Unknown. Interpretative rule and request for comments

4,973 words·~23 min read·/register/2019/04/26/2019-08394·

A research copy — for the controlling text, always check the official state or federal source. Not legal advice.

--- schema: federal-register doc_type: fedreg source_file: FR-2019-04-26.xml --- 84 81 Friday, April 26, 2019 Contents Agriculture Agriculture Department See Animal and Plant Health Inspection Service See Food and Nutrition Service See Food Safety and Inspection Service See Forest Service NOTICES Agency Information Collection Activities; Proposals, Submissions, and Approvals:, 17772-17773 2019-08438 Animal Animal and Plant Health Inspection Service RULES User Fees for Agricultural Quarantine and Inspection Services, 17729-17731 2019-08394 Census Bureau Census Bureau NOTICES Meetings:

Federal Economic Statistics Advisory Committee, 17778-17779 2019-08447 Centers Disease Centers for Disease Control and Prevention NOTICES Meetings: Advisory Board on Radiation and Worker Health, National Institute for Occupational Safety and Health, 17831-17832 2019-08446 Requests for Nominations: Board of Scientific Counselors, National Center for Injury Prevention and Control, 17832 2019-08442 Children Children and Families Administration PROPOSED RULES Child Support Program Technical Corrections Notice of Proposed Rulemaking;

Correction, 17768 2019-08299 Coast Guard Coast Guard RULES Safety Zone: Pittsburgh Pirates Fireworks, Allegheny River, Pittsburgh, PA, 17754 2019-08403 Special Local Regulation: Lake Pontchartrain, New Orleans, LA, 17751-17754 2019-08405 PROPOSED RULES Safety Zone: Cuyahoga 50th Parade of Lights; Cuyahoga River, Cleveland, OH, 17760-17762 2019-08402 Upper Mississippi River MM 486 to 491.1, Riverdale, IA, 17758-17760 2019-08404 Safety Zones: Annual Events in the Captain of the Port Buffalo Zone, 17756-17758 2019-08416 NOTICES Certificate of Alternate Compliance: tug RANDY MCCRANEY, 17866-17867 2019-08406 Commerce Commerce Department See Census Bureau See Foreign-Trade Zones Board See International Trade Administration See National Oceanic and Atmospheric Administration See Patent and Trademark Office Committee for Purchase Committee for Purchase From People Who Are Blind or Severely Disabled NOTICES Procurement List;

Additions and Deletions, 17810-17811 2019-08439 Commodity Futures Commodity Futures Trading Commission NOTICES Privacy Act; Systems of Records, 17811-17819 2019-08395 2019-08396 2019-08397 Defense Department Defense Department NOTICES Agency Information Collection Activities; Proposals, Submissions, and Approvals, 17819 2019-08417 Agency Information Collection Activities; Proposals, Submissions, and Approvals: Contractors Performing Private Security Functions Outside the United States, 17830-17831 2019-08385 Education Department Education Department NOTICES Agency Information Collection Activities;

Proposals, Submissions, and Approvals: Magnet Schools Assistance Program Application for Grants, 17821-17822 2019-08445 William D. Ford Federal Direct Loan Program (Direct Loan Program) Promissory Notes, 17820-17821 2019-08443 Draft Mathematics Assessment Framework for the 2025 National Assessment of Educational Progress, 17819-17820 2019-08393 Energy Department Energy Department See Federal Energy Regulatory Commission Environmental Protection Environmental Protection Agency PROPOSED RULES Air Quality State Implementation Plans;

Approvals and Promulgations: Pennsylvania; Removal of Allegheny County Requirements Applicable to Motor Gasoline Volatility in the Allegheny County Portion of the Pittsburgh-Beaver Valley Area, 17762-17768 2019-08156 NOTICES Environmental Impact Statements; Availability, etc.: Weekly Receipts, 17826 2019-08379 Federal Aviation Federal Aviation Administration RULES Amendment of Class E Airspace: Connersville and Richmond, IN, 17736-17737 2019-08473 Hamilton, OH, 17737-17738 2019-08474 Special Conditions:

Costruzioni Aeronautiche Tecnam S.P.A., Model P2012 Airplane; Electronic Engine Control System Installation, 17731-17733 2019-08476 Costruzioni Aeronautiche Tecnam S.P.A.; Model P2012 Airplane; Installation of Rechargeable Lithium Batteries, 17733-17736 2019-08477 Federal Communications Federal Communications Commission NOTICES Agency Information Collection Activities; Proposals, Submissions, and Approvals, 17826-17830 2019-08429 2019-08430 2019-08435 2019-08436 Federal Energy Federal Energy Regulatory Commission RULES Interstate and Intrastate Natural Gas Pipelines;

Rate Changes Relating to Federal Income Tax Rate; American Forest and Paper Association, 17739-17750 2019-08241 NOTICES Combined Filings, 17822-17826 2019-08423 2019-08425 2019-08426 Environmental Assessments; Availability, etc.: Southern Star Central Gas Pipeline, Inc.; Lines DT and DS Replacement Project, 17825 2019-08434 Environmental Impact Statements; Availability, etc.: Annova LNG Common Infrastructure, LLC, et al.; Annova LNG Brownsville Project, 17824-17825 2019-08380 Initial Market-Based Rate Filings Including Requests for Blanket Section 204 Authorizations:

Great American Gas and Electric, LLC, 17823 2019-08427 Federal Highway Federal Highway Administration NOTICES Final Federal Agency Actions on Proposed Highway in California, 17909-17910 2019-08475 Federal Maritime Federal Maritime Commission NOTICES Meetings; Sunshine Act, 17830 2019-08600 Federal Motor Federal Motor Carrier Safety Administration NOTICES Parts and Accessories Necessary for Safe Operation; Exemption Applications: Groendyke Transport, Inc., 17910-17913 2019-08463 Federal Reserve Federal Reserve System NOTICES Change in Bank Control:

Acquisitions of Shares of a Bank or Bank Holding Company, 17830 2019-08453 Fish Fish and Wildlife Service PROPOSED RULES Endangered and Threatened Species: 90-Day Findings for Four Species, 17768-17771 2019-08449 NOTICES Agency Information Collection Activities; Proposals, Submissions, and Approvals: Federal Subsistence Regulations and Associated Forms, 17883-17884 2019-08411 Environmental Impact Statements; Availability, etc.: Receipt of Applications for Incidental Take Permits for Four Wind Energy Projects in Hawaii, 17875-17879 2019-08356 Permit Applications:

Foreign Endangered Species, 17882-17883 2019-08409 Foreign Endangered Species; Marine Mammals, 17879-17881 2019-08408 Food and Drug Food and Drug Administration NOTICES Agency Information Collection Activities; Proposals, Submissions, and Approvals: Agreement for Shipment of Devices for Sterilization, 17837-17838 2019-08470 Medical Device User Fee Small Business Qualification and Certification, 17834-17835 2019-08471 Guidance for Industry and Food and Drug Administration Staff;

Availability: Unique Device Identification, 17835-17837 2019-08472 Guidance: Characterization of Ultrahigh Molecular Weight Polyethylene Used in Orthopedic Devices, 17832-17834 2019-08465 Recommended Content and Format of Non-Clinical Bench Performance Testing Information in Premarket Submissions, 17838-17840 2019-08466 Food and Nutrition Food and Nutrition Service NOTICES Special Supplemental Nutrition Program for Women, Infants, and Children: 2019/2020 Income Eligibility Guidelines, 17775-17777 2019-08389 Food Safety Food Safety and Inspection Service NOTICES Agency Information Collection Activities;

Proposals, Submissions, and Approvals: Public Health Information System, 17773-17775 2019-08451 Foreign Trade Foreign-Trade Zones Board NOTICES Approval of Expansion of Subzone: Thoma-Sea Marine Constructors, LLC; Houma and Lockport, LA, 17779 2019-08452 Forest Forest Service NOTICES Agency Information Collection Activities; Proposals, Submissions, and Approvals: Fire and Aviation Management Medical Qualifications Program, 17777-17778 2019-08390 General Services General Services Administration NOTICES Agency Information Collection Activities;

