10634 Federal Register / Vol. 75, No. 45 / Tuesday, March 9, 2010 / Rules and Regulations 

1To view the interim rule and the comments we 

received, go to http://www.regulations.gov/ 

fdmspublic/component/ 

main?main=DocketDetail&d=APHIS-2006-0096. 

this system of records could inform the 

subject of an investigation of an actual or 

potential criminal, civil, or regulatory 

violation, to the existence of the 

investigation, and reveal investigative 

interest on the part of DHS or another agency. 

Access to the records could permit the 

individual who is the subject of a record to 

impede the investigation, to tamper with 

witnesses or evidence, and to avoid detection 

or apprehension. Amendment of the records 

could interfere with ongoing investigations 

and law enforcement activities and would 

impose an impossible administrative burden 

by requiring investigations to be 

continuously reinvestigated. In addition, 

permitting access and amendment to such 

information could disclose security-sensitive 

information that could be detrimental to 

homeland security. 

(c) From subsection (e)(1) (Relevancy and 

Necessity of Information) because in the 

course of investigations into potential 

violations of Federal law, the accuracy of 

information obtained or introduced 

occasionally may be unclear or the 

information may not be strictly relevant or 

necessary to a specific investigation. In the 

interests of effective law enforcement, it is 

appropriate to retain all information that may 

aid in establishing patterns of unlawful 

activity. 

(d) From subsection (e)(2) (Collection of 

Information from Individuals) because 

requiring that information be collected from 

the subject of an investigation would alert the 

subject to the nature or existence of an 

investigation, thereby interfering with the 

related investigation and law enforcement 

activities. 

(e) From subsection (e)(3) (Notice to 

Subjects) because providing such detailed 

information would impede law enforcement 

in that it could compromise investigations 

by: Revealing the existence of an otherwise 

confidential investigation and thereby 

provide an opportunity for the subject of an 

investigation to conceal evidence, alter 

patterns of behavior, or take other actions 

that could thwart investigative efforts; reveal 

the identity of witnesses in investigations, 

thereby providing an opportunity for the 

subjects of the investigations or others to 

harass, intimidate, or otherwise interfere 

with the collection of evidence or other 

information from such witnesses; or reveal 

the identity of confidential informants, 

which would negatively affect the 

informant’s usefulness in any ongoing or 

future investigations and discourage 

members of the public from cooperating as 

confidential informants in any future 

investigations. 

(f) From subsections (e)(4)(G) and (H) 

(Agency Requirements), and (f) (Agency 

Rules) because portions of this system are 

exempt from the individual access provisions 

of subsection (d) for the reasons noted above, 

and therefore DHS is not required to establish 

requirements, rules, or procedures with 

respect to such access. Providing notice to 

individuals with respect to existence of 

records pertaining to them in the system of 

records or otherwise setting up procedures 

pursuant to which individuals may access 

and view records pertaining to themselves in 

the system would undermine investigative 

efforts and reveal the identities of witnesses, 

and potential witnesses, and confidential 

informants. 

(g) From subsection (e)(5) (Collection of 

Information) because in the collection of 

information for law enforcement purposes it 

is impossible to determine in advance what 

information is accurate, relevant, timely, and 

complete. Compliance with (e)(5) would 

preclude DHS agents from using their 

investigative training and exercise of good 

judgment to both conduct and report on 

investigations. 

(h) From subsection (e)(8) (Notice on 

Individuals) because compliance would 

interfere with DHS’ ability to obtain, serve, 

and issue subpoenas, warrants, and other law 

enforcement mechanisms that may be filed 

under seal, and could result in disclosure of 

investigative techniques, procedures, and 

evidence. 

(i) From subsection (g) to the extent that 

the system is exempt from other specific 

subsections of the Privacy Act relating to 

individuals’ rights to access and amend their 

records contained in the system. Therefore 

DHS is not required to establish rules or 

procedures pursuant to which individuals 

may seek a civil remedy for the agency’s: 

Refusal to amend a record; refusal to comply 

with a request for access to records; failure 

to maintain accurate, relevant timely and 

complete records; or failure to otherwise 

comply with an individual’s right to access 

or amend records. 

Dated: February 5, 2010. 

Mary Ellen Callahan, 

Chief Privacy Officer, Department of 

Homeland Security. 

[FR Doc. 2010–4900 Filed 3–8–10; 8:45 am] 

BILLING CODE 9111–28–P 

DEPARTMENT OF AGRICULTURE 

Animal and Plant Health Inspection 

Service 

7 CFR Part 354 

[Docket No. APHIS–2006–0096] 

RIN 0579–AC06 

Agricultural Inspection and AQI User 

Fees Along the U.S./Canada Border 

AGENCY: Animal and Plant Health 

Inspection Service, USDA. 

ACTION: Final rule. 

SUMMARY: We are adopting as a final 

rule, with changes, an interim rule that 

amended the foreign quarantine and 

user fee regulations by removing the 

exemptions from inspection for 

imported fruits and vegetables grown in 

Canada and the exemptions from user 

fees for commercial vessels, commercial 

trucks, commercial railroad cars, 

commercial aircraft, and international 

air passengers entering the United States 

from Canada. The interim rule was 

necessary in part because we were not 

recovering the costs of the inspection 

activities we were engaged in at the 

U.S./Canada border. In addition, our 

data showed an increasing number of 

interceptions on the U.S./Canada border 

of prohibited material that originated in 

Canada and countries other than Canada 

that presents a high risk of introducing 

plant pests or animal diseases into the 

United States. These findings, combined 

with additional Canadian airport 

preclearance data on interceptions of 

ineligible agricultural products 

approaching the U.S. border from 

Canada, strongly indicated that we 

needed to expand and strengthen our 

pest exclusion and smuggling 

interdiction efforts at that border. As a 

result of the interim rule, all agricultural 

products imported from Canada are 

subject to inspection, and all 

commercial conveyances, with certain 

exceptions established by this final rule, 

as well as airline passengers arriving on 

flights from Canada, are subject to user 

fees. 

DATES: Effective Date: March 9, 2010. 

FOR FURTHER INFORMATION CONTACT: Ms. 

Cynthia Stahl, Senior Staff Officer, 

Quarantine Policy, Analysis and 

Support, PPQ, APHIS, 4700 River Road 

Unit 60, Riverdale, MD 20737; (301) 

734–8415. 

SUPPLEMENTARY INFORMATION: 

Background 

The regulations in 7 CFR part 319 

prohibit or restrict the importation of 

certain plants and plant products into 

the United States to prevent the 

introduction of plant pests. Similarly, 

the regulations in 9 CFR subchapter D 

prohibit or restrict the importation of 

certain animals and animal products 

into the United States to prevent the 

introduction of pests or diseases of 

livestock. The regulations in 7 CFR part 

354 provide rates and requirements for 

overtime services relating to imports 

and exports and for user fees. 

In an interim rule1 effective 

November 24, 2006, and published in 

the Federal Register on August 25, 2006 

(71 FR 50320–50328, Docket APHIS– 

2006–0096), we amended the foreign 

quarantine regulations in part 319 and 

the user fee regulations in part 354 by 

removing the exemptions from 

inspection for imported fruits and 

vegetables grown in Canada and the 

exemptions from user fees for 

commercial vessels, commercial trucks, 


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Federal Register / Vol. 75, No. 45 / Tuesday, March 9, 2010 / Rules and Regulations 10635 

commercial railroad cars, commercial 

aircraft, and international air passengers 

entering the United States from Canada. 

As a result of the interim rule, all 

agricultural products imported from 

Canada are subject to inspection, and 

commercial conveyances, as well as 

airline passengers arriving on flights 

from Canada, are subject to inspection 

and user fees. We took that action in 

part because we were not recovering the 

costs of our inspection activities at the 

U.S./Canada border. In addition, our 

data showed an increasing number of 

interceptions on the U.S./Canada border 

of prohibited material that originated in 

Canada and countries other than Canada 

that presents a high risk of introducing 

plant pests or animal diseases into the 

United States. These findings, combined 

with additional Canadian airport 

preclearance data on interceptions of 

ineligible agricultural products 

approaching the U.S. border from 

Canada, strongly indicated that we 

needed to expand and strengthen our 

pest exclusion and smuggling 

interdiction efforts at that border. 

On November 22, 2006, we published 

in the Federal Register (71 FR 67436) a 

notice delaying the effective date for the 

changes affecting user fees for 

international air passengers until 

January 1, 2007, and all other user feerelated provisions of the rule until 

March 1, 2007. We published a 

subsequent notice on February 26, 2007 

(72 FR 8261), that further delayed the 

effective date for user fees for 

commercial trucks and loaded railroad 

cars entering the United States from 

Canada until June 1, 2007. These delays 

of effective date did not extend the 

comment period for the interim rule. 

