APHIS Finalizes Rule on AQI User Fee Exemptions for Commercial Vehicles Entering from Canada , Etc.

The interim rule also removed the exemptions from AQI inspection for imported fruits and vegetables grown in Canada. As a result, all agricultural products imported from Canada became subject to inspection, and commercial conveyances, as well as airline passengers arriving on flights from Canada, became subject to inspection and user fees.

APHIS' final rule is effective March 9, 2010. The interim final rule was effective November 24, 2006.

Highlights of Comments Received, APHIS Responses

Comments on the interim rule were due by November 24, 2006. APHIS received 112 comments by that date from industry groups; individual shipping, manufacturing, and food processing companies; trade groups; representatives of trucking, airline, railroad, and vessel companies; etc.

Certain Railroad Cars that Originate and End in Canada Now Exempt from Fees

APHIS recognizes 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 U.S. Therefore, APHIS has amended the regulations in this final rule to state that such movements are exempt from the AQI user fee.

No similar exemption for trucks. However, APHIS does not agree that a similar exemption from the AQI user fee should be granted to trucks that originate and terminate in the U.S. 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 U.S. 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.

U.S. Vessels that Travel to Canada to Refuel Now Exempt from Fees

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 U.S., APHIS notes that Canadian-origin vessels that travel to the U.S. solely to take on fuel are exempt from paying an AQI user fee. Because APHIS recognizes 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, it has amended the regulations in this final rule to state that such movements are also exempt from the AQI user fee.

Certain Barges Now Exempt from Fees

Because of the risk of ocean-going barges traveling to countries outside of the U.S. and Canada, APHIS has restricted its definition of barge to a non self-propelled vessel that transports cargo that is not contained in shipping containers. Further, APHIS is limiting the exemption to barges that carry bulk cargo that originates only in the U.S. 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 7 CFR 319.77-3 as being infested with gypsy moth. Therefore, APHIS is amending the regulations to exempt barges that meet the above conditions from paying the AQI user fee.

Interim Rule Has Not Caused Border Delays, Allowed Hiring of Staff

In response to a concern regarding border delays, APHIS notes that 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, APHIS is not aware of any increase in delays at U.S./Canada border ports as a result of the rule.

Carriers from a Business on Border Could be Directed to a Port

APHIS states that the 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.

C-TPAT Members Not Exempt from the AQI User Fee

APHIS noted that 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, APHIS does not believe it is appropriate to exempt C-TPAT members from being required to pay the AQI user fee.

Highlights of Changes Made in Final Rule

As discussed above, 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 U.S., 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 U.S. 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.

(See ITT's Online Archives or 09/07/06 news, 06090720, for BP summary of the interim final rule.)

APHIS contact - Cynthia Stahl (301) 734-8415

APHIS final rule (D/N APHIS-2006-0096, FR Pub 03/05/10) http://edocket.access.gpo.gov/2010/pdf/2010-4949.pdf