Proposals, Submissions, and Approvals: Contractors Performing Private Security Functions Outside the United States, 17830-17831 2019-08385 Health and Human Health and Human Services Department See Centers for Disease Control and Prevention See Children and Families Administration See Food and Drug Administration See Health Resources and Services Administration See Indian Health Service See National Institutes of Health Health Resources Health Resources and Services Administration NOTICES Agency Information Collection Activities;

Proposals, Submissions, and Approvals: Environmental Information Documentation, OMB No. 0915-0324—Revision, 17842-17843 2019-08383 National Vaccine Injury Compensation Program; List of Petitions Received, 17840-17842 2019-08381 Homeland Homeland Security Department See Coast Guard See U.S. Citizenship and Immigration Services See U.S. Customs and Border Protection Housing Housing and Urban Development Department NOTICES Agency Information Collection Activities; Proposals, Submissions, and Approvals:

Enterprise Income Verification Systems Access Authorization Form and Rules of Behavior and User Agreement, 17871-17872 2019-08460 Multifamily Default Status Report, 17874-17875 2019-08456 Public Housing Mortgage Program and Section 30, 17873-17874 2019-08461 Race and Ethnic Data Collection, 17872-17873 2019-08459 Indian Health Indian Health Service NOTICES Funding Opportunity: 4-in-1 Grant Programs, 17843-17851 2019-08414 Urban Indian Education and Research Program, 17851-17858 2019-08413 Interior Interior Department See Fish and Wildlife Service See Land Management Bureau International Trade Adm International Trade Administration NOTICES Antidumping or Countervailing Duty Investigations, Orders, or Reviews:

Certain Passenger Vehicle and Light Truck Tires from the People's Republic of China, 17781-17784 2019-08454 Rubber Bands from Thailand, 17779-17780 2019-08450 International Trade Com International Trade Commission NOTICES Investigations; Determinations, Modifications, and Rulings, etc.: Circular Welded Carbon-Quality Steel Pipe from China, 17889-17890 2019-08388 Rubber Bands from Thailand, 17889 2019-08387 Wooden Cabinets and Vanities from China, 17890-17891 2019-08386 Justice Department Justice Department RULES Updating the Description of Functions for the Executive Office for United States Attorneys, 17750-17751 2019-08467 NOTICES Agency Information Collection Activities;

Proposals, Submissions, and Approvals: Application for Cancellation of Removal

(42A)for Certain Permanent Residents; and Application for Cancellation of Removal and Adjustment of Status