We solicited comments on the interim 

rule for 90 days ending November 24, 

2006. We received 112 comments by 

that date. They were from private 

citizens; industry groups; 

representatives of the Canadian 

Government and Canadian State 

governments; individual shipping, 

manufacturing, and food processing 

companies; trade groups; 

representatives of trucking, airline, 

railroad, and vessel companies; State 

governments; and representatives of 

Federal and State agencies. 

Eleven commenters supported the 

interim rule. The remaining commenters 

expressed concerns with the interim 

rule. The issues raised by those 

commenters are discussed below by 

topic. 

Border Delays 

Many commenters expressed concern 

that the interim rule would cause border 

delays due to congestion resulting from 

increased inspections, which in turn 

would heavily tax existing 

infrastructure. Delays were a particular 

concern for those entities shipping 

perishable items such as food products, 

and for express carriers and companies 

with strict shipping schedules. Some 

commenters stated that delays at the 

U.S./Canada border could have an effect 

on products shipped through the United 

States to Mexico or that they could lead 

to increased fuel costs or job losses. One 

commenter expressed concern regarding 

delays as a result of insufficient 

numbers of the Animal and Plant Health 

Inspection Service (APHIS) employees 

to conduct inspections. 

Although APHIS retains the authority 

to establish and collect agricultural 

quarantine and inspection (AQI) user 

fees, the Homeland Security Act of 2002 

(Pub. L. 107–296), which established the 

Department of Homeland Security 

(DHS), transferred the responsibility for 

inspecting imported agricultural 

products from APHIS to DHS’ Bureau of 

Customs and Border Protection (CBP). 

Prior to the effective date of the interim 

rule, CBP was already conducting 

inspections of APHIS-regulated 

products at the U.S./Canada border with 

the exception of Canadian-origin fruits 

and vegetables; the interim rule did not 

create a new inspection function. 

Among other things, the collection of 

user fees at the Canadian border has 

already allowed CBP to hire additional 

inspectors to offset any potential staffing 

shortages as a result of the increased 

inspections of Canadian-grown fruits 

and vegetables required by the interim 

rule. Since implementation of the 

interim rule, we are not aware of any 

increase in delays at U.S./Canada border 

ports as a result of the rule. 

Border delays can be affected by a 

variety of factors; in addition to the 

inspections of fruits and vegetables that 

are necessary as a result of the rule, the 

past 3 years have seen the 

implementation of new national 

security initiatives such as the passport 

requirement for all citizens reentering 

the United States from Canada and the 

commencement of infrastructure 

improvement projects at several land 

border crossings on the U.S./Canada 

border. While we cannot unequivocally 

state that there have been no additional 

delays that can be attributed to the 

interim rule, the fact that CBP was 

already conducting inspections of 

conveyances at the U.S./Canada border 

prior to the interim rule’s 

implementation makes it unlikely that 

the interim rule has resulted in the 

delays or other issues cited by the 

commenters. CBP monitors the flow of 

traffic across the Canadian border 

through ports of entry and will take 

action to help alleviate future border 

delays. 

Several commenters stated that 

requiring cash payments at border 

crossings would also increase border 

delays because rail and truck crossings 

are not set up to handle cash payments 

and because such payments would 

require having to make change. Many 

commenters also stated that requiring 

cash payments renders current programs 

designed to reduce wait times by 

allowing the use of pre-paid decals or 

other means useless. 

Because CBP has been collecting 

customs user fees all along, the user fee 

collection infrastructure is already in 

place. AQI user fee payments for 

importers who move their products by 

rail are submitted directly to APHIS 

after-the-fact, therefore there are no user 

fee collections or resulting delays at rail 

crossings due to the need to handle cash 

payments. In addition, as stated in the 

interim rule, importers who frequently 

cross the border by truck will benefit 

from the purchase of a transponder that 

is good for a calendar year of unlimited 

border crossings. Over 80 percent of all 

importers who cross the border by truck 

are already benefitting from this 

provision. The remaining importers who 

must pay the per-entry user fees will be 

able to pay them at the same time they 

pay CBP fees. However, as noted 

previously, since implementation of the 

interim rule resulting in the collection 

of AQI user fees and the conducting of 

additional inspections, we are not aware 

of any delays at the U.S./Canada border. 

Several commenters asked how the 

136 new agricultural inspectors that we 

expected to be hired as a result of the 

interim rule would be able to manage all 

border crossings 7 days a week and all 

3 shifts during the day. One of those 

commenters stated that as most CBP 

personnel work from 8 a.m. to 4:30 p.m. 

and most agricultural products arrive in 

the United States overnight, this 

suggests that trucks will have to sit and 

wait for inspectors to arrive at work. 

Since most border crossings are 

staffed by CBP agriculture inspectors 

from 8:30 a.m. to 4:30 p.m. on 

weekdays, the additional inspectors 

would not be expected to manage all 

U.S./Canada border crossings 7 days a 

week and 24 hours a day. As noted by 

one of the commenters, trucks arriving 

after these hours will most likely have 

to wait until the following business day 

when inspections resume. However, 

most border port offices did not have 

agriculture inspectors available 7 days a 

week and 24 hours a day before the 

implementation of the interim rule. 

Therefore, waiting at the border already 


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occurred for trucks arriving before or 

after these hours. As stated previously, 

since implementation of the interim 

rule, we are not aware of any delays at 

the U.S./Canada border as a result of the 

interim rule, including any delays of 

this nature. 

Two commenters asked over what 

timeframe the 136 inspectors would be 

hired. One commenter asked what will 

happen in the interim before full 

staffing is reached. 

The staffing plan in the interim rule 

was developed in 2001 before the 

transfer of inspection duties from 

APHIS to CBP. CBP staffs all ports 

according to current and anticipated 

needs. We are in consultation with CBP 

regarding their staffing plan and are 

providing recommendations to them 

regarding staffing issues. Training for 

these inspectors commenced in 

November 2006 and classes continue to 

be conducted. As of August 1, 2009, 

there were 181 CBP agricultural 

inspectors on the U.S./Canada border. 

The deployment of inspectors has been 

and will continue to be as quick as 

possible. In the interim, the number of 

inspections conducted will be 

dependent on the resources available. 

Inspections will also be conducted 

randomly. As the number of additional 

staff increases, the number of 

inspections will increase accordingly. 

One commenter cited delays of up to 

24 hours due to waiting for plant 

samples to be identified and stated that 

money from user fee collection should 

go to training inspectors in pest 

identification or should be spent on 

technology to better help identify 

samples. 

We are continually working to 

improve our efficiency and cut costs, 

while carrying out our mission to 

protect U.S. agriculture from pest and 

disease outbreaks. This includes 

funding new technologies that may help 

expedite pest identification and hiring 

and training knowledgeable staff to 

assist with pest identification. 

Conducting Inspections 

Several commenters asked how 

inspections would be carried out and 

where they would be conducted. 

Selective inspections will be 

conducted at U.S. ports of entry by CBP 

agriculture inspectors. They will be the 

same type of agriculture inspections 

currently conducted at our other ports 

of entry. The specific means of 

commercial conveyance to be inspected 

and the type of inspection provided at 

a port of entry are determined by APHIS 

and CBP risk analyses to target 

conveyances or host material that may 

carry agricultural pests. Additionally, 

CBP will conduct random inspections. 

As pathways continue to change, 

random inspections become 

increasingly necessary to monitor the 

flow of imports to ensure that 

agricultural pests are not entering the 

country via previously unknown means. 

This dynamic approach to pest 

interdiction is critical to the success of 

our programs. 

Definition of Commercial Vehicle 

Two commenters asked what the 

definition of a commercial vehicle is in 

the context of the rule. 

We do not consider the term 

‘‘commercial vehicle’’ to have any 

specialized meaning beyond its 

commonly understood meaning. 

Definitions for commercial aircraft, 

commercial truck, and commercial 

vessel may be found in § 354.3 of the 

user fee regulations. 

Private Vehicle, Train, and Bus 

Passengers 

Several commenters asked how other 

pathways not addressed by the rule, 

such as private vehicles and train and 

bus passengers, would be inspected. 

Although the interim rule does not 

directly address the risk from private 

vehicles or train and bus passengers, 

these pathways have been subject to 

inspection based upon risk. The full 

economic analysis for this final rule 

includes a discussion of the inspection 

of passenger vehicles. Those inspections 

are funded by appropriated funds. 

Private Property and Businesses on the 

Border 

One commenter asked how carriers 

coming from a place sitting exactly on 

the border between the United States 

and Canada would be treated. Examples 

given were a pulp or sawmill. 

Our AQI program is in place at 

designated ports of entry along the U.S./ 

Canada border and not private 

properties along the border. Therefore, a 

carrier coming from a place sitting 

exactly on the border, such as a pulp or 

sawmill, would be treated like any other 

carrier and could be directed to one of 

these ports. 

