livery,2 support,3 and administrative 4 costs; and

(C) Divide the cost of issuing certificates by the estimated number of certificates to be issued to obtain a "raw" fee. The State may round the "raw" fee up to the nearest quarter, if necessary for ease of calculation, collection, or billing; or

(ii) Calculation of a "cost-per-hour” fee. The State must:

(A) Estimate the annual number of hours taken to issue certificates by adding together delivery 2, support 3, and administrative4 hours;

(B) Determine the total cost of issuing certificates by adding together delivery, support, and administrative costs; and

(C) Divide the cost of issuing certificates by the estimated number of hours taken to issue certificates to obtain a "cost-per-hour" fee. The State may round the "cost-per-hour" fee up to the nearest quarter, if necessary for ease of calculation, collection, or billing.

(5) The APHIS user fees are:

(i)(A) $30 for a certificate for a commercial shipment; or

(B) $19 for a certificate for a lowvalue commercial shipment, if the following criteria are met:

2Delivery costs are costs such as employee salary and benefits, transportation, per diem, travel, purchase of specialized equipment, and user fee costs associated with maintaining field offices. Delivery hours are similar hours taken by inspectors, including travel time, inspection time, and time taken to complete paperwork.

3 Support costs are costs at supervisory levels which are similar to delivery costs, and user fee costs such as training, automated data processing, public affairs, enforcement, legal services, communications, postage, budget and accounting services, and payroll, purchasing, billing, and collecting services. Support hours are similar hours taken at supervisory levels, as well as hours taken in training, automated data processing, enforcement, legal services, communication, budgeting and accounting, payroll purchasing, billing, and collecting.

"Administrative costs are costs incurred as a direct result of collecting and monitoring Federal phytosanitary certificates. Administrative hours are hours taken as a direct result of collecting and monitoring Federal phytosanitary certificates.

(1) the items being shipped are identical to those identified on the phytosanitary certificate;

(2) the shipment is accompanied by an invoice which states that the items being shipped are worth less than $1,250; and

(3) the shipper requests that user fee charged be based on the low value of the shipment;

(ii) $19 for a certificate for a noncommercial shipment;

(iii)(A) $30 for a certificate for reexport of a commercial shipment; or

(B) $19 for a certificate for reexport of a low value commercial shipment, if the following criteria are met:

(1) The items being shipped are identical to those identified on the phytosanitary certificate;

(2) The shipment is accompanied by an invoice which states that the items being shipped are worth less than $1,250; and

(3) The shipper requests that the user fee charged be based on the low value of the shipment;

(iv) $30 for a processed product certificate for a commercial shipment; (v) $6 for reissuing any certificate or certificate for reexport; and

(h) Refunds of APHIS user fees. (1) A shipper who pays for a block of certificates to cover commercial shipments may obtain a refund or a credit against future APHIS user fees under the following circumstances:

(i) If a certificate from the block is voided;

(ii) If a certificate from the block is returned unused;

(iii) If the shipper pays for inspection outside of normal business hours (8 a.m. to 4:30 p.m.) under §354.1 of this part.

(iv) If a certificate from the block is used for a noncommercial shipment; or (v) If a certificate from the block is used to reissue another certificate.

(2) The amount of any refund or credit will be the amount overcharged, less $6 to cover APHIS administrative expenses.

(i) Payment methods. For payment of any of the APHIS user fees required in paragraph (g) of this section, we will accept personal checks for amounts less than $100, and checks drawn on commercial accounts, cashier's checks,

certified checks, traveler's checks, and money orders for any amount. All payments must be for the exact amount due.

[56 FR 14844, Apr. 12, 1991, as amended at 57 FR 769, 770, Jan. 9, 1992; 57 FR 62472, 62473, Dec. 31, 1992; 58 FR 14307, Mar. 17, 1993; 58 FR 38270, July 16, 1993]

§354.4 User fees for certain domestic services.

(a) Individual agreements for inspection services at ports of entry. (1) Operators and owners of vessels or aircraft, or their agents, may enter into agreements with APHIS to receive, at points of entry in the United States inspection services in addition to the regular or on-call services available in connection with such vessels or aircraft.

(2) Agreements may be made to cover the following types of services;

(i) Opening and operating a new inspection station at a port of entry; and (ii) Providing one-time or occasional inspection services at a location where APHIS does not normally provide such services.

