2660 Federal Register / Vol. 61, No. 19 / Monday, January 29, 1996 / Rules and Regulations

Naturalization Service (INS) in

regulations located at 8 CFR Part 210a.

In each of the three years during the

RAW program was authorized, the

Secretaries found the shortage number

to be zero and no alien workers were

granted benefits under the program.

As the statutory authority for the

RAW program ha expired and Congress

has given no indication that the program

will be reauthorized, USDA believes

that it is appropriate to remove the

implementing regulations.

This regulatory action is being taken

as part of the National Performance

Review program to eliminate

unnecessary regulations and improve

those that remain in force.

List of Subjects in 7 CFR Part 1e

Agriculture, Aliens, Immigration,

Labor, Migrant workers, Rural labor.

PART 1e—[REMOVED]

Accordingly, under the authority of 8

U.S.C. 1161, Part 1e of title 7, subtitle

A, of the Code of Federal Regulations is

removed.

Done at Washington, DC, this 19th day of

January, 1996.

Keith J. Collins,

Chief Economist.

[FR Doc. 96–1294 Filed 1–26–96; 8:45 am]

BILLING CODE 3410–01–M

Animal and Plant Health Inspection

Service

7 CFR Part 354

[Docket No. 94–074–2]

RIN 0579–AA68

User Fees—Commercial Aircraft and

Vessels; Phytosanitary Certificates

AGENCY: Animal and Plant Health

Inspection Service, USDA.

ACTION: Final rule.

SUMMARY: We are amending the user fee

regulations by lowering the fees charged

for certain agricultural quarantine and

inspection services we provide in

connection with the arrival of an

international commercial aircraft at a

port in the customs territory of the

United States. We are also amending the

user fee regulations by raising the fees

charged for export certification of plants

and plant products. We have

determined, based on a review of our

user fees, that the fees must be adjusted

to reflect the actual cost of providing

these services. In addition, we are

amending the user fee regulations to

clarify the exemption for certain vessels

which sail only between the United

States and Canada.

EFFECTIVE DATE: March 1, 1996.

FOR FURTHER INFORMATION CONTACT: For

information concerning program

operations, contact Mr. Don Thompson,

Staff Officer, Port Operations, PPQ,

APHIS, 4700 River Road, Unit 136,

Riverdale, MD 20737–1236, (301) 734–

8295.

For information concerning rate

development, contact Ms. Donna Ford,

PPQ User Fees Section Head, FSSB,

BAD, APHIS, 4700 River Road, Unit 54,

Riverdale, MD 20737–1232, (301) 734–

5901.

SUPPLEMENTARY INFORMATION:

Background

The regulations in 7 CFR 354.3

(referred to below as the ‘‘regulations’’)

contain provisions for the collection of

user fees for certain international

services provided by the Animal and

Plant Health Inspection Service

(APHIS). Among the services covered by

these user fees are: (1) Servicing

international commercial aircraft and

vessels arriving at ports in the customs

territory of the United States; and (2)

certifying plants and plant products for

export.

On May 24, 1995, we published a

document in the Federal Register (60

FR 27437–27441, Docket 94–074–1)

proposing various changes to these

regulations.

We solicited comments concerning

our proposal for 30 days ending June 23,

1995. We received 45 comments by that

date from trade associations connected

with the air travel industry, trade

associations representing various sectors

of the lumber industry, producers in the

lumber, flower, and other plant or plantrelated industries, members of Congress,

and private individuals. The comments

are discussed below by topic.

International Commercial Aircraft

We proposed to amend the user fee

for agricultural quarantine and

inspection (AQI) services provided by

APHIS in connection with the arrival of

an international commercial aircraft at a

port in the customs territory of the

United States. (The customs territory of

the United States is defined in the

regulations as the 50 States, the District

of Columbia, and Puerto Rico.) the

current user fee for services for

international commercial aircraft is $61.

We proposed to lower this user fee from

$61 to $53 for each arrival. We

determined the proposed fee based on a

review of user fees collected in FY 1993

and FY 1994 and a projection of our cost

and revenue for FY 1995. As stated in

our proposal, the lower fee is necessary

to avoid collecting more revenue than

needed to cover the costs of the services

we provide.

Only three comments directly

addressed the proposed fee reduction.

One commenter expressed no ‘‘specific

objection’’ to lowering the fee, but

‘‘[took] exception to * * * lowering the

fee charged * * * while overlooking the

inadequate passenger inspection staffing

levels.’’ A second commenter stated that

‘‘it is almost impossible to reconcile this

proposed reduction with the current

levels of service provided by APHIS

* * *’’. The third commenter expressed

displeasure with our collecting user fees

both from air passengers and from

airlines, and suggested that the

passenger fee alone should be adequate

to cover all costs.