Empty Containers and Movement of 

Nonagricultural Goods 

Many of the commenters stated that 

particular products that are not 

agricultural goods or conveyances that 

are not involved in the movement of 

agricultural goods should be exempt 

from paying agricultural user fees 

because they do not present a risk of 

introducing plant pests into the United 

States. Other commenters pointed to the 

hazardous nature of some 

nonagricultural commodities or other 

difficulties inherent in inspecting 

certain nonagricultural commodities or 

conveyances. Several commenters asked 

how empty conveyances would be dealt 

with or stated that they should also be 

exempt from the user fees. 

Risks to agricultural and natural 

resources can arise from shipments of 

nonagricultural goods and from 

conveyances moving nonagricultural 

goods. An example given in the interim 

rule was wood packaging material, such 

as wooden pallets, which is used to ship 

nonagricultural products such as 

electronic items. Wood packaging 

material can carry pests such as woodboring insects. Noxious weed seeds, 

gypsy moths, and other hitchhiking 

pests that can attach themselves to 

nonagricultural items as well as the 

vehicle itself also pose a concern. In 

addition, prohibited soil may be 

attached to the articles in a shipment or 

to the conveyance itself. If the 

conveyance has traveled through, or if 

the conveyance or shipment has 

originated in, an area of Canada 

quarantined or regulated for plant pests 

such as nematodes, these agricultural 

pests may be carried into the United 

States in soil. Therefore, it is 

appropriate that all conveyances be 

subject to the requirements described in 

the interim rule except as otherwise 

noted. These same requirements have 

been in place along the U.S./Mexico 

border for the past 18 years. With the 

publication of the interim rule, 

conveyances entering the United States 

from all foreign countries are subject to 

the same AQI user fees. 

Commercial Trucks and Railroad Cars— 

Exempt Movement That Originates and 

Ends in Canada 

Several commenters stated that a 

railroad car or truck that originates and 

terminates in the United States and that 

does not load or unload cargo in Canada 

or that originates and terminates in 

Canada and that does not load or unload 

cargo in the United States should be 

exempt from paying the user fees. 

The current regulations already 

exempt from AQI user fees those 

commercial railroad cars that are part of 

a train that originates and terminates in 

the United States and no passengers 

board or disembark and no cargo is 

loaded or unloaded while the train is in 

a foreign country. We recognize that 

there is a similar risk profile for 

commercial railroad cars that are part of 

a train that originates and terminates in 

Canada and no passengers board or 

disembark and no cargo is loaded or 

unloaded while the train is in the 

United States. Therefore, we have 


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amended the regulations in this final 

rule to state that such movements are 

also exempt from the AQI user fee. 

However, we do not agree that a similar 

exemption from the AQI user fee should 

be granted to trucks that originate and 

terminate in the United States and do 

not load or unload cargo in Canada or 

that originate and terminate in Canada 

and do not load or unload cargo in the 

United States. This is because, unlike 

railroad cars, trucks are not bound to a 

fixed track where stops and loading or 

unloading may only feasibly occur at 

designated stations. Therefore, the risk 

is high that cargo may be loaded or 

unloaded at any point. 

Vessels That Travel to Canada To 

Refuel 

One commenter stated that vessels 

that travel to Canada only to refuel 

should be exempt from paying an AQI 

user fee upon their return to the United 

States. 

We agree with the commenter. 

Although U.S.-origin vessels that travel 

to Canada to take on fuel are not 

currently exempt from paying an AQI 

user fee when they return to the United 

States, we note that Canadian-origin 

vessels that travel to the United States 

solely to take on fuel are exempt from 

paying an AQI user fee. Because we 

recognize that there is a similar risk 

profile for U.S. vessels returning from 

Canada if they have only traveled to 

Canada to take on fuel, we have 

amended the regulations in this final 

rule to state that such movements are 

also exempt from the AQI user fee. 

Small Aircraft 

Several commenters stated that the 

user fee exemption should be extended 

to apply to aircraft that are not currently 

exempt due to their size or because they 

contain more than the maximum 

number of seats to qualify for a user fee 

exemption, because such planes carry 

little cargo. 

Currently, all passenger aircraft, 

originating in any country, that have 64 

or fewer seats and that are not carrying 

certain regulated articles specified in 

§ 354.3(e)(2)(iv) are exempt from paying 

the aircraft AQI user fee. The interim 

rule and this final rule are focused on 

AQI user fees for conveyances and air 

passengers from Canada. Any new AQI 

user fee exemptions that could impact 

passengers or conveyances originating 

from countries around the world, such 

as the exemption suggested by the 

commenters, would have to be 

addressed in a separate rulemaking. 

Barges 

Several commenters stated that the 

user fee exemption should be extended 

to apply to barges that are not currently 

exempt due to their size, but that carry 

little cargo. 

We note that ferries, which are not 

considered to be commercial vessels, 

and commercial vessels weighing less 

than 100 net tons are already exempt 

from paying AQI user fees. While we do 

not agree that additional exemptions 

should be given to barges because of 

their size, we 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. 

Because of the risk of ocean-going 

barges traveling to countries outside of 

the United States and Canada, we have 

restricted our definition of barge to a 

non self-propelled vessel that transports 

cargo that is not contained in shipping 

containers. This definition does not 

include integrated tug-barge 

combinations. Further, we are limiting 

the exemption to barges that carry bulk 

cargo that originates only in the United 

States or Canada and that do not carry 

any plants or plant products or animals 

or animal products, and that do not 

carry soil or quarry products from areas 

in Canada listed in § 319.77–3 as being 

infested with gypsy moth. Therefore, we 

are amending the regulations to exempt 

barges that meet the above conditions 

from paying the AQI user fee. 

Participation in Trade Security Systems 

Several commenters expressed 

concern that the interim rule removes 

the benefits of complying with systems 

such as the Customs-Trade Partnership 

against Terrorism (C–TPAT) and 

suggested that those in the trade 

community who participate in such 

programs should be waived from having 

to comply with the provisions of the 

interim rule. 

C–TPAT does not have an agricultural 

component that specifically addresses 

sanitary or phytosanitary risks. C–TPAT 

members’ shipments are subject to 

agricultural inspection regardless of the 

reduced inspection benefits granted by 

membership in the program. Therefore, 

we do not believe it is appropriate to 

exempt C–TPAT members from being 

required to pay the AQI user fee. 

Transition to Full Staffing and 

Inspection Levels 

Several commenters expressed 

concern that the collection of user fees 

does not mean any additional 

inspections will be conducted and 

therefore, stated the user fees are not 

justified. Some of the commenters 

expressed concern that the fees for one 

type of conveyance would be used to 

subsidize inspections on another type of 

conveyance because of what the 

commenters perceived as an apparent 

disparity in user fees charged between 

different conveyances or an apparent 

disparity in the inspection cost 

projections between different 

conveyances. Several commenters on 

the interim rule expressed concern 

regarding the cost projection for the 

initial staffing plan: 65 airport preclearance inspectors in Canada, costing 

$46 million, and 136 inspectors along 

the U.S./Canada border, costing $22.45 

million. 

As stated previously, the staffing plan 

in the interim rule was developed in 

2001 before the transfer of inspection 

duties from APHIS to CBP. We are in 

consultation with CBP regarding their 

staffing plan and are providing 

recommendations to them regarding 

staffing issues. Inspections will be fewer 

and more random until the transition to 

full staffing occurs, but from then on 

will be conducted on a greater number 

of conveyances and agricultural 

products. The apparent disparity in user 

fees or the cost of inspections between 

different conveyance types is due to 

various factors, including the time and 

staff needed to conduct the inspections 

as well as the costs associated with 

staffing inspectors in Canada versus 

inspectors in the United States. Any 

excess of collections over costs remains 

available from year to year in a 

dedicated reserve account to be used 

only to fund agricultural quarantine 

inspection and related program costs. 

We take into account the balance in this 

reserve account, along with our current 

user fees, volumes, and collections 

before increasing or decreasing user 

fees. 

User Fee Costs 

The majority of commenters stated 

that the cost of the user fees is 

excessive. Several commenters 

expressed concern regarding how 

APHIS arrived at the current user fees. 

One commenter asked how APHIS 

could have set user fees in 2004 that 

will be in effect until 2010 when APHIS 

does not know what costs will be in 

2010. 


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As stated previously, the interim rule 

was designed, in part, to recover the 

costs of our current inspection activities 

at the U.S./Canada border. APHIS has 

the authority to collect user fees to fund 

inspections. Until recently, APHIS had 

determined that increased inspections at 

the Canadian border were not necessary. 