(3) Owners and operators of vessels or aircraft, or their agents, must contact the Regional Director, USDA, APHIS, Plant Protection and Quarantine,5 for the State where they want APHIS to provide services, to make an agreement.

(4) All agreements must include the following:

(i) Name, mailing address, and telephone number of the operator or owner of the vessel or aircraft, or, if applicable, the operator's or owner's agent;

(ii) Explanation of inspection services to be provided;

(iii) Date(s) and time(s) inspection services will be provided;

(iv) Location (street address, port of entry, berth, dock, gate, etc.) and if applicable, identity (identification number, name, etc.) of vessel or aircraft or other thing to be inspected;

5 A list of the Regional Directors, USDA, APHIS, Plant Protection and Quarantine and the States for which they are responsible, may be obtained from the Animal and Plant Health Inspection Service, Plant Protection and Quarantine, Operational Support-Director's Office, 4700 River Road, Unit 131, Riverdale, Maryland 20737-1236.

(v) An estimate of the actual cost, as calculated by APHIS, to provide the described inspection services for 6 months;

(vi) A statement that APHIS agrees⠀⠀ to provide the described inspection services;

(vii) A statement that the owner or operator of the vessel or aircraft, or if a appropriate, his or her agent, agrees to r pay, at the time the agreement is entered into, a user fee equal to the estimated cost of providing the described inspection services for 6 months;

(viii) A statement that APHIS will credit an amount equal to all user fees received for services provided at the location to the owner or operator's account, until the total amount of user fees credited to the account is equal to ↑ the amount of money paid into the account by the owner or operator of the vessel or aircraft, or if appropriate, his or her agent, at the time the agree- *** ment was entered into; and

(ix) A statement that the owner or operator of the vessel or aircraft, or if appropriate, his or her agent, agrees to maintain a balance in the user fee payment account equal to the cost of providing the services described for 6 months, as calculated monthly by APHIS.

(5) APHIS will enter into an agreement only if qualified personnel can be made available to provide the services to be provided.

(6) An agreement can be terminated by either party on 30 days written notice.

(7) If, at the time an agreement is terminated, any unobligated funds remain in the user fee account, APHIS will return them to the owner or operator, or his or her agent.

[57 FR 770, Jan. 9, 1992, as amended at 57 FR 14475, Apr. 21, 1992; 58 FR 38269, July 16, 1993; 59 FR 67611, Dec. 30, 1994]

§354.5 Penalties for nonpayment or late payment of user fees.

(a) If a person requesting a service for which an APHIS user fee is payable, is delinquent in paying any APHIS user fee due under either title 7 or title 9, Code of Federal Regulations, or is delinquent in paying the interest on any delinquent APHIS user fee, then

APHIS will not provide the service requested.

(b) If APHIS is in the process of providing a service for which an APHIS user fee is due, and the user has not paid the fee within the time required, or if the payment offered by the user is insufficient or not in compliance with the regulations in this part, then APHIS will take the following action:

(1) If an APHIS user fee is due for a certificate or a certificate for reexport, APHIS will not issue the certificate.

(2) If an APHIS user fee is past due by more than 30 days, APHIS will impose a late payment penalty and interest charges in accordance with 31 U.S.C. 3.17.

1 Pursuant to section 11 of the Act (16 U.S.C. 1540) it is unlawful for any person to knowingly violate any provision of the Act, any permit or certificate issued under the Act, or any regulation promulgated under the Act. Further, section 11 of the Act provides for criminal, civil, and administrative penalties for any such violation.

2 Plant Protection and Quarantine also administers programs under the Lacey Act Amendments of 1981 (16 U.S.C. 3401 et seq.), the Plant Quarantine Act, as amended (7 U.S.C. 151 et seq.), the Federal Plant Pest Act, as amended (7 U.S.C. 150aa et seq.), and the Federal Noxious Weed Act of 1974 (7 U.S.C. 2801 et seq.) which contain authority for additional prohibitions and restrictions on the importation of plants subject to this part (see other parts of 7 CFR chapter III for regulations containing prohibitions and restrictions under these authorities).