We are not making any changes based

on these comments. The inspection

service provided to airline passengers is

different than the inspection service

provided for aircraft. We therefore

charge separate user fees for these

services. Aircraft user fees are paid by

the airlines, passenger user fees are paid

by the individual passengers, and the

amount of each fee is based on the cost

of providing each service.

All government agencies are currently

under mandate to reduce staff year

ceilings, i.e. the number of employees.

We have no plans to reduce the staff

year ceilings in the AQI program and we

are considering ways to increase such

staff year ceilings. However, we would

have to review any increases carefully to

ensure sufficient staffing in other APHIS

and U.S. Department of Agriculture

programs.

One commenter stated that the

commercial aircraft inspection fee is

‘‘contrary to and inconsistent with the

international obligations of the United

States, and thus must be withdrawn.’’

The comment suggested that this APHIS

user fee violates the Convention on

International Civil Aviation (‘‘Chicago

Convention’’) and certain specified

bilateral air transport service agreements

and treaties, such as the U.S. Air

Transport Agreement with Italy. The

comment stated that this issue has been

raised in previous rulemakings on

APHIS user fees.

Although we have never previously

specifically addressed the U.S. Air

Transport Agreement with Italy, we

believe our previous discussions of

these issues are also pertinent to this

agreement. Its language is similar, if not

identical, to the many bilateral Air

Transport Services Agreements to which

the United States is a party, and which

we have addressed in previous Federal

Register documents.
Federal Register / Vol. 61, No. 19 / Monday, January 29, 1996 / Rules and Regulations 2661

On April 12, 1991, we discussed this

subject in a final rule published in the

Federal Register (56 FR 14837–14846,

Docket No. 91–028; see pages 14840 and

14841), and concluded that APHIS

complied with the General Agreement

on Tariffs and Trade (GATT), the

Caribbean Basin Economic Recovery

Act, the U.S. Air Transport Agreement

with Austria, the U.S.-Jamaican Bilateral

Aviation Agreement of 1969, and that

the International Civil Aviation

Convention (ICAO) does not apply to

APHIS.

Again, on January 9, 1992, in a final

rule published in the Federal Register

(57 FR 755–773, Docket No. 91–135, see

pp. 762–763), we responded to the same

or similar concerns. At that time, we

addressed: (1) The Chicago Convention;

(2) bilateral air transport agreements

with Switzerland and the United

Kingdom; (3) the United States-Japan

Treaty of Friendship, Commerce and

Navigation; (4) GATT; and (5) ICAO. We

continue to believe that the Chicago

Convention and ICOA are inapplicable

to APHIS and that the user fees are in

compliance with the bilateral air

transport agreements as well as the

United States-Japan Treaty of

Friendship, Commerce and Navigation,

and GATT.

International Commercial Vessels

The May 24, 1995 proposal also

sought to clarify the exemption from

user fees for any vessel which sails only

between United States and Canadian

ports. To aid the identification of

vessels eligible for this exemption, we

proposed to require the Masters of such

vessels to state in their General

Declaration, Customs Form 1301, that

the vessel has sailed solely between the

United States and Canada for the

previous 2 years.

None of the comments specifically

addressed the proposal to clarify this

exemption. One commenter, however,

stated that the exemption is inequitable

and should be abolished because it

allows these ships to be inspected

without payment of any user fees, and

the result is that those who pay user fees

for other APHIS services subsidize

vessel inspections.

These vessels were originally exempt

from paying the user fee because they

pose little animal or plant disease or

pest risk to United States agriculture,

and APHIS does not provide

agricultural quarantine inspection

services for them (see 56 FR 8150).

There has been no change in the animal

or plant risk posed by these vessels and

we still do not provide inspection

services to them. Therefore, we are not

making any change in our proposal

based on this comment.

Phytosanitary Certificates

The May 24, 1995, proposed rule also

proposed to raise user fees for certifying

plants and plant products for export.

APHIS inspectors and designated State

employees issue phytosanitary

certificates in accordance with the

International Plant Protection

Convention and regulations in 7 CFR

part 353, certifying that agricultural

products being exported from the

United States are free from injurious

insects and diseases.

Virtually all of the comments we

received addressed these user fees. With

one exception, the commenters were

opposed to any fee increase. The

comments raised the following issues:

1. Economic Impact/Benefit to User

Many commenters stated that the fees

are unfair or too high, and raise the cost

of doing business because they cannot

be passed on. Some commenters were

particularly concerned that small

businesses will be harmed by the

proposed increases in user fees.