However, due to evidence of increased 

pest risk, APHIS believes it is necessary 

to increase its inspection regime at the 

Canadian border and therefore must 

collect user fees to fund those 

inspections. Therefore, we are requiring 

that commercial conveyances from 

Canada and international airline 

passengers arriving on flights from 

Canada be subject to the same 

agricultural quarantine user fees that are 

already charged to commercial 

conveyances and international airline 

passengers arriving in the United States 

from all other foreign countries. To 

calculate the proposed user fees, we 

projected the direct costs of providing 

all AQI services in fiscal years (FY) 2004 

through 2010 (and beyond) for 

international airline passengers and for 

each category of conveyance: 

Commercial vessels, commercial trucks, 

commercial railroad cars, and 

commercial aircraft. The cost of 

providing these services in prior FYs 

served as a basis for calculating our 

projected costs. We then projected our 

costs using economic factors provided 

to us in the economic schedules in the 

President’s budget. In publishing our 

user fees in advance, we are acting on 

behalf of affected industries who 

suggested that they would be able to 

plan for the effects of fee changes more 

effectively if fees were set in advance. 

To the extent that costs of inspections 

and collections of user fees change, we 

retain the option of increasing or 

reducing any of the fees. 

Taxes Versus User Fees 

Some commenters expressed concern 

that the user fees will serve as a new tax 

on cross-border commerce or stated that 

Government funding should be obtained 

to hire additional permanent inspectors 

and acquire other needed resources 

rather than increasing user fees, or that 

appropriations have already addressed 

the need for additional inspectors. 

A tax is money paid by the general 

public to support general Government 

operations. A user fee is money paid for 

a specific Government service by the 

beneficiary of that service and is 

designed to recover the costs of 

providing that service. The AQI user 

fees covered by the interim rule are 

intended to recover the costs of 

providing AQI services for commercial 

vessels, commercial trucks, loaded 

commercial railroad cars, commercial 

aircraft, and international airline 

passengers and are paid by commercial 

vessel companies, commercial truck 

drivers, commercial railroad companies, 

commercial airlines, and international 

airline passengers. As such, our AQI 

user fees are user fees and not taxes. We 

have congressional authority to collect 

these fees. The Food, Agriculture, 

Conservation, and Trade (FACT) Act of 

1990, as amended, authorizes the 

Secretary of Agriculture to prescribe and 

collect fees to cover the cost of 

providing the AQI services covered by 

the interim rule. Although 

appropriations may be used to partially 

fund certain related aspects of the AQI 

program, the FACT Act mandates that 

the majority of the cost must be borne 

by the beneficiaries of the program’s 

services. 

Canadian Costs and Fees 

Two commenters expressed concern 

that the interim rule would cause 

Canada to retaliate by imposing user 

fees on all conveyances crossing the 

border into Canada regardless of 

whether inspections will be carried out. 

Although we understand the 

commenter’s concern, Canada’s actions 

are not under our control. The interim 

rule was implemented to address the 

increased pest risk presented by 

agricultural shipments and conveyances 

from Canada and to provide for full cost 

recovery of our AQI program. The 

conveyances entering the United States 

from Canada are not only Canadianowned; all conveyances, including U.S.- 

owned conveyances, are impacted by 

this rule. Also, we note that the user 

fees have been in effect since 2007. 

Since that time, there have been no 

signs of retaliation by Canada. 

Inspection Costs 

Several commenters stated that 

APHIS does not know what the costs of 

performing inspections are and, 

therefore, asked how APHIS can comply 

with the statutory mandate in 21 U.S.C. 

136a(a)(2) that fees must be 

commensurate with the costs of 

inspections. One commenter expressed 

concern that the interim rule did not 

contain provisions for the adjustment of 

fees if necessary. 

The user fees implemented at the 

U.S./Canada border as a result of the 

interim rule are the same as those 

already in place at our other border 

ports. Those user fees were determined 

by dividing the sum of the costs of 

providing each service by the projected 

number of users subject to inspection, 

thereby arriving at ‘‘raw’’ fees. We then 

rounded the raw fees up to determine 

the user fees. We consider this approach 

adequate in our identification of the 

costs of inspection and related pest 

identification and mitigation activities. 

As APHIS assesses its user fees, 

volumes, collections, and ongoing 

reserve balances, it will initiate 

rulemaking to increase or decrease the 

fees as necessary. We review our fees on 

a biennial basis to ensure that the fees 

charged are commensurate with the 

costs of inspection and inspectionrelated activities and, if necessary, 

undertake rulemaking to amend them. 

We will adjust a fee up or down, as 

appropriate, depending on the actual 

cost of providing services. In most cases, 

we propose user fee increases so that the 

fees will keep up with inflationary costs 

as well as any new costs that must be 

paid. However, we have adjusted user 

fees downward in the past. In a final 

rule published in the Federal Register 

on January 19, 1996, (61 FR 2660–2665 

Docket No. 94–074–2) and effective on 

March 1, 1996, we decreased our AQI 

user fee for commercial aircraft by 13.1 

percent after our cost analysis revealed 

that this fee was too high. 

Decals 

Several commenters expressed 

concern regarding the provision for 

annual decals. One commenter stated 

that if the option to purchase an annual 

decal is available for trucks that it 

should also be extended to all other 

conveyances. Two commenters 

questioned the economic feasibility of 

an annual decal for some importers 

because they do not cross the border 

enough times to justify the cost of the 

decal or because the decal is vehiclespecific. 

Although currently there is not an 

option to purchase an annual decal for 

loaded railroad car and commercial 

vessel border crossings, the regulations 

do contain maximum charge provisions. 

For commercial vessels, the maximum 

user fee is 15 times the AQI user fee per 

arrival. For loaded railroad cars, the 

maximum user fee is 20 times the AQI 

user fee per arrival. The maximum 

charge provisions provide the same 

benefits to users as a decal in instances 

where issuing a decal may not be 

feasible due to difficulty in 

electronically reading the decal on a 

particular type of conveyance or how 

user fees are collected for a particular 

conveyance. 

Air Industry—Two AQI User Fees 

One commenter asked why air 

transport is subject to two fees (cargo 

and passenger) when other modes of 

transport are only subject to cargo fees. 

The commenter also asked why all 


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2See the rule published in the Federal Register 

(56 FR 8148–8156) on February 27, 1991. 

aircraft are subject to the same aircraft 

fee, regardless of whether they are cargo 

or passenger aircraft. 

Except as otherwise noted, the fees 

charged to commercial conveyances 

from Canada and international airline 

passengers arriving on flights from 

Canada are the same fees already 

charged to commercial conveyances and 

international airline passengers arriving 

in the United States from all other 

foreign countries. As mentioned 

previously, all passenger aircraft 

originating in any country with 64 or 

fewer seats and that do not carry certain 

regulated articles are already exempt 

from paying the aircraft AQI user fee. 

The passenger fee pays the costs of 

inspecting passengers and passenger 

baggage, the aircraft galley including 

garbage, the passenger compartment and 

the baggage hold, while the commercial 

aircraft fee pays the costs of inspecting 

the aircraft, excluding the areas covered 

under the passenger fee, and the crew 

and cargo. 

Legality 

Many commenters stated that the 

interim rule is contrary to bilateral 

efforts and political commitments 

between the United States and Canada 

or broader international agreements and 

serves to undermine them. 

APHIS has been in discussions with 

Canadian officials for many years 

regarding agricultural risk from 

agricultural products, commercial 

conveyances, and air passengers 

arriving in the United States from 

Canada. We have also established 

workgroups with Canada to discuss 

enhancements within their agricultural 

programs to complement the U.S. pest 

interdiction and prevention programs. 

When the original user fee rules were 

implemented and the exemption for 

Canadian conveyances made, we 

considered commercial conveyances 

and agricultural shipments from Canada 

to have a risk profile similar to that of 

products and conveyances from the 

United States.2 As a result of this 

assumption, few inspections were 

conducted at the Canadian border, 

However, recent trends have shown that 

this assumption about risk is no longer 

true and inspections have increased 

accordingly. Therefore, in order to 

recover the costs of the existing 

inspection program and to implement 

an expanded inspection program, we 

determined the removal of the 

inspection and user fee exemption was 

necessary. 

Basis of the Rule 

Several commenters questioned the 

basis of the rule, asking for risk 

assessments, pest survey data, or other 

information to support the rulemaking. 

Our decision to implement the 

interim rule was based on the fact that 

we were conducting inspections on the 

U.S./Canada border during which we 

were detecting exotic and dangerous 

pests, and were not recovering the costs 

of these inspections. For example, U.S. 

inspectors have intercepted fruit flies on 

mangoes from Mexico and Morocco, 

longans and litchis from various Asian 

countries, citrus from Spain, Spondia 

spp. from Mexico, Acanthocereus spp. 

from China, and Musa spp. from India 

that were shipped from those countries 

to the United States via Canada. In each 

case, the material was from a country 

other than Canada and was re-labeled as 

a product of Canada and then shipped 

to the United States to take advantage of 

the exemption from AQI user fees for 

Canadian fruits and vegetables. 

