[Federal Register Volume 75, Number 149 (Wednesday, August 4, 2010)]
[Proposed Rules]
[Pages 46859-46861]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2010-19098]


 ========================================================================
 Proposed Rules
                                                 Federal Register
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 This section of the FEDERAL REGISTER contains notices to the public of 
 the proposed issuance of rules and regulations. The purpose of these 
 notices is to give interested persons an opportunity to participate in 
 the rule making prior to the adoption of the final rules.
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  Federal Register / Vol. 75, No. 149 / Wednesday, August 4, 2010 / 
Proposed Rules  

[[Page 46859]]



DEPARTMENT OF AGRICULTURE

Animal and Plant Health Inspection Service

7 CFR Part 357

[Docket No. APHIS-2009-0018]
RIN 0579-AD11


Lacey Act Implementation Plan; Definitions for Exempt and 
Regulated Articles

AGENCY: Animal and Plant Health Inspection Service, USDA.

ACTION: Proposed rule.

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SUMMARY: In response to recent amendments to the Lacey Act, we are 
proposing to establish definitions for the terms ``common cultivar'' 
and ``common food crop.'' The amendments to the Act expanded its 
protections to a broader range of plant species, extended its reach to 
encompass products, including timber, that derive from illegally 
harvested plants, and require that importers submit a declaration at 
the time of importation for certain plants and plant products. Common 
cultivars and common food crops are among the categorical exemptions to 
the provisions of the Act. The Act does not define the terms ``common 
cultivar'' and ``common food crop'' but instead gives authority to the 
U.S. Department of Agriculture and the U.S. Department of the Interior 
to define these terms by regulation. Our proposed definitions would 
specify which plants and plant products will be subject to the 
provisions of the Act, including the declaration requirement.

DATES: We will consider all comments that we receive on or before 
October 4, 2010.

ADDRESSES: You may submit comments by either of the following methods:
     Federal eRulemaking Portal: Go to (http://www.regulations.gov/fdmspublic/component/main?main=DocketDetail&d=APHIS-2009-0018) to submit or view comments 
and to view supporting and related materials available electronically.
     Postal Mail/Commercial Delivery: Please send two copies of 
your comment to Docket No. APHIS-2009-0018, Regulatory Analysis and 
Development, PPD, APHIS, Station 3A-03.8, 4700 River Road Unit 118, 
Riverdale, MD 20737-1238. Please state that your comment refers to 
Docket No. APHIS-2009-0018.
    Reading Room: You may read any comments that we receive on this 
docket in our reading room. The reading room 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) 690-2817 before coming.
    Other Information: Additional information about APHIS and its 
programs is available on the Internet at (http://www.aphis.usda.gov).

FOR FURTHER INFORMATION CONTACT: Mr. George Balady, Senior Staff 
Officer, Quarantine Policy Analysis and Support, PPQ, APHIS, 4700 River 
Road Unit 60, Riverdale, MD 20737-1231; (301) 734-8295.

SUPPLEMENTARY INFORMATION:

Background

    The Lacey Act (16 U.S.C. 3371 et seq.), first enacted in 1900 and 
significantly amended in 1981, is the United States' oldest wildlife 
protection statute. The Act combats trafficking in ``illegal'' 
wildlife, fish, and plants. The Food, Conservation, and Energy Act of 
2008, effective May 22, 2008, amended the Lacey Act by expanding its 
protections to a broader range of plants and plant products (Section 
8204, Prevention of Illegal Logging Practices). As amended, the Lacey 
Act now makes it unlawful to import, export, transport, sell, receive, 
acquire, or purchase in interstate or foreign commerce any plant, with 
some limited exceptions, taken in violation of any Federal, State, 
tribal, or foreign law that protects plants. The Lacey Act also now 
makes it unlawful to make or submit any false record, account, or label 
for, or any false identification of, any plant covered by the Act.
    In addition, Section 3 of the Lacey Act, as amended, makes it 
unlawful, beginning December 15, 2008, to import certain plants and 
plant products without an import declaration. The declaration must 
contain, among other things, the scientific name of the plant, value of 
the importation, quantity of the plant, and name of the country from 
which the plant was harvested. Currently, enforcement of the 
declaration requirement is being phased in, as described in two notices 
we published in the Federal Register (74 FR 5911-5913 and 74 FR 45415-
45418, Docket No. APHIS-2008-0119).
    Under the Act, ``Plant'' means: ``Any wild member of the plant 
kingdom, including roots, seeds, parts or products thereof, and 
including trees from either natural or planted forest stands.'' There 
are three categories of plants that are exempt from the provisions of 
the Act:
    1. Common cultivars, except trees, and common food crops (including 
roots, seeds, parts, or products thereof);
    2. Scientific specimens of plant genetic material (including roots, 
seeds, germplasm, parts, or products thereof) that are to be used only 
for laboratory or field research;
    3. Plants that are to remain planted or to be planted or replanted. 
The amendments to the Lacey Act, including the declaration 
requirements, still apply for items described under 2 and 3 if the 
plant is listed:
     In an appendix to the Convention on International Trade in 
Endangered Species of Wild Fauna and Flora (CITES, 27 UST 1087; TIAS 
8249);
     As an endangered or threatened species under the 
Endangered Species Act of 1973 (ESA, 16 U.S.C. 1531 et seq.); or
     Pursuant to any State law that provides for the 
conservation of species that are indigenous to the State and are 
threatened with extinction.

Purpose and Scope

    The U.S. Department of Agriculture (USDA) and the U.S. Department 
of the Interior (DOI) have been given authority under the Lacey Act to 
define the terms ``common cultivar'' and ``common food crop.'' In 
accordance with this authority, USDA's Animal and Plant Health 
Inspection Service (APHIS) and DOI's U.S. Fish and Wildlife Service 
(FWS) have developed definitions for those terms. We propose to 
establish a new part in the plant-related provisions of title 7, 
chapter III of the Code of Federal Regulations (CFR), which will 
contain these definitions.

[[Page 46860]]

    The definitions, which are discussed below, are designed to ensure 
that the exemptions do not place at risk plants of conservation 
concern. Species of plants listed as endangered or threatened under the 
Endangered Species Act, listed in the CITES Appendices, or protected 
under State law are excluded from exemption because they are, for 
purposes of the Lacey Act, not common. However, the fact that a plant 
is not listed as endangered or threatened does not mean that it is 
necessarily a common one. In order to ensure that the exemption from 
the provisions of the Act applies only to plants that are common food 
crops or cultivars, the definitions are limited to plants of species 
grown on a commercial scale.
    As we propose to define them, these terms would apply to the entire 
species or hybrid of plant; the determination of whether a plant falls 
within these definitions is not made at the shipment or facility level. 
For example, bananas are a common food crop because bananas in general 
meet the definition of a common food crop. It is not necessary to 
determine whether specimens of bananas in a particular shipment or from 
a particular facility meet the definition. The definition for ``common 
cultivar'' is consistent with the definition of ``cultivar'' contained 
in 50 CFR 23.5 (the CITES regulations promulgated by FWS). The 
definition for ``common food crop'' was developed with consideration 
of, and is consistent with, common dictionary definitions and terms in 
commercial use.

