of fees. Finally, we
have made editorial revisions
throughout the proposed rule in order to
clarify intent in the regulations.
The 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. The personnel and
support to carry out an effective import
and pest exclusion program begins
before and continues after the port-ofentry where inspections often take
place. APHIS uses an 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
proposed rule would benefit the public
by continuing to ensure that the fees
received from users for providing
necessary AQI services align with the

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expenditures associated with providing
those services.
AQI services protect American
agriculture and natural resources. 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 should
this proposed rule be finalized 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
help 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 if 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.59 The
benefits and costs, as well as the
annualized transfer payments are
summarized in table A.
59 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. https://
www.reginfo.gov/public/jsp/Utilities/circular-a-4_
regulatory-impact-analysis-a-primer.pdf.

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Federal Register / Vol. 88, No. 154 / Friday, August 11, 2023 / Proposed Rules
TABLE A—ACCOUNTING STATEMENT OF COSTS, BENEFITS, AND TRANSFERS ASSOCIATED WITH THE RULE
Benefits

Non-Quantified Benefits ...............................................................................................................................

The proposed rule would better align
AQI expenditures and revenues by
class. Transfer payments balance the
costs and benefits of the program.

Costs
Non-Quantified Costs ..................................................................................................................................

Realigned AQI user fees are intended
to cover the costs of providing AQI
services. User fees transfer the cost
of those services from the government to the users.

Transfers
Annualized Transfers by user

class 1 2

........................................................................................................

7% discount
rate

3% discount
rate

Air Passengers .....................................................................................................................................
Commercial Aircraft ..............................................................................................................................
Commercial Rail ...................................................................................................................................
Commercial Truck 3 ..............................................................................................................................
Commercial Vessel ...............................................................................................................................
Cruise Vessel Passenger .....................................................................................................................
Treatments ($/Hr.) ................................................................................................................................

$471,200,000
290,200,000
25,730,000
113,500,000
186,100,000
20,120,000
14,430,000

$472,500,000
291,700,000
25,920,000
114,100,000
186,400,000
20,170,000
14,520,000

Total 4 ............................................................................................................................................

1,121,280,000

1,125,310,000

1 Annualized

value of transfers from 2024 through 2028; discounted at 7 and 3 percent, 2022 dollars.
of user fee collections (transfers) based on individual fee levels for each year of the 5-year implementation schedule (see table B)
multiplied by an estimate of the activity level in each fee category. This activity level estimate is based on the average number of each category
of arrivals from FY 2017–2019, the 3 years for which clean data are available.
3 This estimate is based on truck arrivals from FY 2017–2019. To account for the change in both the fee level and transponder cap, the estimate uses a distribution of one million single payer crossings and 125,000 transponders.
4 Totals may not sum due to rounding.
2 Estimates

The proposed fee schedule would
better reflect the costs of AQI services
provided to commercial cargo vessels,

commercial trucks, commercial cargo
railroad cars, commercial aircraft, and
international air and sea passengers

arriving at U.S. ports; and it would more
accurately assign costs to treatment
monitoring activities (table B).

TABLE B—CURRENT AND PROPOSED AQI USER FEE RATES
[Dollars]
Proposed fees
Fee area

Current fee
2024

Air Passenger ..........................................
Commercial Aircraft .................................
Commercial Cargo Vessel .......................
Commercial Truck ....................................
Commercial Cargo Railroad Car .............
Cruise Vessel Passenger ........................
Treatment:
(per treatment) ..................................
(per hour) ..........................................

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2027

2028

4.29
288.41
3,219.29
11.40
5.81
1.20

4.44
309.00
3,302.23
12.40
6.51
1.25

4.60
330.07
3,386.20
13.45
7.23
1.29

4.76
351.64
3,471.18
14.50
7.97
1.34

4.93
373.68
3,557.18
15.55
8.72
1.39

237.00
........................

........................
232.97

........................
253.19

........................
273.90

........................
295.12

........................
316.83

The air passenger fee would increase
from $3.83 to $4.93 by 2028. The total
fee increase of $1.10 would be
approximately a 28.7 percent increase
from current fees, but only a 0.1 percent
increase in the average price of an
international round-trip airfare.
Limitations in the amount and nature of
data available to the agency make it
difficult to develop specific conclusions

20:52 Aug 10, 2023

2026

3.83
225.00
825.00
7.29
2.00
1.68

Air Passengers

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as to how small fee changes 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.
Commercial Aircraft
The commercial aircraft fee would
increase from $225 to $373.68 per
arrival by 2028. This increase of $148.68

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would be approximately a 66 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 66
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

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alone, the 2028 commercial aircraft fee
rate under this proposal would
represent 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 $148.68 by
2028, the commercial aircraft user fee
would be the equivalent to
approximately 5 minutes of operating
costs for aircraft.60 Limitations in the
amount and nature of data available to
the agency make it difficult to develop
specific conclusions as to how such a
fee change will affect international
arrivals of commercial aircraft overall.
However, the increase in the AQI
commercial aircraft fee is likely to have
a limited impact on aircraft operators.
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 proposed rule would
result in the removal of this exemption.
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
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
would only apply to international
arrivals of aircraft with fewer than 65
seats. Approximately 7 percent of the
flights of the top 5 small aircraft
operators, and less than 5 percent of the
60 Federal Aviation Administration. Economic
Values for Investment and Regulatory Decisions—
Chapter 4: Aircraft Operating Costs. March 2021
Update. Retrieved on June 8, 2022, from https://
www.faa.gov/sites/faa.gov/files/regulations_
policies/policy_guidance/benefit_cost/econ-valuesection-4-op-costs.pdf.

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flights of the top 10 operators, are
international arrivals. 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. We are
inviting the public to provide data
relevant to these and other questions
concerning the operation of commercial
aircraft with fewer than 65 seats arriving
internationally. We also invite public
comment on other matters related to the
removal of this exemption.
Commercial Cargo Vessel
The commercial cargo vessel fee
would increase from $825 to $3,557.18
by 2028. The proposed fee better
accounts for the level of effort it takes
to inspect the average ship and its cargo
and reflects the expanded capacity of
modern container ships. Even with the
commercial vessel fee increasing by 331
percent to $3,557.18 by 2028, the user
fee would still represent a fraction of the
value of goods being imported by vessel
generally (0.02 percent). The proposed
commercial vessel fee rate in 2028
dollars-per-kilogram for vessel cargo
generally would be less than $0.0006.
The proposed 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.
Limitations in the amount and nature of
data available to the agency make it
difficult to develop specific conclusions
as to how the proposed fee changes will
affect international arrivals of
commercial cargo vessels overall.
However, the proposed change to the
commercial vessel fee seems likely to
have a limited impact on the operations
of commercial vessels.
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 would be affected if the
exemption were removed. APHIS has
concluded that barges from Canada that
meet the user fee exemption do not pose
less of a phytosanitary risk than barges
travelling from other countries or other
vessel types travelling from Canada. At
the 2028 rate, the commercial cargo
vessel fee would be approximately

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$0.001 per kilogram (kg) imported by
barge. 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 businesses. We are
inviting the public to provide data
relevant to these and other questions
concerning the operation of currentlyexempt barges from Canada. We also
invite public comment on other matters
related to the removal of this exemption,
or on the proposed rule generally.
Commercial Truck
The commercial truck fee would
increase from $7.29 to $15.55 61 by
2028, an increase of $8.26 per truck
arrival. Between 2013 and 2019 imports
into the United States by truck
increased by 397 million kg. Even after
a 114 percent increase, the user fee of
$15.55 proposed in 2028 for a
commercial truck entering the U.S.
would be the equivalent of 0.034
percent of the average value of goods
imported by truck. The proposed fee in
2028 in dollars-per-kilogram for truck
cargo generally would be approximately
$0.0014. In addition, this user fee would
be the equivalent of the operating
expenditures of a truck transporting
goods about nine miles. Limitations in
the amount and nature of data available
to the agency make it difficult to
develop specific conclusions as to how
these proposed fee changes will affect
international arrivals of commercial
trucks overall. However, the impact of
this proposed fee on the operations of
commercial trucks seems likely to be
limited.
Commercial Cargo Railroad Car
The commercial cargo railroad car fee
would 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 cargo railroad car fee would
still be the equivalent of approximately
0.029 percent of the value of goods
being imported on by railroad car. The
61 $15.59 rounded down to the nearest $0.05 (fivecent) 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.