Therefore, we determined that the 

inspection exemption for fruits and 

vegetables from Canada needed to be 

removed to allow for regular inspections 

at the border and that AQI user fees 

were needed to recover the costs of our 

ongoing inspection activities. We 

provide more examples/data in our 

Final Regulatory Flexibility Analysis 

that illustrate the risks associated with 

material imported from Canada that 

originated in Canada and countries 

other than Canada. We reiterate that the 

interim rule merely subjected users 

entering the United States from Canada 

to the same user fees that are already 

being charged to users entering from all 

other countries. 

Emergency Rulemaking 

Many commenters expressed 

concerns regarding the use of emergency 

rulemaking rather than engaging in talks 

with interested entities and that the 

interim rule’s comment period ended on 

the same day as its implementation. 

Several commenters stated that the 

delay in implementing the rule 

illustrates that the rule was not justified 

as an emergency action. 

APHIS has been in discussions with 

Canadian officials for many years 

regarding the risk from agricultural 

shipments and commercial conveyances 

from Canada. We value our relationship 

with our Canadian partners, and we 

continue to communicate with our 

partners regarding how best to improve 

mitigation activities as well as to 

determine where harmonization of 

regulatory actions between the United 

States and Canada may be appropriate. 

Because the interim rule removed the 

inspection exemption for imported 

fruits and vegetables grown in Canada 

and commercial conveyances from 

Canada in order to prevent the 

introduction of plant pests and animal 

diseases into the United States and 

removed the user fee exemption for 

Canada in order to recover the costs of 

the needed inspections, we found good 

cause to publish the rule without a prior 

proposal. However, affected industries 

and the general public did have an 

opportunity to comment on the interim 

rule following its publication. The 

effective date of the interim rule was 

delayed in response to strong industry 

requests for more time to prepare for the 

implementation of the AQI user fees and 

to allow time to coordinate the 

additional inspections and collection of 

fees with CBP. 

One of the difficulties in mitigating 

the risk of plant pests entering the 

United States is ensuring that loaded or 

unloaded railroad cars and trucks that 

previously carried shipments of nonCanadian origin (i.e., third country 

origin) cargo are not infested with pests 

at the time they enter the United States. 

After the interim rule was published, 

APHIS met on several occasions with 

individual companies and industry 

groups that operate across the land 

border to discuss agricultural risks 

associated with rail and truck supply 

systems. In particular, we hoped to 

obtain further information regarding the 

use of containers which previously 

hauled high risk non-Canadian 

products. However, we were unable to 

obtain such information. 

Miscellaneous Comments 

One commenter stated that it is 

impermissible for the Department of 

Agriculture to charge user fees on behalf 

of another agency since CBP conducts 

the inspections rather than the 

Department of Agriculture. Another 

commenter stated that collection of user 

fees adds an additional clerical function 

on border officers and that not only is 

it time-consuming, but that it requires 

additional recordkeeping and financial 

controls. 

While the Homeland Security Act of 

2002 transferred certain AQI activities 

from APHIS to CBP, including 

conducting inspections, the 

management of the AQI user fee 

account, setting fees, and monitoring 

inspection related expenses and 

collections continues to be APHIS’ 

responsibility. Since CBP is currently 

collecting customs fees, the collection of 

AQI user fees does not present an 

additional clerical function because the 

AQI user fees are collected at the same 


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time as CBP customs fees. In addition, 

as had been the case prior to the interim 

rule, CBP continues to conduct 

inspections and collect AQI user fees at 

the Mexican border without any 

collection-related delays. Likewise, we 

are not aware of any collection-related 

delays at the Canadian border since 

implementation of the interim rule. 

Comments Regarding the Economic 

Analysis 

Several commenters expressed 

concerns regarding the economic 

analysis for the rule, particularly the 

accuracy of user fee collection and cost 

estimates, and asked for a detailed costbenefit analysis. Several commenters 

stated that because we did not provide 

a quantitative comparison of expected 

benefits and costs of the rule, APHIS 

failed to satisfy the requirements of 

Executive Order 12866. One commenter 

cited the information we presented 

indicating that most motor carriers 

qualify as small businesses and stated 

that, because of this, APHIS should 

reevaluate the effect of the user fees. 

Our economic analysis included a 

cost-benefit analysis and evaluated the 

economic impacts on small entities with 

the best information available at that 

time. In this final rule, we have 

provided an updated final economic 

analysis. The commenters are correct in 

that we are unable to quantitatively 

project the benefits that will be 

attributable to the November 2006 

interim rule and this final rule in terms 

of the reduced risk of animal and plant 

pests and diseases entering from 

Canada. It is difficult to determine the 

animal and plant pests and diseases that 

may be present in Canada or that may 

travel through Canada destined for the 

United States. It is also difficult to trace 

infestations already established in the 

United States back to their point of 

origin. However, we do know that these 

risks are genuine. U.S. agriculture and 

other sectors of the economy are 

unfortunately well acquainted with the 

costs of pest or disease introductions 

when interception fails, given the large 

public and private expenditures devoted 

to ongoing animal and plant pest control 

and eradication programs. 

Although we are not able to quantify 

the benefits of this rule, we are 

confident that the benefits of this rule 

(costs forgone because the resources 

made available will help prevent pest 

and disease entry from Canada) will 

outweigh its costs. This conclusion 

satisfies a principal requirement of 

Executive Order 12866. In addition, 

Executive Order 12866 does not require 

that benefits and costs be quantified, 

only that they be evaluated as 

completely as possible. 

Alternatives Suggested by Commenters 

Many commenters suggested 

alternatives to the interim rule. One of 

these suggestions was to require permits 

and phytosanitary certificates for 

agricultural goods from Canada that are 

imported into the United States. 

Another suggestion was to utilize 

preclearance systems to inform CBP 

about shipment information before 

arrival at the border in order to target 

inspections toward shipments of 

presumed greater risk. A third 

suggestion was to conduct inspections 

closer to the third-country source, such 

as at the production facility, because 

third-country products seem to hold the 

most risk. 

While permits, phytosanitary 

certificates, and preinspection systems 

are valuable ways to gain information 

about shipments before arrival, they do 

not prevent plant pest hitchhikers from 

attaching themselves to vehicles or 

shipments, or prevent importers from 

falsifying information or adding 

additional items to shipments before 

crossing the border. Therefore, 

inspection at the border would still be 

necessary to ensure that any such 

systems are working as intended. In 

addition, because pathways change, it is 

necessary to continue to monitor the 

flow of imports to ensure that 

agricultural pests are not entering the 

country via previously unknown means. 

Therefore, inspections at the border 

would still be necessary to mitigate risk. 

APHIS is continually working with 

Canadian officials to explore ways to 

lower and control pest risk. 

Therefore, for the reasons given in the 

interim rule and in this document, we 

are adopting the interim rule as a final 

rule with the changes discussed in this 

document. 

Effective Date 

We are making final, with certain 

changes, an interim rule published in 

the Federal Register on August 25, 

2006, that amended the foreign 

quarantine and user fee regulations by 

removing the exemption from 

inspection for imported fruits and 

vegetables grown in Canada and the 

exemptions from user fees for 

commercial vessels, commercial trucks, 

commercial railroad cars, commercial 

aircraft, and international air passengers 

entering the United States from Canada. 

Certain provisions of the interim rule 

became effective on January 1, 2007, 

and on March 1, 2007, with the 

remainder becoming effective on June 1, 

2007. The changes in this final rule 

include user fee exemptions for railroad 

cars that are part of a train that 

originates and terminates in Canada 

where no passengers embark or 

disembark and no cargo is loaded or 

unloaded while in the United States and 

vessels traveling to Canada only to 

refuel. In addition, this final rule 

exempts from user fees barges that carry 

non-containerized cargo that originates 

only in the United States or Canada and 

that does not carry any plants or plant 

products, animals or animal products, 

or soil or quarry products from areas in 

Canada regulated for gypsy moth. 

Because this final rule provides 

specified exemptions from user fees and 

thus relieves restrictions, the 

Administrator has determined that this 

rule can be made effective less than 30 

days after publication in the Federal 

Register. 

Executive Order 12866 and Regulatory 

Flexibility Act 

This rule has been determined to be 

significant for the purposes of Executive 

Order 12866 and, therefore, has been 

reviewed by the Office of Management 

and Budget. 

We have prepared an economic 

analysis for this final rule. It provides a 

cost-benefit analysis as required by 

Executive Order 12866, as well as a final 

regulatory flexibility analysis that 

considers the potential economic effects 

of this final rule on small entities, as 

required by the Regulatory Flexibility 

Act. The economic analysis is 

summarized below. Copies of the full 

analysis are available on the 

Regulations.gov Web site (see footnote 1 

in this document for a link to 

Regulations.gov) or by contacting the 

person listed under FOR FURTHER

INFORMATION CONTACT. 