(42B)for Certain Nonpermanent Residents, 17891-17892 2019-08422 Proposed Consent Decree: CERCLA, 17891 2019-08424 Labor Department Labor Department See Occupational Safety and Health Administration Land Land Management Bureau NOTICES Environmental Impact Statements; Availability, etc.: Bakersfield Field Office Hydraulic Fracturing Draft, California, 17885-17886 2019-08282 Converse County Oil and Gas Project, Converse County, WY, 17884-17885 2019-08288 Proposed Land Use Plan Amendment to the California Desert Conservation Area Plan for the West Mojave Route Network Project, Inyo, Kern, Los Angeles, Riverside, and San Bernardino Counties, CA, 17886-17888 2019-08281 Proposed San Pedro Riparian National Conservation Area Resource Management Plan, Arizona, 17888-17889 2019-08287 NASA National Aeronautics and Space Administration NOTICES Agency Information Collection Activities; Proposals, Submissions, and Approvals: Contractors Performing Private Security Functions Outside the United States, 17830-17831 2019-08385 Meetings: Human Exploration and Operations Committee, 17893 2019-08457 National Institute National Institutes of Health NOTICES Final Action Under the NIH Guidelines for Research Involving Recombinant or Synthetic Nucleic Acid Molecules, 17858-17866 2019-08462 National Oceanic National Oceanic and Atmospheric Administration RULES Fisheries of the Northeastern United States: Atlantic Sea Scallop Fishery; 2019 Closure of the Northern Gulf of Maine Scallop Management Area to the Limited Access General Category Fishery, 17754-17755 2019-08444 Northeast Multispecies Fishery; 2019 and 2020 Sector Operations Plans and 2019 Allocation of Northeast Multispecies Annual Catch Entitlements, 17916-17926 2019-08440 Northeast Multispecies Fishery; Common Pool Measures for Fishing Year 2019, 17926-17929 2019-08441 NOTICES Takes of Marine Mammals Incidental to Specified Activities: Biorka Island Dock Replacement Project, 17805-17808 2019-08391 Chevron Richmond Refinery Long Wharf Maintenance and Efficiency Project in San Francisco Bay, CA, 17788-17804 2019-08415 Rocky Intertidal Monitoring Surveys along the Oregon and California Coasts, 17784-17788 2019-08392 Nuclear Regulatory Nuclear Regulatory Commission NOTICES Meetings; Sunshine Act, 17893 2019-08529 Occupational Safety Health Adm Occupational Safety and Health Administration NOTICES Grant of Expansion of Recognition: Curtis-Strauss LLC, 17892-17893 2019-08433 Patent Patent and Trademark Office NOTICES Hearings: Report Required by the Study of Underrepresented Classes Chasing Engineering and Science Success Act, 17809-17810 2019-08437 Securities Securities and Exchange Commission NOTICES Agency Information Collection Activities; Proposals, Submissions, and Approvals, 17901-17902 2019-08469 Application: M-CAM International LLC, et al., 17899-17901 2019-08468 Self-Regulatory Organizations; Proposed Rule Changes: Cboe BZX Exchange, Inc., 17902-17906 2019-08400 Cboe C2 Exchange, Inc., 17894-17897 2019-08398 MIAX Emerald, LLC, 17906-17907 2019-08401 Municipal Securities Rulemaking Board, 17897-17899 2019-08399 Social Social Security Administration NOTICES Privacy Act; Systems of Records, 17907-17908 2019-07452 State Department State Department NOTICES Charter Renewal: Advisory Committee for the Study of Eastern Europe and the Independent States of the Former Soviet Union, 17908 2019-08382 Culturally Significant Object Imported for Exhibition: “Paganini in Columbus” Exhibition and “Il Cannone with the Columbus Symphony” Concert Assembly, 17909 2019-08412 Culturally Significant Objects Imported for Exhibition: The Allure of Matter: Material Art of China, 17908-17909 2019-08410 Transportation Department Transportation Department See Federal Aviation Administration See Federal Highway Administration See Federal Motor Carrier Safety Administration U.S. Citizenship U.S. Citizenship and Immigration Services NOTICES Agency Information Collection Activities; Proposals, Submissions, and Approvals: Application for Action on an Approved Application or Petition, 17868 2019-08378 Application to Replace Permanent Resident Card, 17870 2019-08376 Medical Certification for Disability Exceptions, 17870-17871 2019-08384 Request for Hearing on a Decision in Naturalization Proceedings under Section 336, 17868-17869 2019-08377 Customs U.S. Customs and Border Protection NOTICES Agency Information Collection Activities; Proposals, Submissions, and Approvals: Application for Withdrawal of Bonded Stores for Fishing Vessels and Certificate of Use, 17867-17868 2019-08431 Separate Parts In This Issue Part II Commerce Department, National Oceanic and Atmospheric Administration, 17916-17929 2019-08440 2019-08441 Reader Aids Consult the Reader Aids section at the end of this issue for phone numbers, online resources, finding aids, and notice of recently enacted public laws. To subscribe to the Federal Register Table of Contents electronic mailing list, go to https://public.govdelivery.com/accounts/USGPOOFR/subscriber/new, enter your e-mail address, then follow the instructions to join, leave, or manage your subscription. 84 81 Friday, April 26, 2019 Rules and Regulations DEPARTMENT OF AGRICULTURE Animal and Plant Health Inspection Service 7 CFR Part 354 [Docket No. APHIS-2013-0021] RIN 0579-AD77 User Fees for Agricultural Quarantine and Inspection Services AGENCY: Animal and Plant Health Inspection Service, USDA. ACTION: Interpretative rule and request for comments. SUMMARY: On May 13, 2016, the Air Transport Association of America filed suit against the Animal and Plant Health Inspection Service (APHIS), claiming APHIS' 2015 final rule setting fee structures for its Agricultural Quarantine Inspection