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proposed fee in 2028 in dollars-perkilogram for commercial railroad cars
generally would have been
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 proposed fee changes will affect
international commercial cargo railroad
arrivals overall. However, the proposed
change to this fee seems likely to have
a limited impact on commercial cargo
rail operations.
Cruise Vessel Passenger
The cruise vessel passenger fee would
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.

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Treatment Monitoring
APHIS monitors phytosanitary
treatments to ensure that they are
conducted as prescribed. Shifting the
treatment monitoring fee to an hourly
basis would reduce the cost of treatment
monitoring for many treatment
providers. Multiple treatments can often
be monitored by a single PPQ employee
in a given hour, and the proposed
hourly fee can be implemented in 15minute increments. The impact of
shifting to an hourly fee would vary
from user to user, as the cost would
depend on the amount of time spent
monitoring treatments rather than on
the number of treatment enclosures. It
is, however, likely that impacts from the
proposed changes would be lower under
an hourly fee than they would be under
the current per-treatment fee. Providers
of some treatment services are not
currently subject to the treatment
monitoring fee and would be impacted
by the proposed rule. Because we do not
have explicit data on those providers
affected by the proposed changes, we
cannot make specific conclusions as to
how the collection of this user fee will
affect individual businesses. We are
inviting the public to provide data
relevant to these and other questions
concerning treatment operations.
APHIS estimates the total annualized
cost of the paperwork and
recordkeeping associated with this
proposed rule to be $104,039. Reporting
and recordkeeping requirements
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discussed in the rule under the heading
‘‘Paperwork Reduction Act.’’
While the Small Business
Administration has set small-entity
standards for the transportation sectors,
the size data do not distinguish between
transportation firms that operate
internationally and those firms that only
operate within the United States. Most
businesses that would be affected by the
rule are likely to be small. This RIA and
initial regulatory flexibility analysis
addresses possible effects of the
proposed rule on small-entity
stakeholders and their operations.
We recognize we may not have all
relevant information concerning
economic impacts at this time.
Therefore, we invite the public to
comment on the proposed rule and
provide any additional relevant
information. We also invite public
comments on alternatives that may
achieve the objective of this proposed
rule.
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.
Executive Order 13175
This proposed 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 governmentto-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.
APHIS has determined that this
proposed rule, if finalized, does not
have substantial direct effects on one or
more Tribes; however, APHIS continues
to seek opportunities to engage Tribal
nations and their communities on new
rulemaking. Accordingly, on July 18,
2022, APHIS held an initial listening
session for Tribal nations regarding the
provisions of the rule. No comments or
concerns were received regarding that
listening session. However, should a

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Tribe request consultation, APHIS will
collaborate with the Office of Tribal
Relations to ensure meaningful
consultation occurs. APHIS is
committed to full compliance with the
provisions of Executive Order 13175.
Paperwork Reduction Act
In accordance with section 3507(d) of
the Paperwork Reduction Act of 1995
(44 U.S.C. 3501 et seq.), the information
collection or recordkeeping
requirements included in this proposed
rule have been submitted for approval to
the Office of Management and Budget
(OMB). Written comments and
recommendations for the proposed
information collection should be sent
within 60 days of publication of this
document to www.reginfo.gov/public/
do/PRAMain. Find this particular
information collection by selecting
‘‘Currently under Review—Open for
Public Comments’’ or by using the
search function. Please send a copy of
your comments to: (1) Docket No.
APHIS–2022–0023, Regulatory Analysis
and Development, PPD, APHIS, Station
3A–03.8, 4700 River Road Unit 118,
Riverdale, MD 20737–1238, and (2)
Clearance Officer, OCIO, USDA, room
404–W, 14th Street and Independence
Avenue SW, Washington, DC 20250. A
comment to OMB is best assured of
having its full effect if OMB receives it
within 30 days of publication of this
proposed rule.
The processes involving the
agricultural quarantine and inspection
user fees and changes proposed in this
document involve information
collection, reporting, and recordkeeping
requirements in the form of paper,
electronic submissions, and information
systems. In conjunction with the
proposed changes to provide for cost
recovery for services, we have
considered each proposed change and
their impact(s) on these burdens. These
changes concern adjusting fee amounts,
adjusting caps on certain prepaid fees,
removing exemptions, changing certain
fees from flat to hourly rates, updating
requirements for fee remittances and
statement, and providing electronic
payments and statement options.
User fee information collection
activities are reported in information
collection 0579–0055. This proposed
rule will add additional respondents to
activities related to preparation and
submission of monthly statement
submissions for commercial railroad
cars and commercial aircraft, and user
fees for international air and cruise
passengers. There is also one new
information collection activity that
formalizes new recordkeeping and
record retention requirements. The new

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recordkeeping burden is associated with
applications for credit accounts and
requests for services; collection of user
fees in connection with the arrival and
inspection of commercial vessels,
railroad cars, commercial aircraft,
trucks, and international air and cruise
passengers; collection of user fees for
conducting and monitoring treatments;
and issuing and use of electronic
transponders.
Changes prescribed in this proposed
rule may increase or decrease burden on
respondents and affect one or multiple
fee categories.
a. Commence Charging for Empty
Railroad Cars.
(1) We will start charging for empty
railroad cars. The changes in burdens
here would be two-fold: (a) We will
need to identify the burden involved
with existing companies paying for
loaded railroad cars to also identify how
many empty railroad cars they will now
be paying for and (b) possible burdens
involved with any railroad company
who is in the business of only moving
empty railroad cars.
(2) Our current burden assumption
includes 5 minutes per railroad
company to submit user fees for their
railroad cars. We assume if we
commence charging for empty railroad
cars, there would be an overall increase
in burden of 5 percent in that time will
be spent determining how many empty
railroad cars each of the current railroad
companies remitting the fees must
spend to identify how many empty cars
they would then be remitting for. A 5
percent increase in the 5-minute time
value is 0.25 minutes or 15 seconds.
(3) In addition, we assume there is
one railroad company whose business is
only moving empty railroad cars, and
that company would be required to start
paying user fees for their empty cars.
With railroad companies remitting fees
monthly, we assume this railroad
company would have the new burden of
remitting fees 12 times per year. These
assumptions on the impact on the
burdens of the Federal Government
commencing charging for empty
railroad cars increases the overall
estimated burden on the public by 2
hours.
b. Removal of the Exemption for
Barges. Currently barges are eligible for
exemption if they travel solely between
the United States and Canada; that do
not carry cargo originating from
countries other than the United States or
Canada; that do not carry plants or plant
products; that do not carry animals or
animal products; and that do not carry
soil or quarry products from areas in
Canada listed in 7 CFR 319.77–3 as
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discussed above, we are proposing to
eliminate this exemption. Department of
Transportation Statistics identify 76
barge companies operating between the
United States and Canada. We make the
assumption barge companies move once
a month, so the increase in burden is
912 occurrences. Our current burden
assumption includes less than 1 minute
per barge company to submit user fees
in addition to their U.S. Customs and
Border Protection fee. The overall
impact of this change would be an
increase of less than 1 hour.
c. Commercial Vessel Fee Exemption
for Commercial Cruise (Passenger)
Vessels That Carry Passengers Paying
the International Passenger Fees. The
commercial vessel fee would not apply
to commercial cruise (passenger) vessels
that carry passengers paying the
international passenger fees under
paragraph (f) of § 354.3, because the cost
of inspecting the entirety of the vessel
is included in the international cruise
passenger fee, and cruise vessels do not
generally carry commercial cargo. In
October 2022, we estimated there will
be 29,009 cruise vessels trips that would
be subject to paying the vessel fee over
a 6-year period. This yields about 4,834
cruise vessels trips per year. [29,009/6 =
4,834]. Applying an estimate that cruise
ships run 12 times a year, we obtain the
number of impacted commercial cruise
(passenger) vessels to be 403 per year.
[4,834/12 = 403] and the number of
paying cruise vessel companies to be 14.
Our current burden assumption
includes less than 1 minute per
commercial cruise (passenger) vessel
company to submit user fees in addition
to their U.S. Customs and Border
Protection fee. The overall impact of
this change would be a decrease of less
than 1 hour.
d. Commence Charging for Empty
Trucks and Truck Cabs. We are
proposing to add a sentence to
paragraph (c)(1) of § 354.3 stating that
the AQI user fee would apply to all
commercial trucks, regardless of what
they are carrying, including empty
trucks and truck cabs. Because many
truck haul freight in one direction
across the U.S. border, and because
there may be additional movements of
empty trucks and truck cabs, we
estimate there are 1,521,600 empty truck
and truck cab entries per year which
could have an increased burden of less
than 1 minute each. These entries are a
mix of both single payer entries and
annual pass owner entries. The overall
impact of this change would be an
increase of 1,268 respondent hours per
year.
e. Commercial Railroad Companies’
Use of Remittance Worksheets. As

