[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]


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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.

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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]
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