(AQI)program (Docket No. APHIS-2013-0021, effective December 28, 2015) violated the Administrative Procedure Act. In its March 28, 2018 Order, the U.S District Court for the District of Columbia rejected challenges based on the calculations and methods for setting the fees and APHIS' adoption of the final rule. However, the Court also held that APHIS improperly relied on an expired provision in the relevant statute to justify its ability to levy a fee to support a reserve account. In so doing, the Court did “not evaluate or rule on the agency's current argument that it has authority to fund a reserve” pursuant to other statutory authority. In this clarification to the final rule, APHIS clarifies that, while we accept the court's holding that congressional authority under one specific provision of the statute to maintain a reasonable balance in the reserve account expired in 2002, this expiration does not abrogate our authority to collect for a reserve, as that authorization is written into other provisions of the statute. This interpretation is consistent with APHIS' long-standing precedent as set forth in prior rulemakings. The agency is only seeking comments related to the legal authority for the reserve component of AQI User Fee Program and is not reexamining any other aspect of the program at this time, including the AQI User Fee calculation. DATES: The interpretive rule is issued April 26, 2019. We will consider all comments that we receive on or before May 28, 2019. ADDRESSES: You may submit comments by either of the following methods: • *Federal eRulemaking Portal:* Go to *http://www.regulations.gov/#!docketDetail;D=APHIS-2013-0021* . • *Postal Mail/Commercial Delivery:* Send your comment to Docket No. APHIS-2013-0021, Regulatory Analysis and Development, PPD, APHIS, Station 3A-03.8, 4700 River Road, Unit 118, Riverdale, MD 20737-1238. Any comments we receive may be viewed at *http://www.regulations.gov/#!docketDetail;D=APHIS-2013-0021* or in our reading room, which is located in Room 1141 of the USDA South Building, 14th Street and Independence Avenue SW, Washington, DC. Normal reading room hours are 8 a.m. to 4:30 p.m., Monday through Friday, except holidays. To be sure someone is there to help you, please call

(202)799-7039 before coming. FOR FURTHER INFORMATION CONTACT: Mr. George Balady, AQI User Fee Coordinator, Office of the Executive Director-Policy Management, PPQ, APHIS, 4700 River Road, Unit 131, Riverdale, MD 20737 1231;

(301)851-2338; Email: *AQI.User.Fees@aphis.usda.gov* . SUPPLEMENTARY INFORMATION: I. Background On May 13, 2016, the Air Transport Association of America filed suit against the Animal and Plant Health Inspection Service (APHIS), claiming APHIS' 2015, final rule (80 FR 66748-66779, Docket No. APHIS-2013-0021, effective December 28, 2015) setting fee structures for its Agricultural Quarantine Inspection

(AQI)program violated the Administrative Procedure Act. In its March 28, 2018, Order, the U.S. District Court for the District of Columbia affirmed APHIS' cost methodology and the sufficiency of its data. The Court remanded to APHIS the reserve portion of the final rule updating user fees for the AQI program. The Court expressly did not vacate the rule pending further explanation by the agency. *See Air Transport Ass'n of Am.* v. *U.S. Dep't of Agric,* 317 F. Supp. 3d 385, 392 (D.D.C. 2018). In its memorandum opinion accompanying that order, the Court stated that the agency unreasonably relied on the “reasonable balance” allowance in 21 U.S.C. 136a(a)(1)(C) of the Food, Agriculture, Conservation, and Trade

(FACT)Act of 1990, 21 U.S.C. 136a, to justify its continued fee collection to maintain a reserve, as that allowance expired after fiscal year 2002. The Court did not rule on whether APHIS had authority for continued fee collection to maintain a reserve under any other subsection of the FACT Act and, therefore, remanded to the Agency for “reconsideration of its authority to charge a surcharge for the reserve account.” *See Air Transport Ass'n,* 303 F. Supp. 3d at 57. The Court expressly declined to consider APHIS' explanation in its legal filings that, consistent with its past explanations and practice, APHIS justified its authority to collect such fees under other of subsections of 21 U.S.C. 136a(a)(1). *Air Transport Ass'n of Am., Inc.* 303 F. Supp. 3d at 51; *see, e.g.,* User Fees for Agricultural Quarantine & Inspection Services, 71 FR 49984 (August 24, 2006). The Court did “not evaluate or rule on the agency's . . . argument that it had authority to fund a reserve under” a different part of the statute, and instead remanded the rule to the agency without vacating for further consideration of the agency's authority. *Id.* In this clarification to the final rule, APHIS restates its longstanding practice and authority under 21 U.S.C. 136a(a)(1)(A) and