APHIS sympathizes with these

commenters and has attempted to

minimize the cost of the services,

thereby keeping the user fees at the

lowest possible level for all users. Also,

APHIS previously established a user fee

category for low value commercial

shipments in an attempt to minimize

the impact on small businesses.

However, when Congress authorized

APHIS to prescribe and collect user fees

to recover the costs of inspecting plants

and plant products for export, it

specifically reduced APHIS’

appropriation by the estimated amount

of providing such services. Currently,

APHIS is not appropriated funds to

cover the cost of providing these

services. Therefore, APHIS must charge

user fees which recover the full cost of

providing the service. For this reason,

APHIS cannot exempt certain classes of

users, such as small businesses, from

the user fees, and cannot charge user

fees which recover less than the full cost

of providing the service.

Another commenter stated that there

is no benefit to the user that ‘‘caused’’

the fee increase. We believe the

commenter’s intended meaning was that

there is no benefit to the user which

justifies the fee increase.

We disagree. The proposed user fees

are designed to recover the cost of

providing phytosanitary certificates.

These certificates are not required by

APHIS or any other agency of the

Federal Government. They are required

by foreign countries importing the plant

or plant products and are provided to

the exporters solely for their benefit.

The exporters could not import their

plant and plant products into most

foreign countries without such a

certificate.

2. Eliminate Phytosanitary Certificate

Requirements

Several commenters suggested that

phytosanitary certificates should not or

need not be required for certain

products. As discussed above,

phytosanitary certificates are required

by the country importing the plant or

plant product; they are not required by

APHIS, the U.S. Department of

Agriculture, or any other agency or

organization within the Federal

Government. Therefore, we are unable

to eliminate certificate requirements.

However, on August 16, 1995, we

published a proposal in the Federal

Register (60 FR 42472–42479, Docket

No. 90–117–1, see p. 72474) to allow,

under an agreement with the European

Union, approved producers in the

United States to complete their own

certificates for kiln-dried lumber and

other plant products. The certificate

requirement would not be eliminated,

but obtaining a certificate would be

much simpler and less time consuming

for the recipient. We will continue to

work with other countries for

improvements such as these.

3. Relationship of User Fee to Time

Spent Providing Service

Several comments suggested that we

adjust our user fees to take into account

how long it takes to provide the service

or whether we conduct an on-site

inspection.

After carefully considering this

comment we have determined not to

make any changes in the proposed

regulation. The time spent by APHIS

employees is only part of the cost that

we must recover through user fees.

Supplies, overhead, equipment,

telephone, and numerous support costs

must be included. A service may be

provided faster in one instance than

another; however, our proposed user

fees reflect the average cost of providing

particular services on a nationwide

basis. To adjust the fee on the basis of

the time it takes to provide the service

would increase the cost of the fees by

the additional time and expense

involved in customizing the fee for each

individual inspection and issuance of a

phytosanitary certificate. We believe

such a system would be expensive to

administer and the additional expenses

of such a system would, in turn, have

to be included in the fee, raising it

further.
2662 Federal Register / Vol. 61, No. 19 / Monday, January 29, 1996 / Rules and Regulations

4. Competitiveness

Many comments stated that our

proposed user fees would make it

difficult or impossible for U.S. products

to compete in the international

marketplace, especially as some foreign

countries, including Canada, do not

charge for phytosanitary certificates.

Some comments also stated that our

proposed user fees are anti-competitive

because some countries do not require

certificates from exporters in certain

other countries. Comments also stated

that our proposed user fees contradict

efforts to increase U.S. exports and will

inhibit exports.

We have carefully considered these

comments, but are not making any

changes based on them. Although some

countries do not currently charge for

issuing phytosanitary certificates, user

fees for this service are being adopted by

more and more countries. In fact, as of

May 17, 1995, Canada charges a user fee

for all export phytosanitary certificates

(see May 17, 1995, Canada Gazette Part

II, Vol. 129, No. 10, SOR/DORS/95–

218). Other countries, including New

Zealand, France, Australia, Belgium and

The Netherlands, also charge user fees

for export phytosanitary certificates.

U.S. exporters are therefore not at a

competitive disadvantage compared

with exporters in other countries.

To the best of our knowledge, there

are no countries which do not require

phytosanitary certificates. However,

some countries do not enforce their

requirements in all cases. Also, some

countries have negotiated with

individual trading partners and agreed

to adjust certain specific requirements,

such as, for example, who fills out the

form and who conducts the inspection,

to make certificates easier or cheaper to

obtain. For example, as mentioned

elsewhere in this document, we

proposed to allow, under an agreement

with the European Union, approved

producers in the United States to

complete their own certificates for kilndried lumber and certain other plant

products. Because APHIS inspectors

would not inspect each export

shipment, costs would be reduced for

both APHIS and the exporter. In this

situation the certificate requirement

would not be eliminated, but obtaining

a certificate would be simpler and less

time consuming.

