Federal Register, Volume 85 Issue 41 (Monday, March 2, 2020)

[Federal Register Volume 85, Number 41 (Monday, March 2, 2020)]
[Rules and Regulations]
[Pages 12207-12213]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2020-04165]

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Rules and Regulations
Federal Register
________________________________________________________________________

This section of the FEDERAL REGISTER contains regulatory documents
having general applicability and legal effect, most of which are keyed
to and codified in the Code of Federal Regulations, which is published
under 50 titles pursuant to 44 U.S.C. 1510.

The Code of Federal Regulations is sold by the Superintendent of Documents.

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Federal Register / Vol. 85, No. 41 / Monday, March 2, 2020 / Rules
and Regulations

[[Page 12207]]

DEPARTMENT OF AGRICULTURE

Animal and Plant Health Inspection Service

7 CFR Part 357

[Docket No. APHIS-2013-0055]
RIN 0579-AD44

Lacey Act Implementation Plan: De Minimis Exception

AGENCY: Animal and Plant Health Inspection Service, USDA.

ACTION: Final rule.

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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 requirement of the Lacey Act became effective
on December 15, 2008, and enforcement of that requirement is being
phased in. We are amending the regulations to establish an exception to
the declaration requirement for products containing a minimal amount of
plant materials. This action would relieve the burden on importers
while continuing to ensure that the declaration requirement fulfills
the purposes of the Lacey Act.

DATES: Effective April 1, 2020.

FOR FURTHER INFORMATION CONTACT: Mrs. Dorothy Wayson, Agriculturist,
Permitting and Compliance Coordination, PPQ, APHIS, 4700 River Road
Unit 60, Riverdale, MD 20737-1236; (301) 851-2036.

SUPPLEMENTARY INFORMATION:

I. Executive Summary

Need for the Regulatory Action

Section 3 of the Lacey Act makes it unlawful to import certain
plants, including plant products, without an import declaration. The
import declaration serves as a tool to collect information regarding
the content of a shipment, which aids in combatting illegal trade in
timber and timber products by ensuring importers provide required
information. Information from the declaration is also used to monitor
implementation of Lacey Act requirements. 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.
However, the Act does not explicitly address whether the declaration
requirement is intended to apply to imported products that contain
minimal plant material. This final rule establishes limited exceptions
to the declaration requirement for entries of products containing
minimal plant material. This action relieves the burden on importers
while ensuring that the declaration requirement continues to fulfill
the purposes of the Lacey Act.

Legal Authority for the Regulatory Action

The Food, Conservation, and Energy Act of 2008 amended the Lacey
Act by expanding its protections to a broader range of plants and plant
products than was previously provided by the Act. The requirement that
importers of plants and plant products file a declaration upon
importation is set forth in 16 U.S.C. 3372(f). In 16 U.S.C. 3376(a)(1),
the statute further provides rulemaking authority to the Secretary of
Agriculture with respect to the declaration requirement: ``the
Secretary, after consultation with the Secretary of the Treasury, is
authorized to issue such regulations . . . as may be necessary to carry
out the provisions of sections 3372(f), 3373, and 3374 of this title.''

Summary of Major Provisions of the Regulatory Action

This final rule establishes certain exceptions from the requirement
that a declaration be filed when importing certain plants and plant
products. Specifically, it establishes an exception to the declaration
requirement for products with minimal amounts of plant material. The
final rule also establishes a new section to specify the conditions
under which a plant import declaration must be filed and what
information it must include. These conditions reflect the provisions of
the Act and provide additional context for the exceptions.

Costs and Benefits

To the extent that the rule provides exceptions to declaration
submission, it will benefit certain U.S. importers. It relieves
importers of the burden of submitting declarations for products with
very small amounts of plant material, while continuing to ensure that
the declaration requirement fulfills the purposes of the Lacey Act.

