[Federal Register: October 3, 2005 (Volume 70, Number 190)]
[Rules and Regulations]
[Page 57486-57487]
From the Federal Register Online via GPO Access [wais.access.gpo.gov]
[DOCID:fr03oc05-2]
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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.
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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