(B)provide for its continued collection of user fees to maintain a reserve in the AQI User Fee Account. II. Clarification of Authority A. The Rulemaking at Issue The FACT Act authorizes APHIS to collect user fees to fully fund its AQI Program. These user fees must be sufficient to cover the costs of: • Providing AQI services to commercial vessels, commercial trucks, commercial railroad cars, commercial aircraft, and international passengers in connection with the arrival, at a port in the customs territory of the United States (21 U.S.C. 136a(a)(1)(A)); • Providing preclearance or preinspection at a site outside the customs territory of the United States to international passengers, commercial vessels, commercial trucks, commercial railroad cars, and commercial aircraft (21 U.S.C. 136a(a)(1)(A)); and • Administering the AQI Program (21 U.S.C. 136a(a)(1)(B)). In the April 25, 2014, **Federal Register** (79 FR 22895), we issued a proposal to update the methodology by which APHIS would calculate user fees across user fee classes. Such a change was necessary to address historic underfunding for the AQI Program and to create a system whereby future adjustments to the user fee schedule could be easily made to more accurately reflect actual costs. In the 2015 final rule (80 FR 66748), we applied an activity-based-costing methodology to determine the appropriate user fee for each user fee group in a manner that accurately reflects individual user fee costs and protects users against cross-subsidization across user fee groups. The 2014 proposed rule cited APHIS's authority to maintain a “reasonable reserve,” without specifically articulating which subsection of the FACT Act granted it authority to do so; however, the 2015 final rule used the phrase “reasonable balance.” While not explicitly citing 21 U.S.C. 136a(a)(1)(C) to justify continued collection with respect to the AQI Reserve, APHIS acknowledges the unexplained change in nomenclature could lead to an interpretation of the rule to mean that APHIS was, in fact, relying on that subsection, which states that the Secretary of Agriculture may prescribe and collect fees sufficient, “through fiscal year 2002, to *maintain a reasonable balance* in the Agricultural Quarantine Inspection User Fee Account established under paragraph (5)” 21 U.S.C. 136a(a)(1)(C) (emphasis added). B. Further Clarification of APHIS' Authority To Maintain a Reserve in Response to the Court's Orders In light of the Court's remand, and after further review, APHIS is clarifying that subsections 136a(a)(1)(A) and