Subpart-Inspections and Related

Provisions

355.20 Marking and notification requirements for plants imported, exported, or reexported by means other than mail. 355.21 Marking and mailing requirements for plants imported, exported, or reexported by mail.

355.22 Validation of documentation. 355.23 Recordkeeping, access, and reports. AUTHORITY: 16 U.S.C. 1532, 1538, and 1540; 7 CFR 2.22, 2.80, and 371.2(c).

SOURCE: 49 FR 42912, Oct. 25, 1984, unless otherwise noted.

Subpart-Purpose and Definitions $355.1 Purpose.

Pursuant to the Endangered Species Act of 1973, as amended (16 U.S.C. 1531 et seq.), the Secretary is responsible for the enforcement of the provisions of the Act and Convention which pertain to the importation, exportation, or reexportation of terrestrial plants. The regulations in this part are for the purpose of implementing this authority. Regulations of the U.S. Department of the Interior which interrelate with the regulations in this part are contained in 50 CFR chapter I.

§355.2 Definitions.

Terms used in the singular form in this part shall be construed as the plural, and vice versa, as the case may demand. The following terms, when used in this part, shall be construed, respectively, to mean:

Act. The Endangered Species Act of 1973, as amended (16 U.S.C. 1531 et seq.).

Convention. The Convention on International Trade in Endangered Species of Wild Fauna and Flora, TIAS 8249, 27 U.S.T. 1087, signed on March 3, 1973, and the Appendices thereto.

Deputy Administrator. The Deputy Administrator of the Animal and Plant Health Inspection Service for Plant Protection and Quarantine, U.S. Department of Agriculture, or any other officer or employee of the Department to whom authority to act in his or her stead has been or may hereafter be delegated.

Engage in business as an importer, exporter, or reexporter of terrestrial plants. To import, export, or reexport terrestrial plants for the purpose of selling,

bartering, collecting, or otherwise exchanging or acquiring the plants as a livelihood or enterprise engaged in for gain or profit. This term shall not include persons engaged in business merely as carriers or customhouse brokers.

Export (exported, exporting, exportation). To carry, send, take, transport or otherwise remove, or to attempt to carry, send, take, transport or otherwise remove from any place subject to the jurisdiction of the United States.

Import (imported, importing, importation). To land on, bring into, or introduce into, or attempt to land on, bring into, or introduce into, any place subject to the jurisdiction of the United States, whether or not such landing, bringing, or introduction constitutes an importation within the meaning of the customs laws of the United States.

Inspector. Any employee of Plant Protection and Quarantine, Animal and Plant Health Inspection Service, U.S. Department of Agriculture, or other person, authorized by the Deputy Administrator in accordance with law to enforce the provisions of the Act and Convention, and regulations promulgated thereunder.

Person. Any individual, corporation, partnership, trust, association, or any other private entity; or any officer, employee, agent, department, or instrumentality of the Federal Government, of any State or political subdivision thereof or of any foreign government.

Plant. Any member of the plant kingdom, including seeds, roots and other parts thereof.

Plant Protection and Quarantine. The organizational unit within the Animal and Plant Health Inspection Service, U.S. Department of Agriculture, delegated responsibility for enforcing provisions of the Act and Convention, and regulations promulgated thereunder.

Reexport (reexported, reexportation). To export following importation.

Secretary. The Secretary of Agriculture, or any other officer or employee of the Department of Agriculture to whom authority to act in his or her stead has been or may hereafter be delegated.

Terrestrial plants. Any plants (including epiphytic plants), except marine plants.

Validation. An original stamp, signature, and date of inspection placed upon documentation required by 50 CFR part 17 or part 23 by an inspector at the port where the terrestrial plants are to be imported, exported or reexported.

United States. Any of the several States, the District of Columbia, the Commonwealth of Puerto Rico, American Samoa, the U.S. Virgin Islands, Guam, and the Trust Territory of the Pacific Islands.

Subpart-Permission to Engage in

Business

§355.10 Permission to engage in business concerning nonlisted terrestrial plants.

The Secretary hereby grants permission for any person engaged in business as an importer, exporter, or reexporter of terrestrial plants, other than terrestrial plants listed in 50 CFR 17.12 or 23.23, to engage in such business without a general permit issued under § 355.11.

