[Federal Register Volume 76, Number 126 (Thursday, June 30, 2011)]
[Proposed Rules]
[Pages 38330-38332]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2011-16406]
=======================================================================
-----------------------------------------------------------------------
DEPARTMENT OF AGRICULTURE
Animal and Plant Health Inspection Service
7 CFR Part 357
[Docket No. APHIS-2010-0129]
RIN 0579-AD44
Implementation of Revised Lacey Act Provisions
AGENCY: Animal and Plant Health Inspection Service, USDA.
ACTION: Advance notice of proposed rulemaking.
-----------------------------------------------------------------------
SUMMARY: The Food, Conservation and Energy Act of 2008 amended the
Lacey Act to provide, among other things, that importers submit a
declaration at the time of importation for certain plants and plant
products. The declaration requirements of the Lacey Act became
effective on December 15, 2008, and enforcement of those requirements
is being phased in. We are soliciting public comment on regulatory
options that could address certain issues that have arisen with the
implementation of the declaration requirement. These options include
establishing certain exceptions to the declaration requirement and
modifying the Declaration Form PPQ 505 to simplify the collection of
information.
DATES: We will consider all comments that we receive on or before
August 29, 2011.
ADDRESSES: You may submit comments by either of the following methods:
Federal eRulemaking Portal: Go to http://www.regulations.gov/#!documentDetail;D=APHIS-2010-0129-0001.
Postal Mail/Commercial Delivery: Send your comment to
Docket No. APHIS-2010-0129, Regulatory Analysis and Development, PPD,
APHIS, Station 3A-03.8, 4700 River Road Unit 118, Riverdale, MD 20737-
1238.
Supporting documents and any comments we receive on this docket may
be viewed at http://www.regulations.gov/#!docketDetail;D=APHIS-2010-
0129 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) 690-2817 before coming.
FOR FURTHER INFORMATION CONTACT: Mr. George Balady, Staff Officer,
Quarantine Policy, Analysis and Support, PPQ, APHIS, 4700 River Road
Unit 60, Riverdale, MD 20737-1231; (301) 734-5783.
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, or plants. The Food, Conservation and Energy Act of
2008, effective May 22, 2008, amended the Lacey Act by expanding its
protection to a broader range of plants and plant products (Section
8204, Prevention of Illegal Logging Practices). 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, possessed, transported, or sold in violation of the
laws of the United States, a State, an Indian tribe, or any 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.
In addition, Section 3 of the Lacey Act, as amended, makes it
unlawful, beginning December 15, 2008, to import certain plants,
including plant products, without an import declaration. The
declaration must contain 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.
On October 8, 2008, we published a notice in the Federal Register
(73 FR 58925-58927, Docket No. APHIS 2008-0119) announcing our plans to
begin phased-in enforcement of the declaration requirement on April 1,
2009, and providing dates and products covered for the first three
phases of enforcement. We solicited comments on the proposed plan for
phasing in enforcement for 60 days ending on December 8, 2008, and
received 124 comments by that date. On February 3, 2009, we published a
second notice in the Federal Register (74 FR 5911-5913, Docket No.
APHIS 2008-0119) and provided a revised, more detailed phase-in
schedule based on comments we received in response to the October
notice. We solicited comment on the revised phase-in plan for 60 days
ending on April 6, 2009, and received 41 comments by that date. The
comments covered a range of topics, including the scope of the
declaration requirement, the specific products covered in each phase,
definitions of terms, length of phases, effects on trade and industry,
and enforcement issues. On September 2, 2009, we published a third
notice in the Federal Register (74 FR 45415-45418, Docket No. APHIS-
2008-0119) and provided a further revised, more detailed phase-in
schedule based on comments we received in response to the April notice
as well as our experience with implementation to that date. We
solicited comment on the revised phase-in plan for 60 days ending on
November 2, 2009, and received 67 comments by that date.
We are publishing this advance notice of proposed rulemaking in
order to seek information and develop regulatory options on the
following issues:
1. Whether an exception from the declaration requirement for
products containing minimal amounts of plant material could be
developed that would be less burdensome while still carrying out the
intent of the Lacey Act amendments;
2. How importers may comply with the declaration requirement when
importing composite plant products whose genus, species, and country of
harvest of some or all of the plant material may be extremely difficult
or prohibitively expensive to determine;
3. How to accommodate products made of re-used plant materials, or
plant materials harvested or manufactured prior to the 2008 Lacey Act
amendments, and for which identifying country of harvest, and possibly
species, would be difficult if not impossible; and
4. Whether groups of species commonly used in commercial
production, could be given a separate name that could be entered on the
declaration form as a type of shorthand identification of genus and
species, such as the currently recognized ``SPF'' acronym for ``spruce,
pine, and fir.''