(B)of the FACT Act provide adequate authority to continue setting user fees in amounts to maintain the AQI Reserve. This conclusion is consistent with APHIS' longstanding practice, which has been explained to the public through multiple rulemaking proceedings, beginning in 2002. In a November 16, 1999, final rule, APHIS amended the regulations but inadvertently indicated that the fees would only remain in effect through September 30, 2002. *See* 64 FR 62089. To remedy the oversight, APHIS published an interim rule and request for comments on September 3, 2002. *See* 67 FR 56217. In this interim rule, APHIS stated that its authority to maintain a reasonable balance expired on September 30, 2002. *See id.* Still, APHIS reiterated that it had authority to collect user fees for “providing AQI services *in connection* with the arrival at a port in the customs territory of the United States” and for “ *administering* the user fee program[.]” *Id.* (emphasis added). APHIS stated further that, “[t]his interim rule will extend *existing* user fee rates and continue to allow the collection of the fees beyond September 30, 2002. Collection of these fees is necessary for the continuance of specific border inspection activities that are essential to protect U.S. agriculture from plant and animal disease and pest threats.” *Id.* (emphasis added). The existing fees included the cost of maintaining the reserve, which was in place at this time. *Id.* On January 24, 2003, this interim rule became final without revision after no comments were received. On December 9, 2004, APHIS revised its user fee regulations in another interim rule and request for comments. *See* 69 FR 71660. In this rule, APHIS did not mention its ability to maintain a reasonable reserve balance in its background section; however, it did state that the Act gives it the authority to collect user fees for “providing AQI services *in connection* with the arrival at a port in the customs territory of the United States” and for “ *administering* the user fee program[.]” *Id.* (emphasis added). To explain its rationale for wanting a reserve balance equal to 25 percent of annual operating costs for APHIS and CBP AQI activities in the AQI account, APHIS stated: The reserve fund provides us with a means to ensure the continuity of AQI services in cases of fluctuations in activity volumes, bad debt, carrier insolvency, or other unforeseen events, such as those of September 11, 2001, which, as noted earlier, resulted in substantial cost increases for the AQI programs and lower-than-anticipated revenues. Maintaining an adequate reserve fund is, therefore, essential for the AQI program. *Id.* at 71664. In the final rule, published August 24, 2006, APHIS responded (71 FR 49985) to comments regarding the need to maintain a 25 percent reserve fund. In our response, we explained that a 25 percent reserve is needed to ensure continuity of AQI services in cases of fluctuations in activity volumes. Without this reserve, a significant drop in international passenger travel, such as occurred post 9/11, would be catastrophic to the program. Full-time personnel would have to be furloughed and services would have to be reduced. As travel volumes returned to normal, the AQI program would need to recruit, replace, and/or rehire the furloughed employees. This disruptive and costly process would increase the cost of AQI services and, consequently, necessitate higher user fees going forward. Moreover, during this time, there would be a drastically increased risk of the introduction of harmful plant pests in the United States. Conversely, the 25 percent reserve also allows for growth in the AQI program should APHIS find it necessary to supplement inspection services due to, for example, a sudden increase in demand. Finally, a 25 percent reserve is needed to account for the lag in AQI user fee collections. Payments are made into AQI user fee accounts for commercial aircraft and international airline passengers on a quarterly basis, with monies not remitted to APHIS until 1 month after the end of the quarter in which they were collected. Since the fourth quarter fees are not due, and therefore not received, until after the fiscal year is over, we are not able to use those funds to pay for providing AQI services for commercial airlines and international air passengers in the fiscal year in which they are earned. So, while not explicitly stated, APHIS had ceased relying on 21 U.S.C. 136a(1)(C) to justify its collection for the reserve in favor of reliance on sections (1)(A) and (1)(B). That same reasoning holds true today. Title 21 U.S.C. 136a(a)(1)(A) permits the Secretary of Agriculture to prescribe and collect fees sufficient to “cover the cost of providing agricultural quarantine and inspection *services in connection with* the arrival at a port in the customs territory of the United States, or the preclearance or preinspection at a site outside the customs territory of the United States, of an international passenger, commercial vessel, commercial aircraft, commercial truck, or railroad car” (emphasis added). Title 21 U.S.C. 136a(a)(1)(B), extends this authority to “cover the cost of administering” the AQI Program as well. As noted in both the 2014 proposed rule and the 2015 final rule, APHIS sets fees based on Federal guidance found in Office of Management and Budget Circular A-25 and Federal Accounting Standards Advisory Board Statement of Accounting Standards Number 4, which states that fees shall recover the full cost incurred by the government. Congress has been made expressly aware of the fact that the agency has been setting fees at a level to maintain a reasonable balance in the account since at least FY 2002. Each year since FY 2002, Congress asked APHIS to submit information on AQI user fee collections, including the balance in the reserve, and each year, APHIS has advised that its collections have resulted in a positive reserve balance. Additionally, on several occasions, the U.S. Government Accountability Office