5. APHIS Costs and Procedures

Several comments suggested that

APHIS should keep its costs as low as

possible, to keep user fees as low as

possible. Other comments, many of

which made specific suggestions, stated

that APHIS should improve its service.

The suggestions included changes in

procedures and paperwork.

We are always trying to reduce our

costs and operate as efficiently as

possible to maintain APHIS user fees at

the lowest possible level. All of the

suggestions made by commenters will

be carefully considered. If we determine

that changes in procedures and

paperwork requirements are practical

and desirable, we will publish proposed

changes for public comment in the

Federal Register.

6. Effective Date

One comment suggested that we delay

the effective date of any final rule until

January 1996. We understand the

commenter’s desire to make business

plans and not have business already

settled affected by increases in our user

fees. This rule will not take effect until

30 days after the date it is published in

the Federal Register. This delay should

give the commenter and others time to

prepare.

7. Calculations

One comment objected that a

disproportionate share of APHIS costs is

allocated to agricultural exports. The

comment appears to say that APHIS is

recovering 21 percent of the total cost

for our agricultural quarantine and

inspection (AQI) program through user

fees for phytosanitary certificates. The

comment also compares aircraft user

fees with phytosanitary certificate fees

and states that each aircraft fee covers

up to 300 individual passenger

inspections.

Neither of these statements is correct.

User fees for phytosanitary certificates

recover only that portion of the total

costs of the AQI program attributable to

phytosanitary certificate issuance.

Phytosanitary certificates actually

account for less than 5 percent of total

AQI program costs. More than 95

percent of total AQI program costs is

recovered through other user fees or

through appropriated funds. Among the

other user fees is a fee for international

commercial aircraft. The user fee for

international commercial aircraft

recovers only the portion of total AQI

program costs attributable to

international commercial aircraft

inspections. It does not cover inspection

of aircraft passengers. Passengers on

international commercial aircraft pay a

separate user fee for inspection services.

This user fee recovers only that portion

of total AQI program costs attributable

to international commercial aircraft

passenger inspections. Therefore, we are

making no changes based on these

comments.

8. State-Issued Phytosanitary

Certificates

A couple of comments addressed the

fact that phytosanitary certificates are

issued by some States, and those Stateissued certificates often cost less than

federally-issued certificates. The

commenters were concerned that APHIS

is ‘‘losing business’’ to States. The

commenters were also concerned that

recipients of State-issued certificates are

not paying any fee to APHIS, although

the certificates themselves are provided

by APHIS, which must also maintain

files, track certificates, and otherwise

manage the program.

APHIS provides a service to the

public and is not ‘‘in business’’ as such.

Because APHIS seeks to provide

efficient and economical service,

designated State officials are permitted

to issue phytosanitary certificates. Users

have the option of obtaining a

phytosanitary certificate from a

designated State official, which is often

more convenient, and saves substantial

time and transportation costs.

The commenters are correct that

APHIS provides certificates to States

and provides oversight of State

programs. Although we have decided

not to make any changes in the

proposed regulations at this time, we

will analyze the issue to determine if

further adjustments in the user fees are

warranted. If we determine that changes

are desirable, we will publish proposed

changes for comment in the Federal

Register.

9. New Fee

One comment suggested that we

establish a new category of user fee for

issuing phytosanitary certificates for the

reexport of noncommercial shipments.

We are not aware of the need for such

an additional category of user fee at this

time. However, we will keep this

suggestion in mind as we continue to

review the user fee program. If we

determine that there is a demand for

this type of certificate, we will publish

a proposed fee for public comment in

the Federal Register.

10. Miscellaneous

One commenter asked who pays for

other services. We have user fees for

other services, where appropriate, and

the users of those services pay for them.

We do not have user fees for domestic

programs. User fees apply only to

import and export services.

The same commenter asked why we

‘‘encourage foreign airlines.’’ This

comment was apparently prompted by

our proposal to lower the user fee for

international commercial aircraft. This
Federal Register / Vol. 61, No. 19 / Monday, January 29, 1996 / Rules and Regulations 2663

1For certain products from certain States, some

countries may accept a State phytosanitary

certificate.

user fee applies to all commercial

aircraft arriving in the customs territory

of the United States. Ownership of the

aircraft—foreign or domestic—is

irrelevant. The user fee is designed to

recover the cost of inspection services

provided to each aircraft. The fact that

we proposed to lower the user fee only

reflects the fact that the costs of

providing this service were lower than

anticipated.