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54817

discussed above, we are planning to use
remittance worksheets for the
respondents to submit along with
payments. This is designed to simplify
the data elements respondents report.
We assume this change will cut the time
it takes for 27 railroad companies to
remit their payments by a third. 27
commercial railroad companies
remitting 12 times a year is 324
submissions per year. We assume it
ordinarily takes about 5 minutes per
submission, so with a reduction of this
amount by one third, we estimate the
overall impact of this change would be
decrease of 9 respondent hours per year.
f. Commercial Railroad Companies’
Requirement to Complete Transfers of
Responsibility. Proposed paragraph
(d)(6)(ii) of § 354.3 would state that the
agent or other responsible person for a
payment remains the agent or
responsible person unless a transfer of
responsibility is approved by APHIS.
Before such a transfer could take place,
the agent or responsible person would
first have to contact APHIS to initiate
the transfer. Once APHIS approves the
transfer, the new agent or responsible
person would assume all
responsibilities for ensuring compliance
with the requirements of part 354. We
estimate 12 commercial railroad
companies may need to exert time and
effort to do so, which would create a
new burden for them. We estimate each
action will take 10 minutes leading to
an overall impact of this new
requirement to be an increase in two
respondent hours per year. We estimate
each action will take 10 minutes leading
to an overall impact of this new
requirement to be an increase in 2
respondent hours per year.
g. Removal of Aircraft Exemption
with 64 or Fewer Seats. The proposed
removal of paragraph (e)(2)(iv) of
§ 354.3, which exempts from AQI user
fees certain passenger aircraft with 64 or
fewer seats will create a new burden for
those aircraft. Of an estimated 331
airlines with arriving international
flights into the U.S. we estimate 19
percent of these airlines fall into this
exemption category or 63 airlines. [331
* 19% = 63] With airlines being
required to remit fees four times per
year, this leads to an estimated 252
possible new burden actions. Our
current burden assumption includes 5
minutes per submission, so the overall
impact of the removal of this exemption
on respondents would be an increase of
21 respondent hours per year.
h. Commercial Airlines’ Use of
Remittance Worksheets. As discussed
above, we are planning to use
remittance worksheets for the
respondents to submit along with

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payments. This is designed to simplify
the data elements respondents report.
We assume this change will cut the time
it takes for 331 airlines to remit their
payments by a third. 331 airlines
remitting 4 times a year is 1324
submissions per year. We assume it
ordinarily takes about 10 minutes per
airline submission, so with a reduction
of this amount by one third, we estimate
the overall impact of this change would
be decrease of 74 respondent hours per
year.
i. Change in Commercial Airlines’ Fee
Remittances to Monthly rather than
Quarterly. Proposed changes to
paragraph (e)(3) of § 354.3 include
decreasing the period for payment of the
fees and submission of remittance
reports from quarterly to monthly. This
would triple the current burden on
these respondents; however, it is
important to note burden (h) above will
also have an impact on commercial
airlines’ burden. Using an estimated 331
airlines × 3 (a tripling of their current
submission frequency) = 993 new
occurrences. These occurrences will
take 6.67 minutes [2⁄3 of the normal 10
minutes submission time assumption
used as a starting point for burden (h)]/
60 minutes—an overall impact of this
change to be an increase of 110
respondent hours per year.
j. Commercial Airlines to Make
Refunds of AQI International Airline
Passenger Fees to Ticket Purchasers
when Passengers Do Not Ultimately
Take Their Journey. The ticket issuing
entity would have to submit a revised
remittance worksheet showing the
number of passengers who traveled and
those passengers that did not ultimately
travel who received user fee
reimbursements. In keeping with other
proposed changes to remittance
timeframes, the revised remittance
worksheet would be completed and
filed for each month during which the
ticket issuing entity certifies that there
was an increase or decrease in the
number of passengers and AQI fees
collected, using the procedure described
in § 354.3(f)(5)(iv) of this proposed rule.
This represents an increase in
respondent burden hours. We estimate
this would affect one third of the 331
airlines. 331 airlines × 12 remittances
per year per airline = 3972 occurrences.
3972 occurrences/3 impacted = 1324
occurrences with increased burdens.
1324 occurrences with increased
burdens × 3 minutes/60 minutes per
hour = an estimated increase of 66
respondent burden hours per year.
k. Proposed Commencing of Charging
the Phytosanitary Treatment User Fees
Under 7 CFR part 305 and in the USDA,
APHIS Treatment Manual and

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Treatment Preparatory Activities of
Restacking and Reconditioning. We are
proposing to add new paragraphs
(h)(1)(ii)(A) through (D) to § 354.3,
which would describe the activities for
which the treatment monitoring fees are
assessed. Charging for these activities
will cause an increased burden for these
respondents. We estimate there will be
about 1,654 additional irradiation
treatments and 1,190 heat treatments.
1,654 + 1,190 = 2,844 new chargeable
treatments. 2,844 × an estimated 5
minutes per treatment = an estimated
increase of 237 respondent burden
hours per year.
l. New Billing Process for Treatment
Monitoring. Above we have proposed a
new billing process in paragraph (h)(5)
of § 354.3 which would describe the
billing process. User fees for treatment
monitoring would be due at the time-ofservice delivery, unless the treatment
provider has established an acceptable
credit history and opened a customer
account with APHIS, in which case they
can be billed by APHIS for services
provided. There are about 50 treatment
facilities of which we estimate about
half would want to be billed. One half
of 50 treatment facilities = 25 facilities
who would want to be billed. Timed
trials show the application for an
account takes approximately 8.4
minutes to complete. 25 × 8.4 minutes
= 3.5 hours new burden during the
initial year half of the treatment
facilities would decide to open
accounts. The assumptions made and
this approach are considered
reasonable.
m. Consequences for Late Payment or
Nonpayment of AQI Treatment
Monitoring User Fees. The existing
regulations in § 354.3 do not specify
consequences for late payment or
nonpayment of AQI treatment
monitoring user fees. To remedy that
omission, we propose to add new
paragraphs (i)(1) to (5) to § 354.3 to
explain the consequences of and
procedures for nonpayment or late
payment of treatment monitoring user
fees, including debt collection. We
estimate six treatment facilities will
incur an increased time burden of 20
minutes each for a total estimated
increase in respondent burden of 2
hours.
n. Reduction in the Need to Create
New Business Procedures to Hold Fees
in Trust. Above, we propose in
paragraphs (h) and (i) of § 354.3 to
reduce cost and burden on treatment
providers by reducing the need to create
new business procedures to hold fees in
trust, while codifying and streamlining
the Agency’s procedures to address
payment non-compliance. We estimate