II. 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 illegally taken
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, among other things, ``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 any law, treaty, or regulation of the United
States or in violation of any Indian tribal law,'' or in violation of
any State or foreign law that protects plants or that regulates certain
specified plant-related activities. 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 import
declaration serves as a tool for combatting the illegal trade in timber
and timber products by ensuring importers provide required information.
Information from the declaration is also used to monitor compliance
with Lacey Act prohibitions. 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 July 9, 2018, we published in the Federal Register (83 FR 31697-
31702, Docket No. APHIS-2013-0055) a

[[Page 12208]]

proposal \1\ to amend the regulations by establishing an exception to
the declaration requirement for products containing a minimal amount of
plant materials. We also proposed that all Lacey Act declarations be
submitted within 3 business days of importation.
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\1\ To view the proposed rule, supporting document, and the
comments we received, go to http://www.regulations.gov/#!docketDetail;D=APHIS-2013-0055.
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We solicited comments concerning our proposal for 60 days ending
September 7, 2018. We received 11 comments by that date. They were from
private citizens, trade and industry associations, courier delivery
services, and conservation groups. They are discussed below by topic.

Scope

Two commenters stated that it is unclear from the rule if the
exceptions to the declaration requirement would apply only to those
products on the Lacey enforcement schedule or if they would apply to
all products, and asked that we clarify the scope of the proposed rule.
The de minimis exception to the declaration requirement will apply
to all products subject to the Lacey Act. Importers of articles
currently listed on the Lacey Act enforcement schedule will receive the
most immediate benefit from the exception.\2\
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\2\ The Lacey Act plant declaration enforcement schedule can be
viewed on the APHIS website at http://www.aphis.usda.gov/plant_health/lacey_act.
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Another commenter stated that the economic analysis must consider
the full scope of the proposal and not just current practice. The same
commenter added that the Animal and Plant Health Inspection Service
(APHIS) only considered the impact on importers and wholesalers, noting
that it is common for manufacturers, retailers, and distributors to
also directly import wood products.
Impacts of the exception to the declaration requirement for
articles currently listed on the Lacey Act enforcement schedule were
evaluated in the initial regulatory impact analysis. We have prepared a
final regulatory impact analysis for this rule in which we evaluate
potential impacts of the de minimis exception to the declaration
requirement for articles currently in the enforcement schedule. The de
minimis exception will not immediately impact articles that are not yet
on the enforcement schedule because they do not currently require
submission of a declaration. Impacts on manufacturers and retailers are
included in the Regulatory Impact Analysis & Final Regulatory
Flexibility Analysis supporting this rule. A summary of the analysis
appears below under the heading ``Executive Orders 12866, 13563, 13771,
and Regulatory Flexibility Act.'' Copies of the full analysis are
available on the Regulations.gov website (see footnote 1 in this
document for a link to Regulations.gov) or by contacting the person
listed under FOR FURTHER INFORMATION CONTACT. For the sake of clarity,
the term ``importer'' is used to represent import agents, as well as
wholesalers, manufacturers, retailers, and distributors who import
products directly.

Definitions

We proposed to define the terms import and person, and to amend the
definition for plant so that all three definitions in the regulations
conform to the definitions in the statute.
Some commenters expressed concern that the definition of import
that we proposed is too broad. These commenters stated that adopting
this definition would increase regulatory burden on importers and place
burden on individuals traveling with their musical instruments. The
commenters stated that the declaration requirement should apply only to
formal consumption entries, and not to informal entries, personal
importations, transit and exportation customs bonds, carnet
importations, foreign trade zones, and warehouse entries (with some
exceptions). Two commenters stated that APHIS should align the
definition of import with the customs definition.
The definition of import that we proposed is the same as the
definition in the Lacey Act. In a notice published in the Federal
Register on February 3, 2009 (74 FR 5911, Docket No. APHIS-2008-
0119),\3\ we stated that we would be enforcing the declaration
requirement only for formal consumption entries (i.e., most commercial
shipments). In that notice we also stated that we did not intend yet to
enforce the declaration requirement for informal entries (i.e., most
personal shipments), personal importations, mail (unless subject to
formal entry), transportation and exportation entries, in-transit
movements, carnet importations (i.e., merchandise or equipment that
will be re-exported within a year), or upon admittance into a U.S.
foreign trade zone or bonded warehouse. We clarified that the
declaration is currently being enforced for all formal consumption
entries of plant and plant products into the United States, including
those entries from foreign trade zones and bonded warehouses, in a
notice published in the Federal Register on June 16, 2016 (81 FR 39247-
39248, Docket No. APHIS-2008-0119).
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\3\ To view the notice and the comments we received, go to
http://www.regulations.gov/#!docketDetail;D=APHIS-2008-0119.
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Some commenters stated that there should be an exception to the
declaration requirement for items in transit. One commenter stated
further that such an exception is supported by the definition of import
suggested by the Model Law of International Trade in Wild Fauna and
Flora.\4\
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\4\ The Model Law can be viewed online at https://cites.org/sites/default/files/eng/prog/Legislation/E-Model%20law-updated-clean.pdf.
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As we explained above, the definition of import that we proposed is
the same definition that appears in the Lacey Act, and we have stated
that we do not intend at this time to enforce the declaration
requirement for in-transit movements.
One commenter noted that the current declaration form asks for
``country of harvest'' rather than ``the name of the country from which
the plant was taken'' and suggested adding a definition of taken to
prevent confusion.
APHIS notes that the term taken is defined in 16 U.S.C. 3371(j). We
agree with the commenter that a definition of taken, consistent with
the language of the Act, should be added to the regulations. We have
therefore added a definition of taken to read ``captured, killed, or
collected, and with respect to a plant, also harvested, cut, logged, or
removed'' to Sec. 357.2. This definition is the same definition that
appears in the Act.