Definitions

    We propose to define the terms ``common cultivar'' and ``common 
food crop'' as follows:
    Common cultivar. A plant (except a tree) that:
    (a) Has been developed through selective breeding or other means 
for specific morphological or physiological characteristics; and
    (b) Is a species or hybrid that is cultivated on a commercial 
scale; and
    (c) Is not listed:
    (1) In an appendix to the Convention on International Trade in 
Endangered Species of Wild Fauna and Flora (27 UST 1087; TIAS 8249);
    (2) As an endangered or threatened species under the Endangered 
Species Act of 1973 (16 U.S.C. 1531 et seq.); or
    (3) Pursuant to any State law that provides for the conservation of 
species that are indigenous to the State and are threatened with 
extinction.
    Common food crop. A plant that:
    (a) Has been raised, grown, or cultivated for human or animal 
consumption, and
    (b) Is a species or hybrid that is cultivated on a commercial 
scale; and
    (c) Is not listed:
    (1) In an appendix to the Convention on International Trade in 
Endangered Species of Wild Fauna and Flora (27 UST 1087; TIAS 8249);
    (2) As an endangered or threatened species under the Endangered 
Species Act of 1973 (16 U.S.C. 1531 et seq.); or
    (3) Pursuant to any State law that provides for the conservation of 
species that are indigenous to the State and are threatened with 
extinction.
    In addition, we propose to add a definition for ``plant'' 
consistent with the definition in the Act, to read as follows: ``Any 
wild member of the plant kingdom, including roots, seeds, parts or 
products thereof, and including trees from either natural or planted 
forest stands.''
    As we explained above, these definitions are designed to ensure 
that the exemptions do not place at risk plants of conservation 
concern, while exempting plants grown on a commercial scale. They are 
also designed to be consistent with existing and commonly understood 
definitions of the terms, as well as to be consistent with the 
provisions of the Lacey Act.
    To supplement these definitions, we will provide guidance in the 
form of a list of examples of plant taxa or commodities that qualify 
for exemption from the provisions of the Act as common cultivars and 
common food crops. USDA and DOI will develop and maintain this list on 
a Web site and update it when necessary. We will inform our 
stakeholders when the list is updated via email and other electronic 
media. We will also note updates of the list on APHIS's Web site. This 
list will not be exhaustive, but we will provide an email address to 
which the public can send inquiries about specific taxa or commodities 
and request to add taxa or commodities to the list.

Executive Order 12866 and Regulatory Flexibility Act

    This proposed rule has been determined to be significant for the 
purposes of Executive Order 12866 and, therefore, has been reviewed by 
the Office of Management and Budget.
    In accordance with the Regulatory Flexibility Act, we have analyzed 
the potential economic effects of this action on small entities. The 
analysis is summarized below. Copies of the full analysis are available 
by contacting the person listed under FOR FURTHER INFORMATION CONTACT 
or on the Regulations.gov Web site (see ADDRESSES above for 
instructions for accessing Regulations.gov).
    Recent amendments to the Lacey Act expanded its protections to a 
broader range of plant species, extended its reach to encompass 
products, including timber, that derive from illegally harvested 
plants, and require that importers submit a declaration at the time of 
importation for certain plants and plant products. Common cultivars and 
common food crops are among the categorical exemptions to the 
provisions of the Act. The Act does not define the terms ``common 
cultivar'' or ``common food crop,'' but instead gives authority to the 
USDA and the DOI to define these terms by regulation. This proposed 
rule provides these definitions.
    To the extent that the proposed rule defines which products are 
exempted from the provisions of the Act, it would benefit U.S. 
importers, large and small. By defining the terms ``common cultivar'' 
and ``common food crop,'' the proposed rule would facilitate importer 
understanding of and compliance with the Act's requirements.
    ``Common cultivar'' and ``common food crop'' are defined in this 
proposed rule to ensure that the exemptions do not place at risk plants 
of conservation concern. The definitions are also consistent with the 
terms' existing and commonly understood definitions. Since the terms 
have not previously been defined, there should be no instances in which 
an importer would be required because of this rule to make declarations 
for commodities that are not now being declared. In other words, the 
definitions presented in this rule and the related exemptions should 
not result in additional costs for importers based on their current 
activities. On the other hand, APHIS has estimated that about 5 percent 
of declarations being made under the current stage of phased in 
enforcement of the Act are either for common cultivars or common food 
crops that would be exempted under the proposed definitions. The costs 
incurred in making these declarations are a measure of the expected 
benefits of the rule. We estimate the total annual cost savings 
associated with these declarations alone would be between $900,000 and 
$2.8 million. Note that the full implementation of the declaration 
requirement would cover far more product categories than currently 
require a declaration.