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this will save 50 treatment facilities 4.75
hours per year for a total of 237
reduction in respondent burden hours
each year.
o. Records Retention Requirements.
To improve monitoring, compliance,
and enforcement of this regulation, we
are proposing to add a new paragraph (j)
to § 354.3, which would contain
retention requirements for records
related to AQI user fees. Proposed
paragraph (j)(1) would state that entities
responsible for collecting and paying
the fees and their agents would be
responsible for maintaining all records
required under § 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. 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 fee
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. We
estimate there to be approximately 500
entities affected by this requirement. At
1 minute per entity for records
retention, we estimate the increase in
respondent burden to be about 8 hours.
In accordance with section 3507(d) of
the Paperwork Reduction Act of 1995
(44 U.S.C. 3501 et seq.), the new
activities and the additional burden
associated with this proposed rule have
been submitted to OMB as a new
information collection for approval. If a
final rule is published, this information
collection request will be scheduled for
merger into 0579–0055.
We are soliciting comments from the
public (as well as affected agencies)
concerning our proposed reporting and
recordkeeping requirements. These
comments will help us:
(1) Evaluate whether the proposed
information collection is necessary for
the proper performance of our agency’s
functions, including whether the
information will have practical utility;
(2) Evaluate the accuracy of our
estimate of the burden of the proposed

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information collection, including the
validity of the methodology and
assumptions used;
(3) Enhance the quality, utility, and
clarity of the information to be
collected; and
(4) Minimize the burden of the
information collection on those who are
to respond (such as through the use of
appropriate automated, electronic,
mechanical, or other technological
collection techniques or other forms of
information technology; e.g., permitting
electronic submission of responses).
Estimate of burden: The public
burden for this collection of information
is estimated to average 0.001 hours per
response.
Respondents: Individuals and private
and commercial importers or exporters
of agricultural plants and animals or
their products.
Estimated annual number of
respondents: 35,374.
Estimated annual number of
responses per respondent: 43.
Estimated annual number of
responses: 1,535,575.
Estimated total annual burden on
respondents: 2,172 hours. (Due to
averaging, the total annual burden hours
may not equal the product of the annual
number of responses multiplied by the
reporting burden per response.)
A copy of the information collection
may be viewed on the Regulations.gov
website or in our reading room. (A link
to Regulations.gov and information on
the location and hours of the reading
room are provided under the heading
ADDRESSES at the beginning of this
proposed rule.) Copies can also be
obtained from Mr. Joseph Moxey,
APHIS’ Paperwork Reduction Act
Coordinator, at (301) 851–2483. APHIS
will respond to any information
collection review-related comments in
the final rule. All comments will also
become a matter of public record.
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. APHIS is working with U.S.
Customs and Border Protection to
explore options for further improving,
streamlining, and automating user fee
payment in the field, especially trucks
and maritime ‘‘real time’’ payment
procedures, and transponders. For
information pertinent to E-Government
Act compliance related to this proposed
rule, please contact Mr. Joseph Moxey,

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APHIS’ Paperwork Reduction Act
Coordinator, at (301) 851–2483.
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, APHIS is proposing to
amend 7 CFR part 354 as follows:
PART 354—OVERTIME SERVICES
RELATING TO IMPORTS AND
EXPORTS; AND USER FEES
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.
■

2. Revise § 354.3 to read as follows:

§ 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, in the customs
territory of the United States or at any
place serviced by any such port of entry.
Barge. A non-self-propelled
commercial vessel that transports cargo
that is not contained in shipping
containers. This does not include
integrated tug barge combinations.
Calendar year. The period from
January 1 to December 31, inclusive, of
any particular year.
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.

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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.).
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.
Reconditioning. The removal or
alteration of packaging associated with
commercial cargo.
Restacking. The redistribution of
commercial cargo within or removal
from a shipping container or other
conveyance.
(b) Fee for inspection of commercial
vessels of 100 net tons or more. (1)
Except as provided in paragraph (b)(2)
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.

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(ii) Any vessel which, at the time of
TABLE 1 TO PARAGRAPH (b)(1)—FEE
FOR INSPECTION OF COMMERCIAL arrival, is being used solely as a tugboat;
VESSELS OF 100 NET TONS OR
(iii) Vessels used exclusively in the
governmental service of the United
MORE
States or a foreign government,
including any agency or political
subdivision of the United States or a
Beginning January 1, 2024 ........
$3,219.29 foreign government, so long as the
October 1, 2024 ..........................
3,302.23
October 1, 2025 ..........................
3,386.20 vessel is not carrying persons or
October 1, 2026 ..........................
3,471.18 merchandise for commercial purposes;
October 1, 2027 ..........................
3,557.18
(iv) Vessels arriving in distress or to
take on fuel, sea stores, or ship’s stores;
(2) The following categories of
(v) Tugboats towing vessels on the
commercial vessels are exempt from
Great Lakes; and
paying an AQI user fee:
(i) Commercial cruise vessels carrying
(vi) Vessels returning to the United
passengers paying fees under paragraph States after traveling to Canada solely to
(f) of this section;
take on fuel.
Effective date

Amount

(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 2).

TABLE 2 TO PARAGRAPH (c)(1)—FEE FOR INSPECTION OF COMMERCIAL TRUCKS
Amount
(per arrival) 1

Effective date
Beginning January 1, 2024 ......................................................................................................................................
October 1, 2024 .......................................................................................................................................................
October 1, 2025 .......................................................................................................................................................
October 1, 2026 .......................................................................................................................................................
October 1, 2027 .......................................................................................................................................................

$11.40
12.40
13.45
14.50
15.55

Amount
(prepaid
annual fees) 2
$686.40
746.40
808.20
870.60
935.40

1 Rounded
2 Prepaid

down to the next $0.05 (five-cent) increment to facilitate border operations.
fees are set at 60 times the unrounded fee rates: $11.44, $12.44, $13.47, $14.51, $15.59.

(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 60
times the unrounded per arrival fee.
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 3. 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,
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
48.32 times the AQI user fee for each
arrival.

TABLE 3 TO PARAGRAPH (d)(1)—FEE FOR INSPECTION OF COMMERCIAL RAILROAD CARS
Amount
(per arrival)

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Effective date
Beginning January 1, 2024 ......................................................................................................................................
October 1, 2024 .......................................................................................................................................................
October 1, 2025 .......................................................................................................................................................
October 1, 2026 .......................................................................................................................................................
October 1, 2027 .......................................................................................................................................................