(GAO)has reported to Congress on APHIS' maintenance of the reserve. *See* GAO, Federal User Fees: A Design Guide, GAO-08-386SP (May 2008) noting that “the AQI fee statute gives APHIS permanent authority to use the collected fees and APHIS maintains a reserve in case of emergency”; GAO, Agricultural Quarantine Inspection Fees: Major Changes Needed to Align Fee Revenues with Program Costs, GAO-13-268 (March 2013) discussing maintenance of AQI reserve; GAO, Federal User Fees: Fee Design Options and Implications for Managing Revenue Instability, GAO-13-820 (September 2013) discussing same; GAO, Federal User Fees: Key Considerations for Designing and Implementing Regulatory Fees, GAO-15-718 (September 2015) discussing same. APHIS has consistently explained in past rules that the reserve fund provides “a means to ensure the continuity of AQI services in cases of fluctuations in activity volumes, bad debt, carrier insolvency, or other unforeseen events, such as those of September 11, 2001, which . . . resulted in substantial cost increases for AQI programs and lower-than-anticipated revenues.” *See, e.g.,* 69 FR 71660-71664. At various times since AQI user fees were established, as a result of service demands, APHIS has had to rely on the AQI reserve fund to maintain its operations, nearly draining the reserve on at least one occasion. *See* 64 FR 62090. In December 2004, APHIS reported in an interim rulemaking that it was close to running out of money altogether. *See* 69 FR 71661. The reserve fund allows the program to ensure the continuity of services even under these service constraints, and therefore constitutes a cost of providing the services, as permitted by subsection 136a(a)(1)(A). Even when user fees are set at a level that keeps pace with current costs, the 3-month temporal lag between the end of the fiscal year and the conclusion of the calendar year inherently results in a significant delay in fee remittances. *See* 64 FR 43106. Because of cash management issues inherent in the program, the bulk of users remit their payments on a quarterly basis “with monies not remitted to APHIS until 1 month after the end of the quarter in which they were collected,” which is long after APHIS and U.S. Customs and Border Protection

(CBP)have performed their necessary services in connection with the AQI program. *See* 71 FR 49984. This remittance process was developed to offset some of the burden on the users for collecting fees on the government's behalf, such as with the airline passenger fee, by allowing them to retain any interest paid on collections they hold in trust. Collecting fees to cover these costs required to run the AQI program, which may go over and beyond the specific operational costs of a particular inspection but nonetheless fall within the scope of operating the program, reasonably constitutes “the costs of administering this subsection” within the meaning of 21 U.S.C. 136a(a)(1)(B). Because Congress has not provided specific guidance to APHIS on how to interpret 21 U.S.C. 136a(a)(1)(A) and (B), we construe these sections as providing authority to continue funding a reserve in order to ensure continuity of services as well as to protect the program from instability resulting from funding flow uncertainty, bad debt, and non-recurring financial obligations. Section (1)(A) provides congressional authority to set and collect fees to cover the cost of providing AQI services “in connection” with the arrival at a port in the customs territory of the United States. *See* 21 U.S.C. 136a(1)(A). Certain costs, such as upgrading facilities and replacing broken equipment, are not reoccurring costs and are therefore impossible to account for as line items in the court-approved ABC methodology for setting user fees. These onetime costs are still incurred “in connection” with the AQI program and must be factored into the overall user fees, as the statute demands full cost recovery. As such, there is no way to fund these obligations other than by accessing the AQI reserve. Additionally, section (1)(B) demands that APHIS “cover the cost of administering [the AQI program].” *See* 21 U.S.C. 136a(a)(1)(B). As stated above, there is a significant temporal lag between the rendering of services by APHIS and CBP and the collection of fees to cover these services. Sometimes, fees are not collected at all even though the services have already been performed. For instance, bad debt may result from a commercial airline filing for bankruptcy. *See* 71 FR 49985. Administratively, if a bad debt arises, the Act requires APHIS to cover it since the services have already been performed and the costs have already been incurred. Therefore, a reserve is essential to prevent the AQI program from running a deficit, which could result in personnel furloughs or interruptions in service. Such interruptions would significantly increase the risk that the United States could be exposed to animal and plant pests from foreign countries. The Court affirmed APHIS' cost methodology and the sufficiency of its data, and expressly did not vacate any portion of the existing rule. This interpretative rule relates only to the legal authority for the reserve component of the AQI User Fee Program. The final rule, which took effect in 2015, 80 FR 66748, remains in force, *Air Transport Ass'n,* 317 F. Supp. 3d at 392. Accordingly, this interpretive rule does not affect, inter alia, the user fee calculation with respect to the AQI Reserve. 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. Done in Washington, DC, this 22nd day of April 2019. Kevin Shea, Administrator, Animal and Plant Health Inspection Service. [FR Doc. 2019-08394 Filed 4-25-19; 8:45 am]

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