Another commenter stated that there

is a double charge for State certificates

which are then endorsed by APHIS. We

believe the commenter has

misunderstood the system for issuing

Federal phytosanitary certificates.

Federal phytosanitary certificates are

issued only by APHIS officials or, in

some States which cooperate with

APHIS, by designated State officials.

Users pay only one fee for a Federal

phytosanitary certificate, although the

certificate may be obtained from a State

or APHIS official.

Some States require a State

phytosanitary certificate before allowing

plants or plant products to be moved

into their territory from other parts of

the United States. State phytosanitary

certificates are generally not valid for

exports to another country.1 If a shipper

obtains, and pays for, a State

phytosanitary certificate to ship a

commodity interstate, and the shipper

then decides to export the plant or plant

products instead, then the shipper must

obtain a Federal certificate either from

the State, if it issues Federal

phytosanitary certificates, or from

APHIS. If the shipper obtains a

certificate from APHIS, the user fee due

for APHIS’ certification is not a double

charge: The Federal phytosanitary

certificate is a separate document issued

for a different purpose.

There are two ways to obtain a

federally-issued phytosanitary

certificate for plants regulated under the

Endangered Species Act of 1973, as

amended (16 U.S.C. 1531 et seq.). The

exporter has a choice—he or she can

either obtain a State phytosanitary

certificate and forward it to certain

designated APHIS offices, which will

issue a Federal phytosanitary certificate

to the exporter by mail; or the exporter

can bring the plants to the nearest

designated APHIS office and APHIS

personnel will issue the Federal

phytosanitary certificate directly to the

exporter. Which method to use is up to

the exporter. If the exporter chooses to

obtain a State phytosanitary certificate

and forward it to APHIS, there will be

two fees—one for the State

phytosanitary certificate and one for the

Federal phytosanitary certificate.

However, the exporter would save the

cost of transporting the plants to the

designated APHIS office.

One commenter stated that he could

not figure out in advance what the user

fee would be for a phytosanitary

certificate and did not understand how

to obtain a refund of overpayments. This

situation only results when a

prospective exporter buys a block of

phytosanitary certificates from APHIS,

paying a fixed amount per certificate.

Because the user fee varies for different

types of certificates, the actual user fee

due for a particular phytosanitary

certificate is not known until the

certificate is complete. For example, the

user fee due for a low value commercial

shipment may be less than the user fee

already paid for the certificate. Under

these circumstances, the user is entitled

to a refund from APHIS. We have an

established refund system. The user

should contact the APHIS office where

the block of certificates was purchased

to arrange for a refund.

One commenter also stated that

APHIS no longer issues phytosanitary

certificates for as many different plant

and plant products as the agency once

did. This is correct. Because importing

countries have stopped requiring

phytosanitary certificates for some

plants and plant products, APHIS has

stopped issuing phytosanitary

certificates for these plants and plant

products.

11. Regulatory Impact Analysis

One comment stated that we have not

conducted an economic analysis of the

proposed phytosanitary certificate fees.

This is incorrect. Our analysis was

included in the proposed regulations at

60 FR 27439–27440. An updated

analysis, using the most current data

available at the time this was written, is

a part of this document.

One comment stated that if we raise

the user fees for phytosanitary

certificates, the number of certificates

APHIS issues will decline. The

commenter may be correct. However,

we do not have data to show how much

of a decline might occur. Regardless, we

are required to recover the cost of

providing the service. Therefore, it is

necessary to increase our fees for issuing

phytosanitary certificates.

Another comment questioned our

statement that $3 billion in exports was

certified during 1993, and suggested it

should be much higher. We have

rechecked all of our figures and find

that the commenter is correct. In fact,

approximately $39 billion in

agricultural exports was certified in

1993. Our original figure included only

fruits and vegetables; major exports

such as lumber and wood products and

grain and cereals were not included. We

have revised our Regulatory Flexibility

Act analysis to reflect the correct figure.

Four comments disagreed with our

conclusion that the proposed fees would

not have a significant economic impact

on a substantial number of small

entities. One stated that we should

compare the total user fees paid by the

affected industry with the profit

generated by that industry, rather than

comparing user fee costs with overall

value of exports. Another stated that our

analysis was valid only as to large

wholesale agriculture shipments.

We have carefully reviewed our

analysis. Based on the data available to

us, we continue to believe the proposed

fees will not have a significant

economic impact on a substantial

number of small entities. We would

have compared the amount of proposed

user fees with business profits if this

were possible. However, information on

profits from sales is proprietary for

many small entities and not part of the

public record. In order to minimize any

potential impact from increased user

fees, small exporters could work

through brokers to combine shipments.

Therefore, based on the rationale set

forth in the proposed rule and in this

document, we are adopting the

provisions of the proposal as a final

rule, without change.