(2) Exemptions. The following
categories of commercial railroad cars
are exempt from paying an AQI user fee:

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(i) Any commercial railroad car that is
part of a train whose journey originates
and terminates in Canada, if:

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$5.81
6.51
7.23
7.97
8.72

Amount
(prepaid)
$278.88
312.48
347.04
382.56
418.56

(A) The commercial railroad car is
part of the train when the train departs
Canada; and

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(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 worksheet procedures.
The Association of American Railroads
(AAR), the National Railroad Passenger
Corporation (AMTRAK), and railroad
companies acting individually shall file
monthly Remittance Worksheets with
USDA, APHIS, FMD, within 90 days
after the end of each calendar month.
Each remittance worksheet 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 remittance worksheet with their
mailed payment as directed in this
paragraph (d)(4). For all other payment
types, the companies must email the
remittance worksheet to ABSHelpline@
usda.gov. Individual railroad companies
must submit a remittance worksheet for
periods with no fees collected. Detailed
remittance instructions are located at
https://www.aphis.usda.gov/aphis/
ourfocus/business-services/aqi-userfees. Questions and correspondence
may be directed to ABSHelpline@

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usda.gov 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 60 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) Remittance worksheets as
described in paragraph (d)(4) of this
section, are required to accompany all
payments. Detailed payment
instructions are located at https://
www.aphis.usda.gov/aphis/ourfocus/
business-services/aqi-user-fees.
Questions and correspondence may be
sent to [email protected], 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 remittance
worksheets, 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
[email protected]. 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

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54821

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 § 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 4:

TABLE 4 TO PARAGRAPH (e)(1)—FEE
FOR INSPECTION OF COMMERCIAL
AIRCRAFT
Effective date
Beginning January 1, 2024 ........
October 1, 2024 ..........................
October 1, 2025 ..........................
October 1, 2026 ..........................
October 1, 2027 ..........................

Amount
$288.41
309.00
330.07
351.64
373.68

(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) Any aircraft moving from the U.S.
Virgin Islands to Puerto Rico; and
(v) 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 worksheet 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
https://www.aphis.usda.gov/mrpbs/

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Federal Register / Vol. 88, No. 154 / Friday, August 11, 2023 / Proposed Rules

userfees/aqi-payment-types.pdf or for
further information relative to electronic
remittance, contact ABSHelpline@
usda.gov. 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 https://
www.aphis.usda.gov/mrpbs/userfees/
aqi-payment-types.pdf. Questions and
correspondence may be directed to
[email protected] or to (612) 336–
3400 (fax) or (877) 777–2128 (phone).
For payment information, refer to our
detailed payment instructions at https://
www.aphis.usda.gov/aphis/ourfocus/
business-services/aqi-user-fees/aqi_
user_fees. 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 remittance worksheet each
month stating the fees that are due for
the month. Carriers or their agents must
include a hard copy of the remittance
worksheet with any mailed payment.
For all other payment types, including
for months with no fees collected, the
carriers must email the remittance
worksheet to [email protected].
(iii) The remittance worksheet is a
written statement that 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
remittance worksheet 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 https://www.aphis.usda.gov/
aphis/ourfocus/business-services/aqiuser-fees.
(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 paragraph (e) of this
section 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 calculations, payments, and
remittance worksheets 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

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responsibility. The carrier or their agent
or responsible person must contact
APHIS at https://www.aphis.usda.gov/
aphis/ourfocus/planthealth/ppqprogram-overview/ppq-cbp-aqi-userfees-contacts 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
passenger the applicable fee specified in
this section, including the fee applicable
to any infants or toddlers traveling
without a separate ticket or travel
document, whether in assigned seats or
held in an adult passenger’s lap. In the
event that the air or sea carrier, travel
agent, tour wholesaler, or other party
issuing a ticket or travel document does
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. The AQI
user fee will apply to tickets purchased
beginning January 1, 2024. The fees are
shown in tables 5 and 6:

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TABLE 5 TO PARAGRAPH (f)(1)—
INTERNATIONAL AIR PASSENGER
Effective date
Beginning January 1, 2024 ........
October 1, 2024 ..........................
October 1, 2025 ..........................
October 1, 2026 ..........................
October 1, 2027 ..........................

Amount
$4.29
4.44
4.60
4.76
4.93

TABLE 6 TO PARAGRAPH (f)(1)—INTERNATIONAL CRUISE (SEA) PASSENGER
Effective date
Beginning January 1, 2024 ........
October 1, 2024 ..........................
October 1, 2025 ..........................
October 1, 2026 ..........................
October 1, 2027 ..........................

Amount
$1.20
1.25
1.29
1.34
1.39

(2) Exemptions. The following
categories of passengers are exempt
from paying an AQI user fee:
(i) Crew members onboard for
purposes related to the operation of the
vessel;
(ii) Crew members who are on duty on
a commercial aircraft;
(iii) Airline employees, including
‘‘deadheading’’ crew members, who are
traveling on official airline business;
(iv) Diplomats, except for U.S.
diplomats, who can show that their
names appear on the accreditation
listing maintained by the U.S.
Department of State. In lieu of the
accreditation listing, an individual
diplomat may present appropriate proof
of diplomatic status to include
possession of a diplomatic passport or
visa, or diplomatic identification card
issued by a foreign government;
(v) Passengers departing and returning
to the United States without having
touched a foreign port or place;
(vi) Passengers arriving on any
commercial aircraft 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
aircraft is not carrying persons or
merchandise for commercial purposes.
Passengers on commercial aircraft under
contract to the U.S. Department of
Defense (DOD) are exempted if they
have been precleared abroad under the
joint DOD/APHIS Military Inspection
Program;
(vii) Passengers arriving on an aircraft
due to an emergency or forced landing
when the original destination of the
aircraft was a foreign port;
(viii) Passengers transiting the United
States and not subject to inspection; and
(ix) Passengers moving from the U.S.
Virgin Islands to Puerto Rico.

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(3) Circumstances of user fee
collections. AQI user fees shall be
collected under the following
circumstances:
(i) When through tickets or travel
documents are issued indicating travel
to the customs territory of the United
States that originates in any foreign
country; and
(ii) When passengers arrive in the
customs territory of the United States in
transit from a foreign country and are
inspected by APHIS or CBP.
(4) Responsibility for collection of
fees. (i) Any air or sea carrier, travel
agent, tour wholesaler, or other party
issuing a ticket or travel document on or
after May 13, 1991, is responsible for
collecting the AQI user fee from all
passengers transported into the customs
territory of the United States to whom
the AQI user fee applies.
(A) Tickets or travel documents must
be marked by the person who collects
the AQI user fee to indicate that the
required AQI user fee has been collected
from the passenger.
(B) If the AQI user fee applies to a
passenger departing from the United
States and if the passenger’s tickets or
travel documents were issued on or after
May 13, 1991, but do not reflect
collection of the AQI user fee at the time
of issuance, then the carrier transporting
the passenger from the United States
must collect the AQI user fee upon
departure.
(C) Unless refunded pursuant to
paragraph (f)(5)(v) of this section, AQI
user fees collected from international
passengers pursuant to this paragraph (f)
shall be held in trust for the United
States by the person collecting such
fees, by any person holding such fees,
or by the person who is ultimately
responsible for remittance of such fees
to APHIS. AQI user fees collected from
international passengers shall be
accounted for separately and shall be
regarded as trust funds held by the
person possessing such fees as agents,
for the beneficial interest of the United
States. All such user fees held by any
person shall be property in which the
person holds only a possessory interest
and not an equitable interest. As
compensation for collecting, handling,
and remitting the AQI user fees for
international passengers, the person
holding such user fees shall be entitled
to any interest or other investment
return earned on the user fees between
the time of collection and the time the
user fees are due to be remitted to
APHIS under this section. Nothing in
this section shall affect APHIS’ right to
collect interest for late remittance.
(5) Remittance and payment
procedures. (i) The air or sea carrier,