We are adopting as a final rule, with 

the changes discussed in this document, 

an interim rule that amended the foreign 

quarantine and user fee regulations by 

removing the exemptions from 

inspection for certain agricultural 

products imported from Canada and the 

exemptions from user fees for 

commercial vessels, commercial trucks, 

commercial railroad cars, commercial 

aircraft, and international air passengers 

entering the United States from Canada. 

As a result of that action, all agricultural 

products imported from Canada are 

subject to inspection, and commercial 

conveyances, except as otherwise noted, 

as well as airline passengers arriving on 

flights from Canada, are subject to user 

fees. 

Expected Benefits 

The objectives of the amended 

regulations were to expand and 


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strengthen our pest exclusion and 

smuggling interdiction efforts at the 

Canadian border by subjecting all 

agricultural products and all 

commercial conveyances, with certain 

exceptions established by this rule, to 

inspection and to enable the Federal 

Government to recover the cost of those 

inspections through user fees. In 1991, 

APHIS established AQI user fees for 

inspections of commercial conveyances 

and international air passengers arriving 

in the United States from all foreign 

countries except Canada. The 

exemption of Canada from the AQI user 

fees was based on our understanding 

that conveyances and passengers from 

Canada posed little risk of introducing 

plant or animal pests or diseases into 

the United States. Since 1991, the 

nominal value of U.S. agricultural 

imports from Canada has increased over 

fourfold, from $3.3 billion in 1991 to 

$15.2 billion in 2007. In addition, with 

the globalization of trade, shipments of 

re-exported agricultural products that 

originate in countries other than Canada 

but enter from Canada into the United 

States have increased significantly. For 

example, total exports of fruits and 

vegetables to the United States from 

Canada increased by 167 percent over 

the 10-year period between 1998 and 

2007, while Canada’s re-export of fruits 

and vegetables to the United States 

increased by 738 percent during this 

same period. In addition to the growing 

volume of legitimate re-exports, there is 

incentive to commingle third-country 

goods with Canadian-produced goods 

because of lower U.S. tariffs for goods 

for Canadian origin. Opportunities to 

smuggle goods across the border also 

have increased as the volume of 

commercial traffic and number of air 

passengers have grown. 

Emergency Action Notifications 

(EANs) issued illustrate the increasing 

risks associated with the agricultural 

products entering from Canada. An EAN 

is an APHIS form used by CBP to 

communicate to importers the sanitary 

or phytosanitary reasons for an 

emergency action and what the action 

entails, such as treatment, re-export, or 

destruction of the goods. The EAN 

records indicate an increasing number 

of emergency actions related to 

agricultural goods entering from 

Canada. For example, during FY 2007, 

a total of 1,193 EANs were issued for 

products shipped from Canada to the 

United States. Nine hundred thirty-three 

of these EANs (or 78 percent) were 

issued for Canadian products and 260 

(22 percent) were issued for products of 

non-Canadian origin. As 22 percent is 

substantially higher than the 5 percent 

of Canada’s fruit and vegetable 

shipments to the United States in 2007 

that were re-exports, this represents a 

disproportionately high quantity of 

EANs for re-exports in comparison to 

the total number of EANs issued for 

shipments from Canada. 

Among EANs issued for re-exported 

products, 126 EANs were for products 

that originated in Asia and 62 EANs 

were for products that originated in 

regions south of the United States, i.e., 

Mexico, Central America, and South 

America. In FY 2007, 55 countries other 

than Canada were reported as countries 

of origin on EANs for products entering 

from Canada. Altogether, over 100 pest 

species were intercepted in FY 2007 and 

FY 2008. Examples of intercepted pests 

are the Mexican fruit fly (Anastrepha 

ludens Loew (Tephritidae)), found in 

containers that originated in Mexico, 

and the gypsy moth (Lymantria dispar 

Linnaeus (Lymantriidae)), found in 

shipments of firewood of Canadian 

origin. 

Data generated by the Agricultural 

Quarantine Inspection Monitoring 

(AQIM) program also illustrate a greater 

sanitary and phytosanitary risk 

associated with agricultural products 

that enter the United States from Canada 

than anticipated when we first 

established AQI user fees and exempted 

Canada from those fees. Under the 

AQIM program, CBP agricultural 

inspectors conduct random inspections 

within each major pathway to assess 

their relative risk, and APHIS–PPQ 

monitors the collected data. AQIM 

keeps track of Quarantine Material 

Interceptions (QMIs), which are 

regulated agricultural materials seized 

because of prohibition, permit denial, 

pest risk, or abandonment. Approach 

rates, defined as the number of QMIs as 

a percentage of the number of 

conveyances inspected, for commercial 

trucks at the U.S./Canada border show 

a substantial 1-year increase in 

interceptions, from 0.68 percent of 

trucks sampled in FY 2006 to 1.73 

percent of trucks sampled in FY 2007. 

This increase cannot be explained by an 

increase in the rate of inspection for FY 

2007 over FY 2006. Applying the FY 

2007 approach rate of 1.73 percent to 

the 6.6 million trucks that CBP reports 

as having entered the United States from 

Canada that year, implies that over 

100,000 of the trucks may have been 

carrying quarantine material. 

As an example of the risk of foreign 

pest introduction, plum pox is a disease 

that was introduced into the United 

States. It is a devastating viral disease of 

stone fruit, such as peaches, apricots, 

plums, nectarines, almonds, and 

cherries. It is transmitted within an 

orchard by aphids and over long 

distances through the movement of 

infected nursery stock, propagative 

material, and fruit. The plum pox virus 

first appeared in the United States in 

Pennsylvania in October 1999. In 2006, 

it was detected in New York and 

Michigan. APHIS established an 

eradication program to prevent the 

spread of plum pox to noninfested areas 

of the United States. Since 2000, APHIS 

has set aside $50.7 million to address 

plum pox disease. We do not have 

evidence that plum pox was introduced 

from Canada, where it is also known to 

exist. However, the expenses incurred 

because of this disease exemplify the 

types of costs that may be avoided or 

reduced by removing the inspection 

exemption and providing additional 

resources for AQI inspections at the 

U.S./Canada border. 

We are unable to quantify either the 

risk that existed prior to implementation 

of the interim rule, nor the reduction in 

risk following its implementation. Our 

knowledge of the disease and pest 

threats posed by goods entering from 

Canada and the extent to which the AQI 

inspection activities mitigate those 

threats is currently imperfect. Rarely are 

we able to precisely trace an established 

infestation by an invasive species to its 

country of origin. However, we do know 

that these risks are genuine. The 

disproportionately large number of 

EANs issued for shipments of thirdcountry origin and the approach rates 

shown in the AQIM program point to 

significant and growing risks of disease 

and pest introduction. The intentional 

or unintentional commingling of 

products of third-country origin with 

goods of Canadian origin heightens 

these risks. Outright smuggling of goods 

across the U.S./Canada border is also a 

growing threat due to the increasing 

volume of commodities and number of 

travelers that cross the border into the 

United States each year. U.S. agriculture 

and other sectors of the economy are 

unfortunately well acquainted with the 

costs associated with pest and disease 

introductions when interception fails. 

Large public and private expenditures 

have been devoted to animal and plant 

pest and disease control and eradication 

programs, as exemplified by the costs of 

plum pox. This rulemaking will enable 

us to increase our inspections and 

targeting activities at the U.S./Canada 

border. The inspections will help 

safeguard against the risk of pest and 

disease introductions and, therefore, 

reduce agricultural losses and 

expenditures for pest and disease 

control and eradication. The regulations 


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3The railroad cars are required to be part of the 

same train when they return to Canada. The current 

AQI user fee regulations (7 CFR 354.3) provide a 

similar exemption for all U.S. railroad cars that 

transit Canada or Mexico and return to the United 

States. Sanitary and phytosanitary risks are minimal 

for these types of shipments. 

4Bureau of Transportation Statistics, TransBorder 

Surface Freight dataset, http://www.bts.gov/ 

transborder/. 

5Bureau of Transportation Statistics, North 

American Freight Transportation, June 2006. 

will also allow us to recover the costs 

of these activities. 

Costs of the Rule 

The amended regulations impose a 

direct fee on all commercial 

conveyances crossing the U.S./Canada 

border, except in three instances: (i) 

Barges operating solely between U.S. 

and Canadian ports that carry only bulk 

cargo that does not originate outside of 

the United States or Canada and that do 

not carry any plants or plant products 

or animal or animal products, and that 

do not carry soil or quarry products 

from areas in Canada listed in § 319.77– 

3 as being infested with gypsy moth; (ii) 

railroad cars that are part of a train that 

originates and terminates in Canada and 

that does not load or unload passengers 

or cargo while in the United States; 3

and (iii) vessels returning to the United 

States after traveling to Canada solely to 

take on fuel. 