Declaration Requirement for Shipments Containing Minimal Plant
Materials
The Lacey Act does not explicitly address whether the declaration
requirement is intended to apply to imported products that contain only
minimal amounts of plant material. It is not ideal to apply this
requirement to minimal amounts of non-listed (i.e., not
[[Page 38331]]
of conservation concern) plant materials contained in an otherwise non-
plant product, such as wooden buttons on a shirt. Instead this issue
might be efficiently addressed by describing a level at which the
declaration requirement does not apply. Some commenters on our previous
notices referred to this as a de minimis exception from the declaration
requirement. Such a de minimis exception would be designed to ensure
that the declaration requirement fulfills the purposes of the Lacey Act
without unduly burdening commerce. Therefore, the exception would not
apply to products containing plant material from species of
conservation concern that are 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 (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.
We are considering the feasibility of defining a de minimis
exception for products containing minimal amounts of plant material. We
invite comment on defining a threshold in terms of the volume, weight,
or value of plant material in each item being imported, or using some
combination of all three measures. We also invite comment on whether
the threshold of the plant material should be set at 2 percent, 5
percent, or 10 percent of a product, and whether that percentage of the
plant content should be based on volume, weight, or value of the item
being imported. We also seek public comment on whether the de minimis
exception should be based on a certain percentage of just one of these
characteristics (volume, weight, or value) of the entry, or whether it
should be based on a combination of two or three of these
characteristics.
Declaration Requirement for Goods With Composite Plant Materials
The Lacey Act's declaration requirements do not address the issue
of how to comply with the declaration requirements when importing goods
for which identifying all of the plant material in the product by genus
and species is extremely difficult or prohibitively expensive; however,
the comments received to date demonstrate that many composite plant
products are manufactured in a manner that makes identification of the
genus and species of all of the plant content difficult and perhaps
prohibitively expensive.
One approach we are considering is to define the term ``composite
plant materials'' and then formally recognize a de minimis exception
from the declaration requirement for products containing such materials
for the purposes of Section 3 of the Lacey Act. Using this approach, we
might define ``composite plant materials'' as plant products and plant-
based components of products where the original plant material is
mechanically or chemically broken down and subsequently re-composed or
used as an extract in a manufacturing process. Such a definition would
also need to include exceptions for species listed in an appendix to
CITES; as an endangered or threatened species under the Endangered
Species Act of 1973; or pursuant to any State law that provides for the
conservation of species that are indigenous to the State and are
threatened with extinction.
We also invite comments on two possible approaches to incorporating
such a definition into a de minimis exception from the declaration
requirement for composite plant materials. In the first approach, if
the plant product being imported is composed in whole or in part of a
composite plant material, importers would have to identify the genus,
species, and country of harvest of no less than a given percentage of
the composite plant material content, measured on the basis of either
weight or volume.
In the second approach, where the plant product being imported is
composed in whole or in part of a composite plant material, the
declaration would have to contain the average percent composite plant
content, measured on the basis of either weight or volume, without
regard for the species or country of harvest of the plant, in addition
to information as to genus, species, and country of harvest for any
non-composite plant content.
We invite comment on the possibility of defining composite plant
products and implementing either of the approaches described above. We
particularly invite comment on the possibility of using the Genus spp.
format (for example, Acer spp.) for certain composite plant materials
in limited circumstances both as to the scope of composite plant
materials covered and the scope of the circumstances in which the
format may be used for those limited materials. We also invite comment
on possible percentages that could be used as a threshold for a de
minimis exception from the declaration requirement for composite plant
materials.
Declaration Requirement for Dated Products
We recognize that it may be difficult to determine and report the
scientific name and/or country of harvest of plants in some products
made of re-used plant materials, or harvested or manufactured prior to
the passage of the Lacey Act Amendments of 2008. We do not believe that
it was the intention of the amendments to prevent all such products
from entering the United States. However, the Act as amended, including
the plant import declaration requirement, applies to all imports of
plants, plant parts, and products thereof as of the effective date of
the amendments. We currently allow an importer to declare that the
product being imported was manufactured prior to May 22, 2008, and that
in the exercise of due care the genus, species, and/or country of
harvest is unknown. The importer must still provide on the declaration
form all known or reasonably knowable genus, species, and country of
harvest information, and, as explained below, the person completing the
declaration must certify that the declaration is correct to the best of
his or her knowledge. An Animal and Plant Health Inspection Service-
designated Special Use Code is provided to streamline the declaration
of materials manufactured prior to the amendment. We anticipate that
this approach would allow for trade in existing inventories and would
diminish in use rapidly, ultimately applying largely to antique
products, or those being re-sold. We invite comments on this practice.