Executive Order 12988

    This proposed rule has been reviewed under Executive Order 12988, 
Civil Justice Reform. If this proposed rule is adopted: (1) All State 
and local laws and

[[Page 46861]]

regulations that are inconsistent with this rule will be preempted; (2) 
no retroactive effect will be given to this rule; and (3) 
administrative proceedings will not be required before parties may file 
suit in court challenging this rule.

Paperwork Reduction Act

    This proposed rule contains no new information collection or 
recordkeeping requirements under the Paperwork Reduction Act of 1995 
(44 U.S.C. 3501 et seq.).

List of Subjects in 7 CFR Part 357

    Endangered and threatened species, Plants (Agriculture).
    Accordingly, we are proposing to amend Title 7, subtitle B, chapter 
III, of the Code of Federal Regulations as follows:
    1. A new part 357 is added to read as follows:

PART 357--CONTROL OF ILLEGALLY TAKEN PLANTS

Sec.
357.1 Purpose and scope.
357.2 Definitions.

    Authority: 16 U.S.C. 3371 et seq.; 7 CFR 2.22, 2.80, and 
371.2(d).


Sec.  357.1  Purpose and scope.

    The Lacey Act, as amended (16 U.S.C. 3371 et seq.), makes it 
unlawful to import, export, transport, sell, receive, acquire, or 
purchase in interstate or foreign commerce any plant, with some limited 
exceptions, taken in violation of any Federal, State, tribal, or 
foreign law that protects plants. The Lacey Act also makes it unlawful 
to make or submit any false record, account, or label for, or any false 
identification of, any plant covered by the Act. In addition, the Act 
requires that importers submit a declaration at the time of importation 
for certain plants and plant products. Common cultivars and common food 
crops are among the categorical exemptions to the provisions of the 
Act. The Act does not define the terms ``common cultivar'' and ``common 
food crop'' but instead gives authority to the U.S. Department of 
Agriculture and the U.S. Department of the Interior to define these 
terms by regulation. The regulations in this part provide the required 
definitions.


Sec.  357.2  Definitions.

    Common cultivar. A plant (except a tree) that:
    (a) Has been developed through selective breeding or other means 
for specific morphological or physiological characteristics; and
    (b) Is a species or hybrid that is cultivated on a commercial 
scale; and
    (c) Is not listed:
    (1) In an appendix to the Convention on International Trade in 
Endangered Species of Wild Fauna and Flora (27 UST 1087; TIAS 8249);
    (2) As an endangered or threatened species under the Endangered 
Species Act of 1973 (16 U.S.C. 1531 et seq.); or
    (3) Pursuant to any State law that provides for the conservation of 
species that are indigenous to the State and are threatened with 
extinction.
    Common food crop. A plant that:
    (a) Has been raised, grown, or cultivated for human or animal 
consumption; and
    (b) Is a species or hybrid that is cultivated on a commercial 
scale; and
    (c) Is not listed:
    (1) In an appendix to the Convention on International Trade in 
Endangered Species of Wild Fauna and Flora (27 UST 1087; TIAS 8249);
    (2) As an endangered or threatened species under the Endangered 
Species Act of 1973 (16 U.S.C. 1531 et seq.); or
    (3) Pursuant to any State law that provides for the conservation of 
species that are indigenous to the State and are threatened with 
extinction.
    Plant. Any wild member of the plant kingdom, including roots, 
seeds, parts or products thereof, and including trees from either 
natural or planted forest stands.
    Done in Washington, DC, this 26\th\ day of July 2010.

Ann Wright,
Acting Under Secretary for Marketing and Regulatory Programs.
[FR Doc. 2010-19098 Filed 8-3-10; 8:45 am]
BILLING CODE 3410-34-S