Executive Order 12866 and Regulatory

Flexibility Act

This rule has been reviewed under

Executive Order 12866. The 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.

This rule will increase the user fees

for phytosanitary certificates to recover

the cost to APHIS of providing export

certification services for plants and

plant products. This rule will also

reduce the user fee for international

commercial aircraft to correspond with

the cost to APHIS of providing services.

Amendments to user fees are necessary

to adjust for changes in service volume

and service costs.

Federal phytosanitary certificates

must be issued by APHIS or, as

explained earlier, by designated State

employees in States that cooperate with

APHIS, to be accepted in international

commerce. Federal phytosanitary

certificates must accompany the

majority of agricultural commodities

(except livestock products) traded.

Traded commodities generally include
2664 Federal Register / Vol. 61, No. 19 / Monday, January 29, 1996 / Rules and Regulations

cereals and grains (such as soybeans,

wheat, and corn), fruits and vegetables,

other nursery and horticultural

products, and lumber and wood

products. In 1993, the value of exported

agricultural products requiring

phytosanitary certificates was estimated

at $39 billion.

Current user fees for phytosanitary

certificates do not fully recover APHIS’

costs for services performed. In fiscal

year 1994, the total cost of providing

phytosanitary certificate services was

$4,314,000, while total fee collections

amounted only to $3,015,000 when the

fees were $30 for commercial

certificates and $19 for noncommercial

certificates. The reason for the

discrepancy is that we overestimated

the number of certificates and

underestimated the time to issue a

certificate, thereby underestimating the

cost of issuing each certificate. The total

program cost for the 1995 fiscal year,

which we should have recovered

through user fees, was estimated at

$4,707,000. This amount includes costs

associated with the direct charges for

program delivery and associated

allocations for program direction and

support, agency support, departmental

charges, and Office of the General

Counsel services. If the proposed fee

increases are adopted, estimated

collections would rise to $4,717,947

annually.

Exporters of agricultural commodities

will be affected by this rule. The

Regulatory Flexibility Act requires

APHIS to address the economic impact

of imposing user fees on ‘‘small’’

entities. The Small Business

Administration (SBA) criteria for a

small wholesale business engaged in the

trading of fresh fruits and vegetables is

that the business have 100 or fewer

employees. SBA criteria for a small crop

production business is that it have

annual revenues up to $500,000.

Approximately 98,387 federallyissued phytosanitary certificates were

issued in 1994. Certificates for

commercial shipments are issued to

wholesale businesses engaged in the

trading of cereals and grains, fresh fruits

and vegetables, other nursery and

horticultural products, and lumber and

wood products. Certificates are also

issued to export brokers who handle

shipments of produce from various

sources. The proportion of exporters in

this group which may qualify as small

is unknown. It is likely that a large

number of these brokers employ fewer

than 100 workers.

The value of an average commercial

shipment greatly exceeds the increase in

the $30 user fee up to the $50 user fee.

The total value of agricultural products

requiring phytosanitary certificates

exported in 1993, estimated at $39

billion, is sufficiently large to

incorporate the 0.012 percent ($4.7

million) in total user fee collection;

consequently, the impact on U.S.

producers and exporters is expected to

be very small.

Phytosanitary certificates for

noncommercial exporters are generally

issued to individuals and to exporters of

low value commodities. The user fee for

this category of phytosanitary certificate

will increase from $19 to $23, an

increase of 21 percent. Although user

fees represent a proportionately larger

share of the total value of

noncommercial and low value exports,

these small exports may possess a much

higher value in the foreign country than

in the United States. Moreover, exports

by individuals may be gift items with

nonmonetary values offsetting some of

the effect of the fee increase.

SBA criteria for a small airline is that

it have 1,500 or fewer employees. Data

from the 1988 Census indicates that

there were 67 domestic and

international airline operators

employing a total of 481,000 employees.

Although the size distribution of air

carriers that enter the customs territory

of the United States is unknown, the

effect of the proposed user fee change,

regardless of carrier size, is positive—

we are proposing a 13 percent user fee

reduction, from $61 to $53 per aircraft.

The lower fee is sufficient to recover the

full cost of providing aircraft inspection

services, without collecting more

revenue than needed to recover costs.

The estimated cost to provide

inspection services for international

commercial aircraft in FY 1995 is $18

million. At the proposed user fee of $53

per aircraft and a projected FY 1995

commercial aircraft volume of 346,204,

total collections would amount to $18.3

million.

Under these circumstances, the

Administrator of the Animal and Plant

Health Inspection Service has

determined that this action will not

have a significant economic impact on

a substantial number of small entities.