Declaration Requirement

We proposed to add a new Sec. 357.3, ``Declaration Requirement,''
to specify the conditions under which a plant import declaration must
be filed and what information it must include. These conditions reflect
the provisions of the Act and provide additional context for the
proposed exceptions.
One commenter asked for clarification that this section does not
require fewer fields than appear on the declaration form.
The information specified in this section is the same information
that is required by the Act. We continue to require additional
information on the declaration form that links the declaration to the
shipment. This is necessary to carry out the provisions of the Lacey
Act. If we make any changes to the declaration form in the future, we
will announce them through the stakeholder registry after receiving any
necessary approvals under the

[[Page 12209]]

Paperwork Reduction Act. We encourage interested persons to register
for our stakeholder registry at https://public.govdelivery.com/accounts/USDAAPHIS/subscriber/new/ and select ``Lacey Act Declaration''
under Plant Health Information as a topic of interest.
One commenter stated that the section should list the current
enforcement schedule or reference the existence of a separate
enforcement schedule in another section of the regulations.
The enforcement schedule is available on the APHIS website at
http://www.aphis.usda.gov/plant_health/lacey_act. The list is arranged
by provisions of the Harmonized Tariff Schedule of the United States
(HTSUS). Adding the enforcement schedule to the regulations is not
feasible because HTSUS provisions change frequently. However, we agree
with the commenter that a reference to available guidance, including
the enforcement schedule, in the regulations would be helpful, and have
amended Sec. 357.3 to add a new paragraph that directs the reader to
the APHIS website for more information. Any new guidance or enforcement
schedule, or modifications to a previous guidance or enforcement
schedule document, will be issued with appropriate public notice and
opportunity for feedback.

Exception From Declaration Requirement for Entries Containing Minimal
Plant Materials