In the preliminary economic analysis 

for the interim rule, we noted the 

possibility of shipping delays because of 

the AQI inspections. Additional cost 

that might arise due to shipping delays 

was one of the most frequently raised 

concerns among our stakeholders. CBP 

inspectors are required to inspect 

commercial trucks while maintaining a 

steady traffic flow. CBP performs 

inspections based on risk profiles and 

available resources, as well as 

randomly. 

User Fees 

Four modes of conveyance—trucks, 

railroad cars, maritime vessels, and 

aircraft—and international air 

passengers are assessed AQI user fees, 

as shown in Table 1. 

TABLE 1—AQI USER FEES FOR CONVEYANCES AND AIR PASSENGERS ENTERING THE UNITED STATES, FISCAL YEARS

2007, 2008, AND 2009 

FY 2007 FY 2008 FY 2009 

Maritime vessels ..... $490 per crossing (max 15 payments 

per year).

$492 per crossing (max 15 payments 

per year).

$494 per crossing (max 15 payments 

per year). 

Trucks 1 ................... $5.25 per crossing or $105 per year ... $5.25 per crossing or $105 per year ... $5.25 per crossing or $105 per year. 

Railroad cars 2 ......... $7.75 crossing ...................................... $7.75 per crossing ............................... $7.75 per crossing. 

Aircraft ..................... $70.50 per arrival ................................. $70.50 per arrival ................................. $70.75 per arrival. 

Air passengers ........ $5 per passenger ................................. $5 per passenger ................................. $5 per passenger. 

1Truck operators have the choice of paying per crossing or purchasing a yearly decal. The cost of the yearly decal ($105) is 20 times the fee 

for an individual crossing ($5.25). 2 If the AQI user fee is prepaid for all arrivals of a commercial railroad car during a calendar year, the AQI user fee is an amount 20 times the 

AQI user fee for each arrival. 

Surface conveyances. All trucks and 

trains transporting goods to the United 

States are subject to inspection. A user 

fee of $5.25 per crossing, or $105 per 

year, is charged for each truck, and a fee 

of $7.75 per crossing is charged for each 

loaded railroad car, other than for 

railroad cars in transit, as described 

above. 

Trucks, trains, and all other 

commercial surface conveyances 

transported goods valued at 

approximately $511 billion across the 

U.S./Canada border in 2007, with $285 

billion in imports into the United States 

from Canada and $226 billion in exports 

from the United States to Canada.4

Trucks remain the dominant 

commercial mode of transportation, 

carrying $150 billion in U.S. imports 

and $174 billion in U.S. exports across 

the U.S./Canada border in 2007. That 

same year, railroads transported $66 

billion in U.S. imports and $25 billion 

in U.S. exports across the U.S./Canada 

border. While agricultural shipments are 

generally the focus of AQI inspections, 

all commercial surface conveyances 

crossing the border are subject to 

inspection. 

For commercial trucking, the Small 

Business Administration (SBA) defines 

a small entity as one having not more 

than $25.5 million in annual receipts. 

According to the 2002 Economic 

Census, there were 29,220 general longdistance freight trucking firms in the 

United States (North American Industry 

Classification System [NAICS] code 

484121). A total of 371 of these firms, 

or less than 2 percent, had annual 

receipts of $25 million or more, the 

largest revenue category identified. 

Thus, not less than 98 percent of 

trucking firms in the United States are 

small entities. We do not know the 

number or size of trucking firms that 

transport products across the border 

from Canada, but can reasonably assume 

that they are also mostly small entities. 

For commercial railroad 

transportation, the SBA defines a small 

entity as one having not more than 

1,500 employees for long-haul railroads 

(NAICS code 482111) and not more than 

500 employees for short-line railroads 

(NAICS code 482112). Of the 571 firms 

operating as railroad transportation 

companies in the United States, 18 firms 

employed more than 500 workers. 

Therefore, approximately 97 percent of 

commercial railroad companies in the 

United States are considered small 

entities. We can reasonably assume that 

this percentage applies to railroad 

companies that transport products into 

the United States from Canada. 

Waterborne conveyances. Commercial 

vessels transporting goods to the United 

States (100 net tons or more) are subject 

to inspection. Beginning March 1, 2007, 

waterborne conveyances were charged a 

user fee of $490 per crossing in FY 2007. 

In FY 2008, the fee was $492 per 

crossing, and increased to $494 per 

crossing in FY 2009. Total waterborne 

trade with Canada was valued at $18 

billion in 2005, $14 billion in U.S. 

imports and $4 billion in U.S. exports.5

Commodities transported by waterborne 

conveyances comprised 26 percent of 

total tonnage crossing the U.S./Canada 

border in 2005, with this mode of 

conveyance especially suitable for 

heavy bulk products such as grain and 

crude petroleum. As with the surface 

conveyances, we expect the focus of 

inspections of waterborne conveyances 

to be shipments of agricultural 

commodities. 

For commercial water transportation, 

the SBA defines a small entity as one 


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Federal Register / Vol. 75, No. 45 / Tuesday, March 9, 2010 / Rules and Regulations 10643 

6Transport Canada, Transportation in Canada 

2007 http://www.tc.gc.ca/policy/report/aca/ 

anre2007/pdf/add2007-e.pdf. Exports to the U.S. 

include re-exports and domestic exports. 

7CBP. The data include air passengers and crews. 

8CBP uses an Activity Based Costing (ABC) 

methodology, whereby data are collected from 

various CBP sources and compiled for a cost-ofoperations perspective of the organization. ABC is 

a means of operationally analyzing how an 

organization consumes its resources (direct and 

indirect). The focus is on activities performed 

within given processes. 

having not more than 500 employees. 

According to the 2002 U.S. Economic 

Census for Transportation and 

Warehousing, 724 firms operated in the 

United States providing ‘‘deep sea, 

coastal, and Great Lakes water 

transportation’’ (NAICS codes 483111 

and 483113). Nine of these firms 

employed 500 to 999 employees and 5 

firms employed 1,000 or more 

employees. Thus, over 98 percent of 

water transportation firms in the United 

States employed fewer than 500 workers 

and can be considered small. 

Approximately 1,895 vessels were used 

to move cargo from Canada to the 

United States in 2005. We can assume 

that most if not all of the firms owning 

these vessels are small entities. 

Aircraft and air passengers. All air 

cargo and conveyances arriving in the 

United States are subject to inspection. 

Commercial aircraft were charged a user 

fee of $70.50 per arrival in FY 2008, and 

the user fee was increased to $70.75 in 

FY 2009. The modal share of air cargo 

as a percentage of total U.S. imports 

from Canada steadily declined to 4.1 

percent in 2006, from a peak of 6.6 

percent in 2000. Preliminary data for 

2007 indicate a slight increase in air 

cargo’s modal share, to 4.4 percent.6

All air passengers arriving in the 

United States are charged a user fee of 

$5. In FY 2007, the total number of air 

passengers traveling from Canada to the 

United States was 11.9 million, an 

increase over the previous year and a 

return to pre-9/11 levels for the first 

time.7

For commercial air transportation, the 

SBA defines a small entity as one 

having not more than 1,500 employees. 

According to the 2002 U.S. Economic 

Census for Transportation and 

Warehousing, there were 513 firms in 

the United States classified under 

‘‘scheduled freight air transportation’’ 

(NAICS code 48111), of which only 12 

firms employed more than 1,000 

employees. Thus, about 98 percent of all 

air transportation firms in the United 

States are small. 

Clearly, most of the surface, 

waterborne, and air conveyance entities 

that are directly affected by the rule are 

small, although we do not have precise 

estimates of their numbers. 

Estimated User Fee Collection and 

Federal Expenditures 

Table 2 shows FY 2008 estimated user 

fee collections and expenditures for the 

inspection of conveyances and air 

passengers arriving from Canada. 

Expected AQI expenditures for the U.S./ 

Canada border set forth in this final rule 

differ from those presented in the 

preliminary economic analysis for the 

interim rule. We projected Federal 

expenditures for a single year for the 

interim rule that totaled about $74.8 

million, with about $68.5 million for 

additional CBP staffing and direct 

support, and about $6.3 million for 

indirect support (agency, departmental, 

and other administrative costs). In Table 

2, we explicitly acknowledge the 

complementary roles that CBP and 

APHIS play in fulfilling the AQI 

mission at the U.S./Canada border by 

estimating FY 2008 expenditures 

separately for the two agencies. Broadly 

speaking, CBP is responsible for AQI 

inspection activities, while APHIS is 

responsible for setting policy, providing 

training, and establishing and collecting 

user fees to pay for the CBP inspections. 