Executive Order 12372

This program/activity is listed in the

Catalog of Federal Domestic Assistance

under No. 10.025 and is subject to

Executive Order 12372, which requires

intergovernmental consultation with

State and local officials. (See 7 CFR part

3015, subpart V.)

Executive Order 12778

This rule has been reviewed under

Executive Order 12778, Civil Justice

Reform. This rule: (1) Preempts all State

and local laws and regulations that are

inconsistent with this rule; (2) has no

retroactive effect; and (3) does not

require administrative proceedings

before parties may file suit in court

challenging this rule.

Paperwork Reduction Act

In accordance with the Paperwork

Reduction Act of 1980 (44 U.S.C. 3501

et seq.), the information collection or

recordkeeping requirements included in

this rule have been approved by the

Office of Management and Budget

(OMB), and there are no new

requirements. The assigned OMB

control number is 1515–0062.

List of Subjects in 7 CFR Part 354

Exports, Government employees,

Imports, Plant diseases and pests,

Quarantine, Reporting and

recordkeeping requirements, Travel and

transportation expenses.

Accordingly, 7 CFR part 354 is

amended as follows:

PART 354—OVERTIME SERVICES

RELATING TO IMPORTS AND

EXPORTS; AND USER FEES

1. The authority citation for part 354

continues to read as follows:

Authority: 7 U.S.C. 2260; 21 U.S.C. 136

and 136a; 49 U.S.C. 1741; 7 CFR 2.17, 2.51,

and 371.2(c).

§ 354.3 [Amended]

2. Section 354.3 is amended as

follows:

a. By revising paragraph (b)(2)(vi) to

read as set forth below.

b. In paragraph (e)(1), the last

sentence, by removing ‘‘$61.00’’ and

adding ‘‘$53’’ in its place.

c. In paragraph (g)(5)(i)(A), by

removing ‘‘$30’’ and adding ‘‘$50’’ in its

place.

d. In paragraph (g)(5)(i)(B), by

removing ‘‘$19’’ and adding ‘‘$23’’ in its

place.

e. In paragraph (g)(5)(ii), by removing

‘‘$19’’ and adding ‘‘$23’’ in its place.

f. In paragraph (g)(5)(iii)(A), by

removing ‘‘$30’’ and adding ‘‘$50’’ in its

place.

g. In paragraph (g)(5)(iii)(B), by

removing ‘‘$19’’ and adding ‘‘$23’’ in its

place.

h. In paragraph (g)(5)(iv), by removing

‘‘$30’’ and adding ‘‘$50’’ in its place.

i. In paragraph (g)(5)(v), by removing

‘‘$6’’ and adding ‘‘$7’’ in its place.

j. In paragraph (h)(2), by removing

‘‘$6’’ and adding ‘‘$7’’ in its place.

k. By adding at the end of the section

the following: ‘‘(Approved by the Office

of Management and Budget under

control numbers 1515–0062, 0579–0094,

or 0579–0052)’’.
Federal Register / Vol. 61, No. 19 / Monday, January 29, 1996 / Rules and Regulations 2665

§ 354.3 User fees for certain international

services.

* * * * *

(b) * * *

(2) * * *

(vi) Any vessel which sails only

between United States and Canadian

ports, when the Master of such vessel

arriving from Canada certifies, in the

‘‘Remarks’’ block of the General

Declaration, Customs Form 1301, that

the vessel has sailed solely between the

United States and Canada for the

previous 2 years.

* * * * *

(Approved by the Office of Management and

Budget under control numbers 1515–0062,

0579–0094, or 0579–0052)

Done in Washington, DC, this 24th day of

January 1996.

Lonnie J. King,

Administrator, Animal and Plant Health

Inspection Service.

[FR Doc. 96–1506 Filed 1–26–96; 8:45 am]

BILLING CODE 3410–34–P

Agricultural Marketing Service

7 CFR Part 982

[Docket No. FV95–982–2IFR]

Filberts/Hazelnuts Grown in Oregon

and Washington; Establishment of

Interim and Final Free and Restricted

Percentages for the 1995–96 Marketing

Year

AGENCY: Agricultural Marketing Service,

USDA.

ACTION: Interim final rule with request

for comments.

SUMMARY: This interim final rule

establishes interim and final free and

restricted percentages for domestic

inshell filberts/hazelnuts for the 1995–

96 marketing year under the Federal

marketing order for filberts/hazelnuts

grown in Oregon and Washington. The

percentages allocate the quantity of

domestically produced filberts/

hazelnuts which may be marketed in the

domestic inshell market. The

percentages are intended to stabilize the

supply of domestic inshell filberts/

hazelnuts to meet the limited domestic

demand for such filberts/hazelnuts and

provide reasonable returns to producers.