We sought public comment on two options with respect to a de
minimis exception to the declaration requirement. Under the first
option, we proposed to adopt an exception from the declaration
requirement for products containing plant material that represents no
more than 5 percent of the total weight of the individual product unit,
provided that the total weight of the plant material in an entry of
such products (at the entry line level) does not exceed 2.9 kilograms.
Alternatively, as a second option, we proposed an exception from the
declaration requirement for products containing plant material that
represents no more than 5 percent of the total weight of the individual
product unit, provided that the total weight of the plant material in
an individual product unit does not exceed some amount of plant
material by weight or board feet. Under this second option, we invited
comment on what would be an appropriate maximum amount allowable by
weight or board feet under the de minimis exception. The figure of 2.9
kilograms in the first option was selected based on the weight of a
board-foot of lignum vitae (Guaiacum officinale and Guaiacum sanctum)
as an appropriately minimal amount of plant material. A board-foot
(that is, 12 x 12 x 1 inches or 30.48 x 30.48 x 2.54 centimeters) is a
common unit of volume in the timber industry, and the woods of these
species are among the densest known, weighing 1.23 grams per cubic
centimeter.
In the event that the weight of the plant material in an individual
product unit could not be determined, we proposed an exception from the
declaration requirement for products containing plant material that
represents no more than 10 percent of the declared value of the
individual product unit, provided that the total quantity of the plant
material in an entry of such products (at the entry line level) has a
volume of less than 1 board-foot. Alternatively, as a second option in
the event that the weight of the plant material in an individual
product unit could not be determined, we proposed an exception from the
declaration requirement for products containing plant material that
represents no more than 10 percent of the declared value of the
individual product unit, provided that the total quantity of the plant
material in an individual product unit does not exceed some amount of
plant material by weight or board feet. We invited comment on what
would be an appropriate maximum amount allowable by value or board feet
under the de minimis exception.
The commenters were generally supportive of the idea of
establishing a de minimis exception from the plant declaration
requirement for products with minimal amounts of plant material. These
commenters stated that whatever approach is adopted, it should be
simple, straightforward, and affordable for small and medium entities.
One commenter suggested that we adopt a conservative approach to
any exceptions so as not to exempt future product categories that
include illegal timber even in small quantities.
APHIS agrees with the commenter. Although importers will still be
responsible for meeting Lacey Act requirements other than the
declaration, setting the threshold for the de minimis exception to the
declaration requirement at too high a level would not be consistent
with the intent of the Lacey Act. For this reason we proposed and are
adopting a threshold of no more than 5 percent of the total weight of
the individual product unit, provided that the total weight of the
plant material in an entry of products in the same 10-digit HTSUS
provision does not exceed 2.9 kilograms.
One commenter stated that the declaration skews the volume figures
because importers take different approaches to the reporting
requirements. The commenter stated that some importers split the volume
among possible species, while others report the maximum volume possible
for each species. The same commenter also stated that for the value
option, it is unclear how such a calculation would be made as the value
of the imported item is known, but the value of the plant product prior
to its incorporation into a final product may not be known.
We agree with the commenter that implementation of de minimis
exceptions based on volume or value would present challenges. We have
therefore decided not to implement de minimis exceptions based on
volume or value at this time. We will continue to consider ways to
implement de minimis exceptions based on criteria other than weight to
the plant declaration requirement.
One commenter stated that they supported modified versions of the
proposed weight and volume exceptions with fixed and measurable weight
and volume limits per entry line. The commenter suggested that there
also be a value threshold that works in tandem with either of the
options (weight or volume) chosen to qualify for the de minimis
exception.
APHIS agrees that these modifications could provide an effective
way to implement de minimis exceptions and will consider them if we
propose additional exceptions in the future. One commenter supported
providing multiple options to importers to determine if their product
meets the threshold requirement (i.e., weight and value). The commenter
stated that as proposed, the regulations would only allow importers to
choose the second method of calculation if the first method cannot be
calculated. The commenter suggested that we should provide importers
with discretion to choose whichever option that makes most sense for
their business operations. As noted above, we have decided to implement
only the de minimis exception based on weight at this time. We will
take these suggestions into consideration if we propose additional
exceptions in the future.
Commenters expressed concern that using percentage of weight would
be a new process that importers would have to develop in order to take
advantage of the de minimis exception.
The commenters are correct that they may have to develop a new
process to take advantage of the de minimis exception. We anticipate,
however, that once importers have determined the percentage weight of
an individual

[[Page 12210]]

product unit and the maximum number of individual product units that
will meet the de minimis threshold, they will be able to use that as a
model for future shipments. We also anticipate that importers will only
develop a new process if they consider doing so to be less onerous than
filing the declaration.
One commenter stated that the cost of any procedure that depends on
trying to calculate the percentage of plant material as part of the
importing process on a transaction-by-transaction basis would far
outweigh any benefit gained from the proposed change and suggested that
APHIS allow importers to register their standard products that meet the
de minimis criteria, and in return APHIS would grant a blanket
exception for that set of products. Another commenter supported the use
of what they described as ``representative samples'' so that an
importer could use that analysis on multiple entries eliminating the
need for complex calculations on each and every entry.
As we explained above, we expect that once importers determine the
percentage weight for individual product units, they will be able to
use that as a model for future shipments. With respect to registering
representative samples or granting blanket exceptions, APHIS has
concerns that such measures could be difficult to enforce and are not
being pursued at this time.
One commenter expressed support for the current exceptions from the
declaration requirement for packaging material. The commenter stated
that APHIS should retain these exceptions and make it clear that the
requirements have not changed from current guidance.
APHIS notes that for purposes of the Lacey Act plant declaration
requirement, packaging material is any material used to support,
protect, or carry another item. This includes, but is not limited to,
items such as wood crating, wood pallets, cardboard boxes, and packing
paper used as cushioning. Under 16 U.S.C. 3372(f)(3), packaging
material is excluded from the declaration requirement unless the
packaging material itself is the item being imported. This is unchanged
by this final rule.
It may take some time for the de minimis exception to be
implemented in ACE. APHIS will announce the availability of the
disclaim code through the stakeholder registry, and importers may begin
using the disclaim code for the de minimis exception as soon as it is
available in ACE.

