```

[Federal Register Volume 70, Number 190 (Monday, October 3, 2005)]
[Rules and Regulations]
[Pages 57486-57487]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 05-19689]

=======================================================================
-----------------------------------------------------------------------

DEPARTMENT OF AGRICULTURE

Animal and Plant Health Inspection Service

9 CFR Part 93

[Docket No. 02-024-2]

Stall Reservations at Import Quarantine Facilities

AGENCY: Animal and Plant Health Inspection Service, USDA.

ACTION: Affirmation of interim rule as final rule.

-----------------------------------------------------------------------

SUMMARY: We are adopting as a final rule, without change, an interim 
rule that amended the regulations regarding the importation of horses 
into the United States by requiring persons who cancel reservations for 
stall space at import quarantine facilities to notify us earlier and by 
increasing the fee for canceling reservations.

DATES: The interim rule became effective on December 9, 2002.

FOR FURTHER INFORMATION CONTACT: Dr. Freeda Isaac, Senior Staff 
Veterinarian, Technical Trade Services, VS, APHIS, 4700 River Road Unit 
39, Riverdale, MD 20737-1231; (301) 734-8364.

SUPPLEMENTARY INFORMATION:

Background

    In an interim rule effective and published in the Federal Register 
on December 9, 2002 (67 FR 72827-72830, Docket No. 02-024-1), we 
amended the regulations in 9 CFR part 93 regarding the importation of 
horses into the United States by requiring persons who cancel 
reservations for stall space at import quarantine facilities to notify 
us earlier and by increasing the fee for canceling reservations. Under 
the new fee structure, persons who cancel a reservation 30 business 
days or more prior to the reservation date will be charged 25 percent 
of the reservation fee; persons who cancel a reservation 15 to 29 
business days prior to the reservation date will be charged 50 percent 
of the reservation fee; and persons who cancel a reservation less than 
15 business days prior to the reservation date will forfeit 100 percent 
of the reservation fee. We took that action to discourage importers 
from reserving space that they may not use and canceling when it is too 
late for others to use the space and to recover the fixed cost 
associated with operating quarantine facilities when stall space goes 
unused. This interim rule was intended to improve the occupancy rate of 
stall space, and, therefore, the efficiency of import quarantine 
facilities.
    Comments on the interim rule were required to be received on or 
before February 7, 2003. We received three comments by that date. The 
comments were from a horse industry group, a transportation 
association, and a transport company. We have carefully considered all 
of the comments we received. They are discussed below.

    Note: In the ``Background'' section of the interim rule, we 
stated that brokers are required to have certain diagnostic tests 
performed on their horses and that these tests must be processed at 
National Veterinary Services Laboratories (NVSL). Some commenters 
interpreted this statement to mean that we were requiring that 
horses be pretested for the diseases dourine, glanders, 
piroplasmosis, and infectious equine anemia and that this pretesting 
be performed at NVSL. That perception is incorrect. Pretesting is 
not a requirement but may be done at the discretion of the importer 
or agent. If pretesting is done, importers may utilize NVSL. the 
Animal and Plant Health

[[Page 57487]]

Inspection Service (APHIS) will conduct its own tests during 
quarantine.

    Two commenters said that the new cancellation policy unnecessarily 
penalizes those who reserve stall space early and are then required to 
make legitimate alterations to their bookings. The commenters asked 
that we consider implementing a small administrative fee for changes 
made more than 30 days prior to the reservation date.
    The purpose of the interim rule was to discourage horse brokers 
from making several reservations and simply forfeiting the $40 
cancellation fees if a client is not found to fill those reserved 
spaces. This situation had led some brokers to complain that the 
potential loss of a $40 cancellation fee is not an effective deterrent 
to prevent brokers from reserving stall space before a client is found. 
Since the publication of our December 2002 interim rule, the problem of 
late cancellations has been eliminated. We believe that instituting the 
suggested small fee for canceled reservations would result in a 
situation similar to the one that existed prior to publication of the 
interim rule.
    All three commenters stated that a policy should be enacted wherein 
stall space in a horse quarantine facility may be formally transferred 
from one party to another within 15 days of arrival.
    Shipments arriving at quarantine facilities are comprised of horses 
from several different brokers. As such, the suggested formal transfer 
policy would require a continual monitoring policy, along with the 
accompanying paperwork. Such an approach potentially involves a great 
amount of time, personnel, and expense for all affected parties. As 
such, this method is not cost effective, nor would it eliminate the 
practice of speculative reservation.