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travel agent, tour wholesaler, or other
party issuing a ticket or travel document
or their own non-carrier related tickets
or travel documents, must remit
collections of AQI user fees from the
passengers to APHIS.
(ii) The air or sea carrier, travel agent,
tour wholesaler, or other party issuing a
ticket or travel document must remit the
passengers’ fees to APHIS no later than
90 days after the close of the calendar
month in which the ticket issuer
collected the AQI user fees from the
passengers. Late payments will be
subject to interest, penalties, 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).
(iii) All fee payments required under
this section must be made in U.S.
dollars. For payment types accepted
please visit https://www.aphis.usda.gov/
aphis/ourfocus/business-services/aqiuser-fees. APHIS strongly encourages
electronic remittance of fees. To set up
electronic remittance refer to our
detailed payment instructions at https://
www.aphis.usda.gov/mrpbs/userfees/
aqi-payment-types or for further
information relative to electronic
remittance, contact ABSHelpline@
usda.gov. 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 https://
www.aphis.usda.gov/mrpbe/userfees/
aqi-payment-types. Questions and
correspondence may be sent to
[email protected] or fax (612)
336–3400 or (877) 777–2128. For
payment information, refer to our
detailed payment instructions at https://
www.aphis.usda.gov/aphis/ourfocus/
business-services/aqi-user-fees/aqi_
user_fees.
(iv) The air or sea carrier, travel agent,
tour wholesaler, or other party issuing a
ticket or travel document must provide
a remittance worksheet each month
stating the passenger fees that are due
for the month or stating that no
payments are due. The air or sea carrier,
travel agent, tour wholesaler, or other
party issuing a ticket or travel document
must include the remittance worksheet
with their mailed payment. For all other
payment types, they must email the
remittance worksheet separately to
[email protected]. The remittance
worksheet is a written statement that
must include the following information:
(A) Name and address of the person
remitting payment;
(B) Calendar month covered by the
payment; and

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54823

(C) Amount collected and remitted.
(v) It is the ticket or travel documentissuing entity’s (e.g., air or sea carrier,
travel agent, tour wholesaler, or other
party) responsibility to make refunds of
international passenger AQI user fees to
the purchaser for trips not taken. The air
or sea carrier, travel agent, tour
wholesaler, or other party issuing a
ticket or travel document must refund
the purchaser in the exact form of
payment that the purchaser originally
used, and the entity may not issue
vouchers, other forms of credit, or other
forms of refund different from the
purchaser’s original form of payment.
(vi) If an air or sea carrier, travel
agent, tour wholesaler, or other party
issuing a ticket or travel document
collected and remitted to APHIS the
international passenger AQI user fees
prior to refunding the purchaser in
accordance with paragraph (f)(5)(v) of
this section, it may request that APHIS
credit its account in the net amount
refunded to the purchaser. APHIS will
apply the credit against remittances due
in future months until the credit is
expended. To request such a credit, the
ticket or travel document-issuing entity
must submit a revised remittance
worksheet indicating the revised
number of passengers and international
passenger AQI user fees amount
collected. The revised remittance
worksheet must 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, using
the procedure described in paragraph
(f)(5)(iv) of this section.
(6) Notification. Carriers contracting
with U.S.-based tour wholesalers are
responsible for notifying the USDA,
APHIS, FMD, FOB at https://
www.aphis.usda.gov/aphis/ourfocus/
planthealth/ppq-program-overview/ppqcbp-aqi-user-fees-contacts of all
journeys contracted, the number of
spaces contracted for, and the name,
address, and taxpayer identification
number of the United States-based tour
wholesaler, within 90 days after the
close of the calendar month in which
such a journey occurred; except that,
carriers are not required to make
notification if tickets, marked to show
collection of the AQI user fee, are issued
for the individual contracted spaces.
(7) Compliance. Each carrier, travel
agent, U.S.-based tour wholesaler, or
other entity subject to this section must
allow APHIS, CBP, and authorized
representatives to verify the accuracy of
the AQI user fees collected and remitted
and to otherwise determine compliance
with 21 U.S.C. 136a and this paragraph

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(f). Each carrier, travel agent, U.S.-based
tour wholesaler, or other entity must
advise USDA, APHIS, FMD, at https://
www.aphis.usda.gov/aphis/ourfocus/
planthealth/ppq-program-overview/ppqcbp-aqi-user-fees-contacts of the name,
address, and telephone number of a
responsible officer who is authorized to
verify AQI user fee calculations,
payments, and remittance worksheets,
as well as any changes in the identifying
information submitted. The responsible
person for a payment remains the
responsible person until the air or sea
carrier, travel agent, tour wholesaler, or
other party issuing a ticket or travel
document notifies APHIS of a transfer of
responsibility. The responsible person
must contact APHIS to initiate any
transfer. The new responsible person
assumes all responsibilities for ensuring

compliance for meeting the
requirements of this part.
(8) Limitation on charges. Airlines
and cruise lines will not be charged
reimbursable overtime for passenger
inspection services required for any
aircraft or cruise ship on which a
passenger arrived who has paid the
international passenger AQI user fee for
that flight or cruise.
(g) Fees for export certification of
plants and plant products. (1) For each
certificate issued by APHIS personnel,
the recipient must pay the applicable
AQI user fee at the time and place the
certificate is issued.
(2) When the work necessary for the
issuance of a certificate is performed by
APHIS personnel on a Sunday or
holiday, or at any other time outside the
regular tour of duty of the APHIS
personnel issuing the certificate, in
addition to the applicable user fee, the

recipient must pay the applicable
overtime rate in accordance with
§ 354.1.
(3)(i) Each exporter who receives a
certificate issued on behalf of APHIS by
a designated State or county inspector
must pay an administrative user fee, as
shown in table 7. The administrative fee
can be remitted by the exporter directly
to APHIS through the Phytosanitary
Certificate Issuance and Tracking
System (PCIT), provided that the
exporter has a PCIT account and
submits the application for the export
certificate through the PCIT. If the PCIT
is not used, the State or county issuing
the certificate is responsible for
collecting the fee and remitting it
monthly to the U.S. Bank, United States
Department of Agriculture, APHIS, AQI,
P.O. Box 979043, St. Louis, MO 63197–
9000.

TABLE 7 TO PARAGRAPH (g)(3)(i)—ADMINISTRATIVE USER FEE
Amount per shipment
Effective dates
PCIT used
October 1, 2009, through September 30, 2010 ......................................................................................................
October 1, 2010, through September 30, 2011 ......................................................................................................
Beginning October 1, 2011 ......................................................................................................................................

PCIT not used

$3
6
6

$6
12
12

(ii) The AQI user fees for an export or
reexport certificate for a commercial
shipment are shown in table 8.

TABLE 8 TO PARAGRAPH (g)(3)(ii)—EXPORT OR REEXPORT CERTIFICATE FOR COMMERCIAL SHIPMENT
Amount per
shipment

Effective dates
October 1, 2009, through September 30, 2010 ..................................................................................................................................
October 1, 2010, through September 30, 2011 ..................................................................................................................................
Beginning October 1, 2011 ..................................................................................................................................................................

(iii) The AQI user fees for an export
or reexport certificate for a low-value
commercial shipment are shown in
table 9. A commercial shipment is a
low-value commercial shipment if the

items being shipped are identical to
those identified on the certificate; the
shipment is accompanied by an invoice
which states that the items being
shipped are worth less than $1,250; and

$77
104
106

the shipper requests that the user fee
charged be based on the low value of the
shipment.

TABLE 9 TO PARAGRAPH (g)(3)(iii)—EXPORT OR REEXPORT CERTIFICATE FOR LOW-VALUE COMMERCIAL SHIPMENT
Amount per
shipment

Effective dates

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October 1, 2009, through September 30, 2010 ..................................................................................................................................
October 1, 2010, through September 30, 2011 ..................................................................................................................................
Beginning October 1, 2011 ..................................................................................................................................................................

(iv) The AQI user fees for an export
or reexport certificate for a

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noncommercial shipment are shown in
table 10.

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$42
60
61

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Federal Register / Vol. 88, No. 154 / Friday, August 11, 2023 / Proposed Rules
TABLE 10 TO PARAGRAPH (g)(3)(iv)—EXPORT OR REEXPORT CERTIFICATE FOR NONCOMMERCIAL SHIPMENT

Amount per
shipment

Effective dates
October 1, 2009, through September 30, 2010 ..................................................................................................................................
October 1, 2010, through September 30, 2011 ..................................................................................................................................
Beginning October 1, 2011 ..................................................................................................................................................................