Time Limit for Submission of Declarations

Lacey Act plant declarations are required pursuant to the language
of the statute ``upon importation,'' that is, upon landing in United
States jurisdiction. We proposed to allow importers to file Lacey Act
plant declarations within 3 business days of importation without facing
any enforcement action or penalty for late filing. This change was
intended to accommodate the needs of industry while ensuring that
declarations are submitted in a timely manner for the purposes of the
statute.
Commenters were generally opposed to establishing a 3-day grace
period. One commenter stated that allowing this grace period was
contrary to the statute. Several commenters stated that allowing
importers to file declarations within 3 days constituted establishing a
new deadline where one did not exist before. Some commenters suggested
setting longer time frames for the submissions of the declaration,
either to correspond with customs regulations or to allow for
administrative corrections.
As we explained above, Lacey Act plant declarations are required to
be filed upon landing in United States jurisdiction. Allowing importers
to file declarations within 3 days would have established a grace
period, not a new deadline. However, after considering the comments we
received, we believe it is necessary to reexamine the establishment of
a grace period and therefore are not adopting this aspect of the
proposed rule at this time. We note that there are already mechanisms
in place to allow importers to submit corrections to declarations.
These mechanisms vary depending on which method of submission was used.

Miscellaneous

Some commenters expressed concern that establishing a de minimis
exception to the Lacey Act plant declaration requirement would increase
the risk of plant pests and diseases being introduced into the United
States.
As we explained in the proposed rule, the intent of the Lacey Act
is to prevent trade in illegally taken wildlife or plants. APHIS'
authority to enforce the Lacey Act plant declaration requirement is
distinct from our authority to regulate the movement of plant pests,
noxious weeds, plants, plant products, and articles capable of
harboring plant pests or noxious weeds in interstate commerce or
foreign commerce under the Plant Protection Act (7 U.S.C. 7701 et seq.)
We are making no changes to the plant protection regulations in this
final rule.
One commenter stated that APHIS should maintain the current
exception from the declaration requirement for composite plant material
that acknowledges the need to conduct reasonable due care without
mandating the tracking and reporting of species. Another commenter
noted that there is currently an administrative Special Use Designation
for composite material and stated that establishing de minimis
exceptions for composite products would be more complex and costly than
continuing to use the administrative designation.
APHIS notes that the provisions of the Act do not include permanent
exceptions from the declaration requirement for composite products. On
July 9, 2018, we published in the Federal Register an advance notice of
proposed rulemaking (83 FR 31702-31704, Docket No. APHIS-2018-0017) \5\
seeking public comment on regulatory options that could address certain
issues that have arisen with the implementation of the declaration
requirement for composite plant materials. The concerns and
recommendations of all the commenters will be considered if any new
proposed regulations regarding the Lacey Act plant declaration are
developed for composite materials.
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\5\ To view the advance notice of proposed rulemaking and the
comments we received, go to http://www.regulations.gov/#!docketDetail;D=APHIS-2018-0017.
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One commenter recommended that we specifically include
``hardboard'' among the examples of composite plant materials.
We do not reference such examples in the proposed rule, but in the
advance notice of proposed rulemaking we refer to ``pulp, paper,
paperboard, medium density fiberboard, high density fiberboard, and
particleboard.''
A commenter stated that the final rule should include explicit
provisions providing ample lead time of 1 year or longer for
implementation by the regulated industry based on the complexity of
product supply chains.
In our February 2009 notice, we committed to providing affected
individuals and industry with at least 6 months' notice for any
products that would be added to the phase-in schedule. The phased-in
enforcement schedule began April 1, 2009. The most recent phase (V)
began on August 6, 2015. The enforcement schedule is available on the
APHIS website at http://www.aphis.usda.gov/plant_health/lacey_act/.