Declaration Revision
Public comments and our experience implementing the declaration to
date have drawn attention to the need to revise the declaration form to
improve its effectiveness and remove unnecessary burdens associated
with providing the required information. Comments on previous notices
have drawn particular attention to the burden associated with providing
scientific name, country of harvest, and plant quantity information for
each plant component of products in a shipment, especially when the
declaration is required for complex products, such as furniture. In
response to these comments, we simplified the declaration so that the
scientific name and country of harvest information need not be reported
for each article or component of an article in an entry but can instead
be provided for the entry as a whole. That is, the amount of each
species, by country of harvest, is
[[Page 38332]]
required only in total for each Harmonized Tariff Schedule code.
Importers are still permitted to report the scientific name information
by article or component of article if that organizational structure is
preferable. This has significantly reduced the lines of data entry
required while causing little reduction in the enforcement utility of
the information. However, the importer of record is still required to
maintain records documenting the information used to calculate these
total amounts for 5 years, should it be needed to facilitate an
inspection or substantiate the totals provided.
The declaration could also be revised to substitute a new term in
place of the term ``country of harvest,'' which experience has
indicated is so similar to the Customs term ``country of origin'' as to
be confusing. We are considering using the phrase ``harvest location
(by country)'' to attempt to more clearly distinguish this information
from the Customs concept of country of origin of the merchandise.
The declaration form could be further revised to accommodate the
changes and proposals described above. These changes could include
revision of the form to collect information required for composite
materials (the percent composite material in the shipment, for which it
is not possible to identify species and/or country of harvest). In
addition, the revised form could have a box that would have to be
checked when an importer needs to report goods manufactured prior to
May 22, 2008, for which the importer cannot determine, in the exercise
of due care, the genus, species and/or country of harvest of those
plant products. The box would state that the plant products were
manufactured prior to May 22, 2008, and that in the exercise of due
care, the importer has been unable to determine the genus, species,
and/or country of harvest information that is lacking on the
declaration form.
We are soliciting comments on these possible changes to the
declaration form.
Declaration of Genus and Species Using Species Groupings
We also recognize that the declaration requirement to identify the
genus and species of all plants that may be contained in covered
products may frequently require declarations to contain long lists of
species. A number of commenters requested that recognized groups of
common species often traded in combination in similar percentages in
particular industries be allowed to be declared under a single
shorthand definition. In a previous notice we specifically invited
comments on the use of species groups, such as ``SPF'' for spruce, pine
and fir, when such groups accurately describe the species that may be
contained in the product(s) covered by the declaration. We received a
number of comments supporting this approach and no comments in
opposition. Therefore, we have begun to provide reference codes for
such groups, along with the lists of species included in each group, on
the APHIS Web site at http://www.aphis.usda.gov/plant_health/lacey_act/.
In addition, we invite proposals for additional groupings to be
considered. Any proposal for a species group should contain the
complete list of species to be included and additional information with
which we can evaluate the extent to which the proposed group is
currently represented in goods in international trade. Only those
species group codes posted on the APHIS Web site can be used to meet
the requirement to provide genus and species information on the plant
import declaration.
The Web site also contains the text of the Lacey Act, as amended,
the declaration form and enforcement schedule, guidance on compliance
with the provisions of the Act, and links to previous Federal Register
publications. The Web site will be updated as new materials become
available.
Persons interested in receiving updates on APHIS's Lacey Act
efforts should register for our stakeholder registry at https://web01.aphis.usda.gov/PPQStakeWeb2.nsf and select ``Lacey Act
Declaration'' as a topic of interest.
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.
Authority: 16 U.S.C. 3371 et seq.; 7 CFR 2.22, 2.80, and
371.2(d).
Done in Washington, DC, this 24th day of June 2011.
Kevin Shea,
Acting Administrator, Animal and Plant Health Inspection Service.
[FR Doc. 2011-16406 Filed 6-29-11; 8:45 am]
BILLING CODE 3410-34-P