$42
60
61

(v) The AQI user fees for replacing
any certificate are shown in table 11.

TABLE 11 TO PARAGRAPH (g)(3)(v)—REPLACEMENT FEE
Amount per
certificate

Effective dates
October 1, 2009, through September 30, 2010 ..................................................................................................................................
October 1, 2010, through September 30, 2011 ..................................................................................................................................
Beginning October 1, 2011 ..................................................................................................................................................................

(4) If a designated State inspector
issues a certificate, the State where the
certificate is issued may charge for
inspection services provided in that
State.
(5) Any State which wishes to charge
a fee for services it provides to issue
certificates must establish fees in
accordance with one of the following
guidelines:
(i) Calculation of a ‘‘cost-percertificate’’ fee. The State must:
(A) Estimate the annual number of
certificates to be issued;
(B) Determine the total cost of issuing
certificates by adding together delivery,3
support,4 and administrative costs; 5 and
(C) Divide the cost of issuing
certificates by the estimated number of
certificates to be issued to obtain a
‘‘raw’’ fee. The State may round the
‘‘raw’’ fee up to the nearest quarter, if
necessary for ease of calculation,
collection, or billing; or
(ii) Calculation of a ‘‘cost-per-hour’’
fee. The State must:

(A) Estimate the annual number of
hours taken to issue certificates by
adding together delivery,6 support,7 and
administrative 8 hours;
(B) Determine the total cost of issuing
certificates by adding together delivery,3
support,4 and administrative costs; and
(C) Divide the cost of issuing
certificates by the estimated number of
hours taken to issue certificates to
obtain a ‘‘cost-per-hour’’ fee. The State
may round the ‘‘cost-per-hour’’ fee up to
the nearest quarter, if necessary for ease
of calculation, collection, or billing.
(6) For payment of any of the AQI
user fees required in this paragraph (g),
we will accept personal checks for
amounts less than $100, and checks
drawn on commercial accounts,
cashier’s checks, certified checks,
traveler’s checks, and money orders for
any amount. All payments must be for
the exact amount due.
(h)(1) Fee for conducting and
monitoring treatments. (i) User fees for
all treatment-and treatment-related AQI

$11
15
15

services listed in paragraphs (h)(1)(ii)(A)
through (D) of this section, will be
calculated at the hourly rate listed in
table 12 for each employee required to
perform the service during regular
business hours. Each treatment provider
conducting a treatment application
required for entry into the United States,
or other monitored activity such as
restacking or reconditioning required for
treatment application, is responsible for
collecting from the importer, their
broker or agent the applicable fee
specified in this section. In instances in
which APHIS is the treatment provider,
the importer is responsible paying the
fee directly to APHIS. Multiple
phytosanitary treatments and treatmentrelated activities may be conducted
during the same time period and
covered by a single hourly rate subject
to local government, union agreements,
environmental standards, and other
applicable regulations, rules, and
ordinances.

TABLE 12 TO PARAGRAPH (h)(1)(i)—FEE FOR CONDUCTING AND MONITORING TREATMENTS
User fee

January 1, 2024

October 1, 2024

October 1, 2025

October 1, 2026

October 1, 2027

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Hourly rate (per employee):
3 Delivery costs are costs such as employee salary
and benefits, transportation, per diem, travel,
purchase of specialized equipment, and user fee
costs associated with maintaining field offices.
Delivery hours are similar hours taken by
inspectors, including travel time, inspection time,
and time taken to complete paperwork.
4 Support costs are costs at supervisory levels
which are similar to delivery costs, and user fee
costs such as training, automated data processing,
public affairs, enforcement, legal services,
communications, postage, budget and accounting
services, and payroll, purchasing, billing, and
collecting services. Support hours are similar hours
taken at supervisory levels, as well as hours taken
in training, automated data processing,
enforcement, legal services, communication,

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budgeting and accounting, payroll purchasing,
billing, and collecting.
5 Administrative costs are costs incurred as a
direct result of collecting and monitoring Federal
phytosanitary certificates. Administrative hours are
hours taken as a direct result of collecting and
monitoring Federal phytosanitary certificates.
6 Delivery costs are costs such as employee salary
and benefits, transportation, per diem, travel,
purchase of specialized equipment, and user fee
costs associated with maintaining field offices.
Delivery hours are similar hours taken by
inspectors, including travel time, inspection time,
and time taken to complete paperwork.
7 Support costs are costs at supervisory levels
which are similar to delivery costs, and user fee

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costs such as training, automated data processing,
public affairs, enforcement, legal services,
communications, postage, budget and accounting
services, and payroll, purchasing, billing, and
collecting services. Support hours are similar hours
taken at supervisory levels, as well as hours taken
in training, automated data processing,
enforcement, legal services, communication,
budgeting and accounting, payroll purchasing,
billing, and collecting.
8 Administrative costs are costs incurred as a
direct result of collecting and monitoring Federal
phytosanitary certificates. Administrative hours are
hours taken as a direct result of collecting and
monitoring Federal phytosanitary certificates.

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Federal Register / Vol. 88, No. 154 / Friday, August 11, 2023 / Proposed Rules
TABLE 12 TO PARAGRAPH (h)(1)(i)—FEE FOR CONDUCTING AND MONITORING TREATMENTS—Continued
User fee

January 1, 2024

October 1, 2024

October 1, 2025

October 1, 2026

October 1, 2027

$232.97
58.24
58.24

$253.19
63.30
63.30

$273.90
68.48
68.48

$295.12
73.78
73.78

$316.83
79.21
79.21

Per hour ....................................................
Per quarter hour .......................................
Per service minimum fee ..........................

(ii) APHIS will charge user fees for all
treatment-and treatment-related AQI
services:
(A) Conducting or monitoring
phytosanitary treatments in accordance
with part 305 of this chapter and the
USDA APHIS Treatment Manual
(https://www.aphis.usda.gov/import_
export/plants/manuals/ports/
downloads/treatment.pdf) including but
not limited to approved fumigation,
irradiation, heat, cold, and mechanical
treatment types.
(B) Conducting or monitoring the
restacking of shipments in preparation
for phytosanitary treatments in
accordance with this section.

employee needed to get the work done.
The treatment services overtime hourly
rate will be applied identically to
reimbursable overtime (rules pertaining
to commuted travel time, minimum callouts, etc., in § 354.1). Overtime services
will incur a minimum charge of 2 hours,
unless performed on the employee’s
regular workday and performed in
direct continuation of the regular
workday or begun within an hour of the
regular workday. When the 2-hour
minimum applies, you may need to pay
commuted travel time. (See § 354.1(a)(2)
for specific information about
commuted travel time.)

(C) Conducting or monitoring the
reconditioning of shipments in
preparation for phytosanitary treatments
in accordance with this section.
(D) Conducting or monitoring the
aeration of shipments after the
completion of phytosanitary treatments
in accordance with this section.
(2) When do I pay an additional
amount for employee(s) working
overtime? You must pay an additional
amount if you need an APHIS employee
to work on a Sunday, on a holiday, or
at any time outside the normal tour of
duty of that employee. Instead of paying
the hourly rate user fee, you pay the
premium rate listed in table 13 for each

TABLE 13 TO PARAGRAPH (h)(2)—FEE FOR CONDUCTING AND MONITORING TREATMENTS OUTSIDE THE EMPLOYEE’S NORMAL TOUR OF DUTY, MONDAY THROUGH SATURDAY AND HOLIDAYS; AND PREMIUM RATES FOR CONDUCTING AND
MONITORING TREATMENTS ON SUNDAY
Reimbursable overtime and premium rate user fee

Overtime rates
(outside the employee’s normal tour of duty)

January 1, 2024

October 1, 2024

October 1, 2025

October 1, 2026

October 1, 2027

$240.89
60.22

$261.36
65.34

$282.32
70.58

$303.93
75.98

$326.04
81.51

272.27
68.07

294.34
73.58

317.62
79.41

342.26
85.57

368.40
92.10

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Overtime hourly rate Monday through Saturday and holidays:
Per hour: ....................................................................................
Per quarter hour: ........................................................................
Premium hourly rate for Sundays:
Per hour: ....................................................................................
Per quarter hour: ........................................................................