[[Page 12211]]

Therefore, for the reasons given in the proposed rule and in this
document, we are adopting the proposed rule as a final rule, with the
changes discussed in this document.

Executive Orders 12866, 13563, 13771, and Regulatory Flexibility Act

This final 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. This final rule is expected to be
an Executive Order 13771 deregulatory action. Assessment of the costs
and cost savings may be found in the accompanying economic analysis.
We have prepared an economic analysis for this rule. The economic
analysis provides a cost-benefit analysis, as required by Executive
Orders 12866 and 13563, which direct agencies to assess all costs and
benefits of available regulatory alternatives and, if regulation is
necessary, to select regulatory approaches that maximize net benefits
(including potential economic, environmental, public health and safety
effects, and equity). Executive Order 13563 emphasizes the importance
of quantifying both costs and benefits, of reducing costs, of
harmonizing rules, and of promoting flexibility. The economic analysis
also provides a final regulatory flexibility analysis that examines the
potential economic effects of this rule on small entities, as required
by the Regulatory Flexibility Act. The economic analysis is summarized
below. Copies of the full analysis are available on the Regulations.gov
website (see footnote 1 in this document for a link to Regulations.gov)
or by contacting the person listed under FOR FURTHER INFORMATION
CONTACT.
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 requirement of the Lacey Act became effective on December
15, 2008, and enforcement of that requirement is being phased in. We
are establishing an exception to the declaration requirement for
products containing a minimal amount of plant material.
This rule will benefit certain U.S. importers, large or small. The
provisions of this rule relieve importers of the burden of submitting
declarations for products containing very small amounts of plant
material and for which obtaining declaration information may be
difficult, while continuing to ensure that the declaration requirement
fulfills the purposes of the Lacey Act.
The Lacey Act amendments included in the 2008 Farm Bill were
effective as of May 22, 2008. As a practical matter, this means that
enforcement actions may be taken for any violations committed on or
after that date. The requirement to provide a declaration under the
amended Act went into effect May 1, 2009. Declarations serve several
purposes including but not limited to data acquisition and
accountability, and they assist regulatory and enforcement authorities
in monitoring implementation of the Lacey Act's prohibitions on
importing illegally harvested plants. Enforcement of the declaration
requirement is being phased in. The phase-in schedule is largely based
on the degree of processing and complexity of composition of the
affected products. The requirement that importers file a declaration
upon importation is currently being enforced for products in parts of
the Harmonized Tariff Schedule of the United States (HTSUS) Chapters
44, 66, 82, 92, 93, 94, 95, 96 and 97. Products in parts of HTSUS
Chapters 33, 42, 44, 92 and 96 are to be included in the next phase of
implementation.
Some importers of products containing a minimal amount of plant
material who have been required to file declarations upon importation
of their products will be excepted from the declaration requirement.
The cost savings from not having to file those declarations is one
measure of the expected benefits of this rule. In 2018, there was an
average of about 400 weekly shipments of commodities requiring
declarations that contained amounts of plant material that possibly
would have been eligible for de minimis status under this rule. Based
on information available on those shipments, we estimate that between
10 and 20 percent of those commodities would have actually met the
definition for de minimis exception. Had those commodity shipments not
needed to be accompanied by declarations, we estimate the annual cost
savings for affected entities would have ranged in total from a low of
about $31,800 to a high of about $229,500, with annual government
processing savings of between about $250 and $500.
In addition, we estimate that in 2018 about 1,300 weekly shipments
of commodities contained amounts of plant material that possibly would
have been eligible for de minimis status under the next phase of
declaration enforcement. The cost savings for affected entities
associated with those products would have ranged from about $103,300 to
$745,900, with annual government processing savings of between about
$800 and $1,600. In accordance with guidance on complying with
Executive Order 13771, the primary estimate of the annual private
sector cost savings, including those expected to be realized under the
next phase of enforcement, is $555,300. This value is the mid-point
estimate of cost savings annualized in perpetuity using a 7 percent
discount rate.
The total cost of compliance directly associated with the
collection, compilation and submission of declarations currently
enforced is estimated to be between $12.5 million and $45 million, and
between $5 million and $18.2 million under the next phase of
enforcement. The total estimated reduction in compliance costs under
both the current and next phase of enforcement ranges from about
$135,100 to about $975,400, representing an overall cost savings of
between 0.8 and 1.5 percent.
Both the declaration costs and the cost savings expected with this
rule are small when compared to the value of the commodities imported.
In 2018, the value of U.S. imports of products currently requiring a
declaration totaled about $23.4 billion, and the value of U.S. imports
of such commodities as umbrellas, walking sticks, and handguns that may
include small amounts of plant material was $3.2 billion. In 2018, the
value of imported commodities that will be included in the next phase
of enforcement and may contain small amounts of plant material was $2.6
billion.
Because enforcement of the declaration requirement is being phased
in, some products that meet the de minimis criteria do not currently
require a declaration; their importation will not be initially
affected. For example, apparel articles such as shirts with wood
buttons may be considered to have minimal plant material, but the
declaration requirement for products in that HTSUS code are not part of
the current enforcement schedule. While the volume of imported
commodities for which the exceptions will be applicable could be large,
the cost savings for affected importers are expected to be small
relative to the value of the commodities. Regardless of the number of
declaration exceptions for which an entity qualifies, those exceptions
will benefit affected entities, large and small.