This rule was recommended

unanimously by the Filbert/Hazelnut

Marketing Board (Board), which is the

agency responsible for local

administration of the order.

DATES: Effective January 29, 1996.

Comments which are received by

February 28, 1996 will be considered

prior to any finalization of the interim

final rule.

ADDRESSES: Interested persons are

invited to submit written comments

concerning this rule to: Docket Clerk,

Fruit and Vegetable Division, AMS,

USDA, Room 2525–S, P.O. Box 96456,

Washington, DC 20090–6456. Three

copies of all written material shall be

submitted, and they will be made

available for public inspection at the

office of the Docket Clerk during regular

business hours. All comments should

reference the docket number, date, and

page number of this issue of the Federal

Register.

FOR FURTHER INFORMATION CONTACT:

Teresa L. Hutchinson, Marketing

Specialist, Northwest Marketing Field

Office, Fruit and Vegetable Division,

Agricultural Marketing Service, USDA,

1220 SW Third Ave., Room 369,

Portland, OR 97204; telephone (503)

326–2725 or Mark A. Slupek, Marketing

Specialist, Marketing Order

Administration Branch, Fruit and

Vegetable Division, AMS, USDA, Room

2536–S, P.O. Box 96456, Washington,

DC 20090–6456; telephone: (202) 205–

2830.

SUPPLEMENTARY INFORMATION: This rule

is issued under Marketing Agreement

and Order No. 982 (7 CFR Part 982),

both as amended, regulating the

handling of filberts/hazelnuts grown in

Oregon and Washington. This order is

effective under the Agricultural

Marketing Agreement Act of 1937, as

amended (7 U.S.C. 601–674), hereinafter

referred to as the ‘‘Act.’’

The Department of Agriculture

(Department) is issuing this rule in

conformance with Executive Order

12866.

This rule has been reviewed under

Executive Order 12778, Civil Justice

Reform. It is intended that this action

apply to all merchantable filberts/

hazelnuts handled during the 1995–96

marketing year. This rule will not

preempt any State or local laws,

regulations, or policies, unless they

present an irreconcilable conflict with

this rule.

The Act provides that administrative

proceedings must be exhausted before

parties may file suit in court. Under

section 608c(15)(A) of the Act, any

handler subject to an order may file

with the Secretary a petition stating that

the order, any provision of the order, or

any obligation imposed in connection

with the order is not in accordance with

law and request a modification of the

order or to be exempted therefrom. A

handler is afforded the opportunity for

a hearing on the petition. After the

hearing, the Secretary would rule on the

petition. The Act provides that the

district court of the United States in any

district in which the handler is an

inhabitant, or has his or her principal

place of business, has jurisdiction in

equity to review the Secretary’s ruling

on the petition, provided a bill in equity

is filed not later than 20 days after the

date of the entry of the ruling.

Pursuant to requirements set forth in

the Regulatory Flexibility Act (RFA), the

Administrator of the Agricultural

Marketing Service (AMS) has

considered the economic impact of this

rule on small entities.

The purpose of the RFA is to fit

regulatory actions to the scale of

business subject to such actions in order

that small businesses will not be unduly

or disproportionately burdened.

Marketing orders issued pursuant to the

Act, and rules issued thereunder, are

unique in that they are brought about

through group action of essentially

small entities acting on their own

behalf. Thus, both statutes have small

entity orientation and compatibility.

There are approximately 1,000

producers of filberts/hazelnuts in the

production area and approximately 25

handlers subject to regulation under the

marketing order. Small agricultural

producers have been defined by the

Small Business Administration (13 CFR

121.601) as those having annual receipts

of less than $500,000, and small

agricultural service firms are defined as

those whose annual receipts are less

than $5,000,000. The majority of

handlers and producers of filberts/

hazelnuts may be classified as small

entities.

The Board’s recommendation and this

interim final rule are based on

requirements specified in the order.

This rule establishes the amount of

inshell filberts/hazelnuts that may be

marketed in domestic markets. The

domestic outlets for this commodity are

characterized by limited demand, and

the establishment of interim and final

free and restricted percentages will

benefit the industry by promoting

stronger marketing conditions and

stabilizing prices and supplies, thus

improving grower returns.

The Board is required to meet prior to

September 20 of each marketing year to

compute an inshell trade demand and

preliminary free and restricted

percentages, if the use of volume

regulation is recommended during the

season. The order prescribes formulas

for computing the inshell trade demand,

as well as preliminary, interim final,

and final percentages. The inshell trade

demand establishes the amount of

inshell filberts/hazelnuts the handlers

may ship to the domestic market

throughout the season, and the

percentages release the volume of