As shown in table 2, we estimated FY 

2008 AQI user fee collection to total 

about $89.3 million and Federal 

expenditures for the AQI activities for 

conveyances and air passengers from 

Canada to total about $98.7 million 

(about $78.6 million to fund the CBP 

program and about $20.1 million to 

fund the APHIS program). The CBP 

expenditures are based on the estimated 

volume of inbound border crossings 

from Canada for the various modes of 

conveyance covered by the rule and for 

airline passengers.8 Although our 

estimated figures show a deficit of about 

$9.4 million, a reserve fund is 

maintained to carry on with AQI 

activities in cases of bad debt, carrier 

insolvency, or fluctuations in activity 

volumes. 

APHIS performs a number of 

functions in support of AQI activities at 

the U.S./Canada border that can be 

categorized within the following areas: 

Port operations and policy, science and 

technical support, training for CBP 

agriculture inspectors, import analysis 

and risk management, pest and disease 

identification, and regulatory 

enforcement and anti-smuggling 

programs. The overall cost for APHIS is 

composed of expenditures on these 

various functions. Expenditures for both 

APHIS and CBP also include 

administrative and other overhead costs. 

TABLE 2—ESTIMATED USER FEE COLLECTION AND FEDERAL EXPENDITURES FOR THE U.S./CANADA BORDER AQI SERVICES, FY 2008 (MILLION DOLLARS) 

AQI user fee collection ....................... $89.3 

CBP expenditure ................................ 78.6 

APHIS expenditure ............................. 20.1 

Total Federal expenditures ............. 98.7 

Sources: APHIS–Financial Management Division, CBP–Budget Cost Management Division, APHIS–PPQ and APHIS–Budget & Program Analysis. 

Alternatives 

Four possible alternatives to the 

interim rule were identified, none of 

which would accomplish the objectives 

of the rule or minimize effects for small 

entities. 

One alternative would have been to 

make no changes to the current 

regulations. However, inspections along 

the U.S./Canada border have resulted in 

an increasing number of interceptions of 

prohibited material that originated from 

countries other than Canada. The 

growth in imports and in the number of 

air passengers arriving from Canada has 

placed increased demands on CBP staff 

at U.S./Canada border ports and 

airports. This rule is necessary in order 

to strengthen our AQI activities and 

lessen the risk of introduction of plant 

and animal pests and diseases. 

Removing the Canadian exemption from 

AQI user fees is necessary to recover the 

costs of our existing inspection 

activities and to implement an 

expanded inspection program. 

Another alternative to the interim rule 

would have been to limit our 

inspections to commercial conveyances 

and not include international 

passengers entering the United States 

from Canada in the AQI inspection 

program. However, results of AQI 

preclearance activities at Canadian 

airports have demonstrated that air 

passengers from Canada represent an 

important pest pathway. As stated in the 

full economic analysis, data gathered at 

four airports (Calgary, Toronto, 

Vancouver, and Montre ́al) over a fouryear period (FY 2001–FY 2004) showed 

that over 6 percent of all U.S.-bound 

passengers (Canadian and non-Canadian 

origin) carried prohibited agricultural 

products. Most of these passengers were 

taking flights to States such as 

California, Florida, Arizona, and Texas, 

where the prohibited products could 

place major agricultural industries at 


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10644 Federal Register / Vol. 75, No. 45 / Tuesday, March 9, 2010 / Rules and Regulations 

9APHIS–PPQ, AQI Monitoring (AQIM) program. 

For the AQIM program, CBP agricultural inspectors 

conduct random inspections within each major 

pathway to assess their relative risk, and APHIS– 

PPQ monitors the collected data. PPQ and CBP use 

the AQIM data to evaluate the effectiveness of portof-entry operations, set goals, and compare 

performance after making operational changes. The 

AQIM program was instituted to assist with the 

mandate of the Government Performance and 

Results Act (GPRA) of 1993. Source: APHIS AQIM 

Handbook. 

risk.9 Air passengers from all foreign 

countries, not just Canada, are 

considered important pest pathways 

due to the fact they may travel to 

multiple destinations in one trip and 

travel great distances over a relatively 

short amount of time. Therefore, it is 

necessary for all air passengers, 

including Canadian air passengers to be 

subject to AQI user fees. In addition, in 

surveys and inspection blitzes 

conducted on passenger baggage at 

destination airports in the United States, 

significant amounts of prohibited 

agricultural materials were found, such 

as tropical and exotic fruits and 

vegetables purchased at Canadian 

markets, as well as prohibited animal 

products. We would not be able to 

prevent or control the movement of 

such regulated articles into the United 

States if we did not increase our 

passenger inspection activities at 

Canadian airports, along with our 

conveyance inspection activities, at the 

U.S/Canada border. We could not 

recover the costs of passenger 

inspections if we did not charge 

passengers AQI user fees. 

A third alternative would have been 

to only charge AQI user fees for 

inspections of commercial conveyances 

transporting agricultural goods. This 

alternative would eliminate impacts on 

conveyances that do not transport 

agricultural goods by eliminating the 

need for them to pay user fees. 

However, animal and plant pests may be 

found on or in conveyances even if they 

are not carrying agricultural products 

and even if they are empty. For 

example, solid wood packing material, 

estimated to be present in some 70 

percent of all Canadian rail containers, 

can be a pathway for the Asian and 

citrus longhorned beetles, pine shoot 

beetle, emerald ash borer, and other 

pests. In addition, restricted 

nonagricultural products, such as Italian 

tile shipments that could be carrying 

hitchhiking snails, seat cushions stuffed 

with restricted grasses, or wooden 

handicrafts that could be harboring 

wood-boring insects pose a risk to 

American agriculture if they enter the 

United States. Therefore, APHIS 

employees familiar with the risks 

presented by the conveyances 

themselves and by containers importing 

nonagricultural products determined 

that it is necessary for all conveyances 

from Canada to be inspected. In order to 

recover the costs of these inspections, 

AQI user fees would still be necessary, 

except as otherwise noted. 

A fourth alternative would have been 

to develop new user fees specific to 

Canada that would be different from the 

user fees charged to all other countries. 

However, we concluded that it was not 

a valid alternative as our intention in 

the interim rule was to harmonize the 

inspection requirements and the AQI 

user fees charged for conveyances 

entering the United States from Canada 

with the inspections and AQI user fees 

for conveyances entering the United 

States from all other countries in the 

world. In addition, we have determined 

that charging different user fees specific 

to Canada would result in potential 

delays and increased expenses as a new 

collection system would have to be 

developed and implemented to collect 

those fees. 

Executive Order 12988 

This rule has been reviewed under 

Executive Order 12988, Civil Justice 

Reform. This rule: (1) has no retroactive 

effect and (2) does not require 

administrative proceedings before 

parties may file suit in court challenging 

this rule. 

Paperwork Reduction Act 

This final rule contains no 

information collection or recordkeeping 

requirements under the Paperwork 

Reduction Act of 1995 (44 U.S.C. 3501 

et seq.). 

List of Subjects in 7 CFR Part 354 

Animal diseases, Exports, 

Government employees, Imports, Plant 

diseases and pests, Quarantine, 

Reporting and recordkeeping 

requirements, Travel and transportation 

expenses. 

■ Accordingly, the interim rule 

amending 7 CFR parts 319 and 354 that 

was published at 71 FR 50320 on 

August 25, 2006, is adopted as a final 

rule with the following changes: 

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. Section 354.3 is amended as 

follows: 

■ a. In paragraph (a), by adding a 

definition for barge to read as set forth 

below. 

■ b. In paragraph (b)(2)(iv), by removing 

the word ‘‘bunkers’’ and adding the 

word ‘‘fuel’’ in its place. 

■ c. By adding new paragraphs 

(b)(2)(vi), (b)(2)(vii), and (d)(2)(i) to read 

as set forth below. 

§ 354.3 User fees for certain international 

services. 

(a) * * * 

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. 

* * * * * 

(b) * * * 

(2) * * * 

(vi) Barges traveling solely between 

the United States and Canada that do 

not carry cargo originating from 

countries other than the United States or 

Canada and do not carry plants or plant 

products, or animals or animal 

products, and that do not carry soil or 

quarry products from areas in Canada 

listed in § 319.77–3 of this chapter as 

being infested with gypsy moth. 

(vii) Vessels returning to the United 

States after traveling to Canada solely to 

take on fuel. 

* * * * * 

(d) * * * 

(2) * * * 

(i) Any commercial railroad car that is 

part of a train whose journey originates 

and terminates in Canada if— 

(A) The commercial railroad car is 

part of the train when the train departs 

Canada; 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 the United States. 

* * * * * 

Done in Washington, DC, this 3rd day of 

March 2010. 

Edward Avalos, 

Under Secretary for Marketing and Regulatory 

Programs. 

[FR Doc. 2010–4949 Filed 3–8–10; 8:45 am] 

BILLING CODE 3410–34–P 


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