21 U.S.C. § 387s — User fees

(a) Establishment of quarterly fee: Starting June 22, 2009, the Secretary must charge and collect user fees from every manufacturer and importer of tobacco products covered by this subchapter. The fees are charged each quarter of the fiscal year. The total collected each year equals the amount set in (b)(1), subject to the limits in (c). (b) Assessment of user fee. (1) Amount of assessment: The total fees allowed each fiscal year are set by law: $85,000,000 for 2009 (subject to (e)); $235,000,000 for 2010; $450,000,000 for 2011; $477,000,000 for 2012; $505,000,000 for 2013; $534,000,000 for 2014; $566,000,000 for 2015; $599,000,000 for 2016; $635,000,000 for 2017; $672,000,000 for 2018; and $712,000,000 for 2019 and every year after. (2) Allocations of assessment by class of tobacco products. (A) In general: Each year, the total fee for each class of tobacco product equals that class's "applicable percentage" multiplied by the year's total fee amount from (1). (B) Applicable percentage: (i) The classes are: cigarettes; cigars (small and other); snuff; chewing tobacco; pipe tobacco; and roll-your-own tobacco. (ii) Each class's percentage is the one set under 7 U.S.C. 518d(c) for that year. (iii) No class gets charged a fee unless it's listed in section 387a(b), or the Secretary has made a rule saying it's covered. (iv) If a class isn't listed or covered by rule, its share of fees gets spread across the classes that are covered, using the same relative percentages from (ii). (3) Determination of user fee by company. (A) Each company's total quarterly fee equals its percentage share (from (4)) multiplied by that class's share of the quarter's total fee (from (2)). (B) No company has to pay more than its percentage share. (4) Allocation of assessment within each class: Each company's percentage share is set the same way as under subsections (e) through (h) of 7 U.S.C. 518d. (5) Allocation for cigars: For cigars, instead of (4), each company's share is based on the excise taxes it paid the prior fiscal year. (6) Timing of assessment: The Secretary must tell each company its quarterly fee amount at least 30 days before the quarter ends. Companies must pay by the last day of the quarter. (7) Memorandum of understanding. (A) The Secretary must ask the relevant federal agency to sign an agreement to regularly share the information needed for (2)(B)(ii) and (4), and information about all fee-paying manufacturers and importers. The Secretary must keep any confidentiality rules that agency has set. (B) Starting no later than fiscal year 2015, the Secretary must make sure the FDA can calculate the percentages in (2) and (4) — including, if needed, by contracting with that other agency to keep providing the information. (c) Crediting and availability of fees. (1) Fees can only be spent up to the amount Congress appropriates in advance, subject to (2)(D). Unspent fees stay available until spent. Money can be transferred between FDA salary and expense accounts as needed. (2) Availability. (A) Appropriated fees can only pay for FDA's tobacco regulation work under this subchapter and the Family Smoking Prevention and Tobacco Control Act — except for the startup reimbursement in (C). (B) Prohibition against use of other funds: (i) Except as in (ii), fees are the only money allowed to pay for tobacco regulation work. (ii) That rule doesn't apply until October 1, 2009 — before then, other FDA money (not fees) can cover startup costs. (C) Reimbursement of start-up amounts: (i) Money spent on startup under (B)(ii) must be paid back from later appropriated fees, so FDA's other programs end up with no net loss of funds, for the period October 1, 2008 through September 30, 2010. (ii) Reimbursed money goes back to the programs it originally came from, available until September 30, 2010, even past normal yearly limits. (D) Fees can be collected through September 30, 2009 under the startup rule in (B)(ii), and stay available until spent; they get credited to FDA's salaries and expenses account. (E) Once Congress appropriates fees for fiscal year 2010, FDA can spend on startup costs in advance, expecting to be repaid from fee collections, under 31 U.S.C. 1534. (3) Authorization of appropriations: For fiscal year 2009 and every year after, Congress is authorized to appropriate the amount set in (b)(1) for that year. (d) Collection of unpaid fees: If the Secretary doesn't get a fee payment within 30 days after it's due, the fee becomes a debt owed to the U.S. government, handled like other government debt claims under subchapter II of chapter 37 of title 31. (e) Applicability to fiscal year 2009: If the Family Smoking Prevention and Tobacco Control Act became law during fiscal year 2009, three special rules apply, still subject to (c): (1) The Secretary must figure out what a single quarter's fee would be, based on (b) applied to the fiscal-year-2009 amount in (b)(1)(A) — called the "quarterly fee amounts." (2) For the quarter when the law was enacted, the fee is a prorated amount, based on the days left in that quarter (counting the enactment date) times the daily rate of the quarterly fee amount. That prorated fee isn't collected until the next quarter. (3) For the quarter after that, the full quarterly fee amount is charged and collected, on top of collecting the prorated fee from (2).