    Two commenters said that the grace period within which shipments 
may arrive without incurring cancellation fees should be extended from 
24 to 48 hours.
    Under the regulations in effect prior to the December 2002 interim 
rule, we required 5 business days' notice for cancellations in order 
for importers to avoid forfeiture of the total reservation fee. As a 
result of the interim rule, we, among other things, established a 
graduated fee schedule for cancellations. Importers or their agents are 
now required to present for entry, within 24 hours following the 
designated time of arrival, the horse for which the reservation was 
made. In our opinion, increasing the time period within which importers 
must present their horses would lead to a reintroduction of past 
speculative reservation practices. The regulations in Sec.  
93.304(a)(3)(iv) provide for the return of reservation fees to 
importers in certain cases when unforseen circumstances arise that 
prevent an importer from presenting a horse for entry within the 
required time period.
    One commenter said that the forfeiture amounts as established in 
the graduated fee schedule set for cancellations are too high.
    Prior to publication of the interim rule, we carefully considered a 
fee schedule that we thought to be appropriate and effective in 
eliminating the practice of speculative reservations. The USDA 
quarantine facilities in Florida and New York each lost approximately 
$300,000 to $470,000 yearly in forgone user fees. While we recognize 
that increasing cancellation fees and the time period required for 
cancellation affects both horse owners and brokers, the forfeiture 
amounts must necessarily be set at a level that will serve as a 
meaningful deterrent to speculative reservation-making and allow APHIS 
to recover the fixed cost associated with operating quarantine 
facilities when stall space goes unused.
    Two commenters stated that there is a need to specifically create a 
set of circumstances under which a full refund of the reservation fee 
would be granted, suggesting that a refund would be appropriate in 
cases where an airline cancels a flight or a horse is injured during 
loading.
    The regulations already describe the circumstances under which a 
full refund may be granted. As stated previously, under the regulations 
at Sec.  93.304(a)(3)(iv), a reservation fee will not be forfeited if 
the Administrator determines that certain essential services were not 
available at the necessary time as a result of unforseen circumstances. 
These circumstances include, but are not limited to, the closing of an 
airport due to inclement weather or the unavailability of the reserved 
space due to the extension of another quarantine. We believe it is 
appropriate and necessary to limit refunds to the circumstances 
relating to services, other than those provided by carriers, necessary 
for the importation of the horses within the required period that are 
unavailable because of unforeseen circumstances as determined by the 
Administrator.
    Likewise, the issuance of refunds, as may be necessary in the 
situations described above, is based somewhat on the Administrator's 
discretion. As such, we believe that any attempt to list all instances 
where a refund would be granted would unnecessarily limit the 
Administrator's ability to make determinations in a wide variety of 
circumstances. It is necessary to leave the exception as written in 
order to preserve the flexibility of the regulations.
    Therefore, for the reasons given in the interim rule and in this 
document, we are adopting the interim rule as a final rule without 
change.
    This action also affirms the information contained in the interim 
rule concerning Executive Order 12866 and the Regulatory Flexibility 
Act, Executive Order 12988, and the Paperwork Reduction Act.
    Further, this action has been determined to be not significant for 
the purposes of Executive Order 12866 and, therefore, has not been 
reviewed by the Office of Management and Budget.

List of Subjects in 9 CFR Part 93

    Animal diseases, Imports, Livestock, Poultry and poultry products, 
Quarantine, Reporting and recordkeeping requirements.

PART 93--IMPORTATION OF CERTAIN ANIMALS, BIRDS, AND POULTRY, AND 
CERTAIN ANIMAL, BIRD, AND POULTRY PRODUCTS; REQUIREMENTS FOR MEANS 
OF CONVEYANCE AND SHIPPING CONTAINERS

0
Accordingly, we are adopting as a final rule, without change, the 
interim rule that amended 9 CFR part 93 and that was published at 67 FR 
72827-72830 on December 9, 2002.

    Done in Washington, DC, this 27th day of September 2005.
Elizabeth E. Gaston,
Acting Administrator, Animal and Plant Health Inspection Service.
[FR Doc. 05-19689 Filed 9-30-05; 8:45 am]
BILLING CODE 3410-34-U
```