Executive Order 12372

This program/activity is listed in the Catalog of Federal Domestic
Assistance under No. 10.025 and is subject to Executive Order 12372,
which requires intergovernmental consultation with

[[Page 12212]]

State and local officials. (See 2 CFR chapter IV.)

Executive Order 12988

This final rule has been reviewed under Executive Order 12988,
Civil Justice Reform. This rule: (1) Preempts all State and local laws
and regulations that are inconsistent with this rule; (2) has no
retroactive effect; and (3) does not require administrative proceedings
before parties may file suit in court challenging this rule.

Executive Order 13175

This rule has been reviewed in accordance with the requirements of
Executive Order 13175, ``Consultation and Coordination with Indian
Tribal Governments.'' Executive Order 13175 requires Federal agencies
to consult and coordinate with Tribes on a government-to-government
basis on policies that have Tribal implications, including regulations,
legislative comments or proposed legislation, and other policy
statements or actions that have substantial direct effects on one or
more Indian tribes, on the relationship between the Federal Government
and Indian tribes or on the distribution of power and responsibilities
between the Federal Government and Indian tribes.
APHIS has assessed the impact of this rule on Indian tribes and
determined that this rule does not, to their knowledge, have Tribal
implications that require Tribal consultation under Executive Order
13175. The USDA's Office of Tribal Relations (OTR) has assessed the
impact of this rule on Indian tribes and determined that Tribal
consultation under Executive Order 13175 is not required. If a Tribe
requests consultation, APHIS will work with the OTR to ensure
meaningful consultation is provided where changes, additions, and
modifications identified herein are not expressly mandated by Congress.

Congressional Review Act

Pursuant to the Congressional Review Act (5 U.S.C. 801 et seq.),
the Office of Information and Regulatory Affairs designated this rule
as not a major rule, as defined by 5 U.S.C. 804(2).

Paperwork Reduction Act

In accordance with section 3507(d) of the Paperwork Reduction Act
of 1995 (44 U.S.C. 3501 et seq.), the information collection
requirements included in this final rule have been approved under
Office of Management and Budget control number 0579-0349.

E-Government Act Compliance

The Animal and Plant Health Inspection Service is committed to
compliance with the E-Government Act to promote the use of the internet
and other information technologies, to provide increased opportunities
for citizen access to Government information and services, and for
other purposes. For information pertinent to E-Government Act
compliance related to this rule, please contact Mr. Joseph Moxey,
APHIS' Information Collection Coordinator, at (301) 851-2483.

List of Subjects in 7 CFR Part 357

Endangered and threatened species, Plants (agriculture).

Accordingly, we are amending 7 CFR part 357 as follows:

PART 357--CONTROL OF ILLEGALLY TAKEN PLANTS

0
1. The authority citation for part 357 continues to read as follows:

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

0
2. Section 357.1 is revised to read as follows:

Sec. [thinsp]357.1 Purpose and scope.