§ 355.11 General permits.3

(a) On or after March 26, 1985 no person shall engage in business as an importer, exporter, or reexporter of any terrestrial plants listed in 50 CFR 17.12 or 23.23 unless such person has obtained a general permit for engaging in such business from Plant Protection and Quarantine.

(b) An application for a general permit shall be submitted to the Animal and Plant Health Inspection Service, Plant Protection and Quarantine, Port Operations, 4700 River Road, Unit 139, Riverdale, Maryland 20737-1236. The

3 This permit is named a "general permit" in order to avoid confusion with "permits" obtained under the Act from the U.S. Department of the Interior to accompany the importation, exportation, or reexportation of plants under U.S. Department of the Interior regulations, and to avoid confusion with "permits" obtained from Plant Protection and Quarantine for the importation of plants under the Plant Quarantine Act, as amended (7 U.S.C. 151 et seq.) and the Federal Noxious Weed Act of 1974 (7 U.S.C. 2801 et seq.).

completed application shall include the following information:4

(1) Date of application;

(2) Applicant's name, mailing address, and telephone number;

(3) If the applicant is an individual, the business affiliation, if any, having to do with the importation, exportation, or reexportation of terrestrial plants listed in 50 CFR 17.12 or 23.23;

(4) If the applicant is in the name of a business or if the applicant is affiliated with a business which imports, exports, or reexports terrestrial plants listed in 50 CFR 17.12 or 23.23, the form of the business, e.g., corporation, firm, partnership; and the name and address of each partner, officer, director, holder, and owner of 10 percent or more of the voting stock, and employee in a managerial or executive capacity;

(5) The address of all applicants' business locations, including but not limited to locations of nurseries, growing fields, propagating beds, holding beds and similiar facilities where activities relating to terrestrial plants listed in 50 CFR 17.12 or 23.23 would be conducted;

(6) A brief and complete description of the nature of the applicant's business as it relates to engaging in business as an importer, exporter, or reexporter of terrestrial plants listed in 50 CFR 17.12 or 23.23;

(7) Any address where books or records concerning the importation, exportation, or reexportation of terrestrial plants listed in 50 CFR 17.12 or 23.23 would be kept;

(8) Name, address, and telephone number of the person authorized to make records or plant inventories available for examination by inspectors or other duly authorized representatives of the Secretary; and

(9) Certification by signature of the applicant (must be a partner or officer if the applicant is a business) after the following language: "I hereby certify

Application forms are available without charge from the Animal and Plant Health Inspection Service, Plant Protection and Quarantine, Port Operations, 4700 River Road, Unit 139, Riverdale, Maryland 20737-1236, or from local offices at any of the ports designated in 50 CFR part 24. Telephone numbers and addresses of local offices are listed in telephone directories.

that the information in this application is complete and accurate to the best of my knowledge and belief."

(c) Each application for a general permit must be accompanied by a check or money order for $70 made payable to Plant Protection and Quarantine. The fee shall not be refunded if the application is denied or abandoned. (d) After receipt and review of the application by Plant Protection and Quarantine, a general permit for the importation, exportation, and reexportation of terrestrial plants listed in 50 CFR 17.12 or 23.23 shall be issued if the applicant has submitted an application containing all information requested in paragraph (b) of this section, if the applicant has paid the fee in accordance with paragraph (c) of this section, and if a general permit of the applicant or anyone responsibly connected with the business of the applicant has not been and is not denied, suspended or revoked pursuant to paragraph (i) of this section.

(e) The applicant shall be notified in writing by Plant Protection and Quarantine of the approval or denial of any request for a general permit. If a general permit is denied, the notification shall state the reasons therefor. If a general permit is denied, the applicant may request a hearing pursuant to paragraph (i)(1) of this section and may submit to Plant Protection and Quarantine, in writing, reasons why the permit should not have been denied. Such submissions of the applicant shall not be considered a new application if submitted within 60 days following the receipt of notification of the denial by the applicant.

(f) Upon receipt of an incomplete or improperly executed application, the applicant shall be notified by Plant Protection and Quarantine of the deficiency of the application. If the applicant fails to supply the deficient information or otherwise fails to correct the deficiency within 60 days following the receipt of the notification by the applicant, the application shall be considered abandoned.

(g) Upon receipt of an application filed with an insufficient fee, or without a fee, the application and any fee submitted will be returned to the applicant.

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