(3) Who must pay APHIS treatment
monitoring hourly user fees? Any
treatment provider or importer for
whom a service is provided related to
treatment conducting or monitoring as
specified in paragraphs (h)(1)(ii)(A)
through (D) of this section is liable for
payment of fees as prescribed in
paragraph (h)(4) of this section.
(4) Collection of fees. (i) The owner,
agent, or person in charge of private
entities that provide AQI treatment
services to importers must collect the
AQI treatment services hourly user fee
and remit them to APHIS.
(ii) When APHIS conducts treatments,
APHIS will collect the AQI treatment
fee applicable at the time the treatment
is applied from the person receiving the
services.
(5) When are APHIS treatment
monitoring user fees due? User fees
specified in paragraph (h)(1)(i) of this
section must be paid when service is
provided (for example when APHIS
monitors a treatment at a facility). If
APHIS determines that the user has
established an acceptable credit history,

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the owner, agent, or person in charge
may request to pay when billed.
(6) What payment methods are
acceptable? All fee payments required
under this section must be made in U.S.
dollars. For payment types accepted
please visit https://www.aphis.usda.gov/
aphis/ourfocus/business-services/aqiuser-fees.
(i) Consequences for nonpayment or
late payment of user fees—(1) Unpaid
debt. In cases of delinquent debts, the
government is required to charge and
collect interest, penalties, and costs. See
31 U.S.C. 3717(a) (interest); 3717(e)(1)
(costs); and 3717(e)(2) (penalties). If any
person for whom the service is provided
fails to pay when due any debt to
APHIS, including any user fee due
under chapter I or chapter III of this
title, then:
(i) Subsequent user fee payments.
Payment must be made for subsequent
user fees before the service is provided
if:
(A) For unbilled fees, the user fee is
unpaid 60 days after the date the

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pertinent regulatory provision indicates
payment is due;
(B) For billed fees, the user fee is
unpaid 60 days after date of bill;
(C) The person for whom the service
is provided or the person requesting the
service has not paid the late payment
penalty charges, interest charges, or
charges for the cost of processing and
handling the delinquent bill on any
delinquent APHIS user fee; or
(D) Payment has been dishonored.
(ii) Resolution of difference between
estimate and actual. APHIS will
estimate the user fee to be paid; any
difference between the estimate and the
actual amount owed to APHIS will be
resolved as soon as reasonably possible
following the delivery of the service,
with APHIS returning any excess to the
payor or billing the payor for the
additional amount due.
(iii) Prepayment form. The
prepayment must be in guaranteed form
of payment, such as money order or
certified check. Prepayment in
guaranteed form will continue until the
debtor pays the delinquent debt.

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(iv) Denied service. Service will be
denied until the debt is paid if:
(A) For unbilled fees, the user fee is
unpaid 90 days after date the pertinent
regulatory provision indicates payment
is due;
(B) For billed fees, the user fee is
unpaid 90 days after date of bill;
(C) The person for whom the service
is provided or the person requesting the
service has not paid the late payment
penalty charges, interest charges, or
charges for the cost of processing and
handling the delinquent bill on any
delinquent APHIS user fee; or
(D) Payment has been dishonored.
(2) Unpaid debt during service. If
APHIS is in the process of providing a
service for which an APHIS user fee is
due, and the user has not paid the fee
within the time required, or if the
payment offered by the user is
inadequate or unacceptable, then APHIS
will take the following action: If
regulated articles in quarantine at a
treatment facility cannot be released
from quarantine, APHIS may seize and
dispose of them, as determined by the
Administrator, and may recover all
expenses of handling the articles from
persons liable for user fees under
paragraph (h)(1)(i) of this section as
outlined in paragraphs (h)(6)(i) through
(iv) of this section. If regulated articles
can be released from quarantine, the
articles will be released and any unpaid
debt will be handled as outlined in
paragraph (h)(6)(i) of this section.
(3) Late payments. If for unbilled user
fees, the user fees are unpaid 30 days
after the date the pertinent regulatory
provisions indicates payment is due, or
if billed, are unpaid 30 days after the
date of the bill, APHIS will impose late
payment penalty charges, interest
charges, and charges for the cost of
processing and handling the delinquent
bill in accordance with 31 U.S.C. 3717.
(4) Dishonored payment. User fees
paid with dishonored forms of payment,
such as a check returned for insufficient

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funds, will be subject to interest and
penalty charges in accordance with 31
U.S.C. 3717. Administrative charges
will be assessed at $20.00 per
dishonored payment to be paid in
addition to the original amount owed.
Payment must be in guaranteed form,
such as a money order or certified
check.
(5) Debt collection management. In
accordance with applicable debt
collection law, the following provisions
apply:
(i) Taxpayer identification number.
APHIS will collect a taxpayer
identification number from all persons,
other than Federal agencies, who are
liable for a user fee.
(ii) Offset. APHIS takes appropriate
action to collect debts through offset
under applicable law, including by
notifying the Department of the
Treasury of debts that are over 120 days
delinquent for the purposes of offset
through the Treasury Offset Program.
Through the Treasury Offset Program,
the Department of the Treasury will
offset eligible Federal and State
payments to satisfy the debt to APHIS.
(iii) Cross-servicing. APHIS will
transfer debts that are over 120 days
delinquent to the Department of the
Treasury’s Cross-Servicing program.
Through the Cross-Servicing program,
the Department of the Treasury will
collect debts on behalf of APHIS.
Exceptions may be made for debts that
meet certain requirements, for example,
debts that are already at a collection
agency or in payment plans.
(6) Report delinquent debt. APHIS
will report all unpaid debts to credit
reporting bureaus.
(j) Recordkeeping and record
retention. (1) Entities responsible for
paying AQI user fees and their agents
are required to establish, keep, and
make available to APHIS the following
records:

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54827

(i) Records and reports required under
this section, including remittance
worksheets, if applicable; and
(ii) Legible copies of contracts
(including amendments to contracts)
between the responsible entity or their
agents and agents that conduct activities
subject to this part for the responsible
entity, and copies of documents relating
to agreements made without a written
contract.
(2) Responsible entities or their agents
must maintain sufficient documentation
for APHIS, CBP, and representatives to
verify the accuracy of the fee collections
and, if applicable, remittance
worksheets. Such information must be
made available for inspection upon
APHIS and CBP’s demand. Such
documentation shall be maintained in
the United States for a period of 5 years
from the date of fee calculation, unless
a longer retention period is determined
to be needed by the Administrator. Each
such affected entity shall 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 shall promptly notify APHIS and
CBP of any changes in the identifying
information previously submitted.
(k) Severability. The sections of part
354 are separate and severable from one
another. If any section or portion therein
is stayed or determined to be invalid, or
the applicability of any section to any
person or entity is held invalid, it is the
APHIS’ intention that the validity of the
remainder of those parts shall not be
affected, with the remaining sections to
continue in effect.
Done in Washington, DC, this 2nd day of
August 2023.
Jennifer Moffitt,
Undersecretary, Marketing and Regulatory
Programs, USDA.
[FR Doc. 2023–17045 Filed 8–10–23; 8:45 am]
BILLING CODE 3410–34–P

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