The Lacey Act, as amended (16 U.S.C. 3371 et seq.), makes it
unlawful to, among other things, 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 any Federal or Tribal law, or in violation of a
State or foreign law that protects plants or that regulates certain
specified plant-related activities. 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. Common
cultivars (except trees) and common food crops are among the
categorical exclusions to the provisions of the Act. The Act does not
define the terms ``common cultivar'' and ``common food crop'' but
instead authorizes 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.
Additionally, the regulations in this part address the declaration
requirement of the Act.

0
3. Section 357.2 is amended as follows:
0
a. By adding in alphabetical order definitions for ``Import'' and
``Person'';
0
b. By revising the definition of ``Plant''; and
0
c. By adding in alphabetical order a definition for ``Taken''.
The additions and revision read as follows:

Sec. [thinsp]357.2 Definitions.

* * * * *
Import. 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.
Person. Any individual, partnership, association, corporation,
trust, or any officer, employee, agent, department, or instrumentality
of the Federal Government or of any State or political subdivision
thereof, or any other entity subject to the jurisdiction of the United
States.
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. The term plant excludes:
(1) Common cultivars, except trees, and common food crops
(including roots, seeds, parts, or products thereof);
(2) A scientific specimen of plant genetic material (including
roots, seeds, germplasm, parts, or products thereof) that is to be used
only for laboratory or field research; and
(3) Any plant that is to remain planted or to be planted or
replanted.
(4) A plant is not eligible for these exclusions if it is listed:
(i) In an appendix to the Convention on International Trade in
Endangered Species of Wild Fauna and Flora (27 UST 1087; TIAS 8249);
(ii) As an endangered or threatened species under the Endangered
Species Act of 1973 (16 U.S.C. 1531 et seq.); or
(iii) Pursuant to any State law that provides for the conservation
of species that are indigenous to the State and are threatened with
extinction.
Taken. Captured, killed, or collected, and with respect to a plant,
also harvested, cut, logged, or removed.
* * * * *

0
4. Sections 357.3 and 357.4 are added to read as follows:

Sec. [thinsp]357.3 Declaration requirement.

(a) Any person importing any plant shall file upon importation a
declaration that contains:
(1) The scientific name of any plant (including the genus and
species of the plant) contained in the importation;
(2) A description of the value of the importation and the quantity,
including the unit of measure, of the plant; and
(3) The name of the country from which the plant was taken.
(b) The declaration relating to a plant product shall also contain:
(1) If the species of plant used to produce the plant product that
is the

[[Page 12213]]

subject of the importation varies, and the species used to produce the
plant product is unknown, the name of each species of plant that may
have been used to produce the plant product;
(2) If the species of plant used to produce the plant product that
is the subject of the importation is commonly taken from more than one
country, and the country from which the plant was taken and used to
produce the plant product is unknown, the name of each country from
which the plant may have been taken; and
(3) If a paper or paperboard plant product includes recycled plant
product, the average percent recycled content without regard for the
species or country of origin of the recycled plant product, in addition
to the information for the non-recycled plant content otherwise
required by this section.
(c) Guidance on completion and submission of the declaration form
can be found on the APHIS website at http://www.aphis.usda.gov/plant_health/lacey_act.

(Approved by the Office of Management and Budget under control number
0579-0349)

Sec. [thinsp]357.4 Exceptions from the declaration requirement.

Plants and products containing plant materials are excepted from
the declaration requirement if:
(a) The plant is used exclusively as packaging material to support,
protect, or carry another item, unless the packaging material itself is
the item being imported; or
(b) The plant material in a product represents no more than 5
percent of the total weight of the individual product unit, provided
that the total weight of the plant material in an entry of products in
the same 10-digit provision of the Harmonized Tariff Schedule of the
United States does not exceed 2.9 kilograms.
(c) A product will not be eligible for an exception under paragraph
(b) of this section if it contains plant material 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.

Done in Washington, DC, this 24th day of February 2020.
Greg Ibach,
Under Secretary for Marketing and Regulatory Programs.
[FR Doc. 2020-04165 Filed 2-28-20; 8:45 am]
BILLING CODE 3410-34-P