81 FR 3939 - Lacey Act Implementation Plan; Definitions for Exempt and Regulated Articles

DEPARTMENT OF AGRICULTURE
Animal and Plant Health Inspection Service

Federal Register Volume 81, Issue 15 (January 25, 2016)

We are adopting as a final rule, without change, an interim final rule that established definitions for the terms common cultivar and common food crop and several related terms. The 2008 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 required 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 exclusions 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 interim final rule specifically requested comment on definitions of two related terms: Commercial scale and tree. This document responds to comments we received on those definitions.

[Federal Register Volume 81, Number 15 (Monday, January 25, 2016)]
[Rules and Regulations]
[Pages 3939-3941]
From the Federal Register Online  [www.thefederalregister.org]
[FR Doc No: 2016-01399]



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Federal Register / Vol. 81, No. 15 / Monday, January 25, 2016 / Rules 
and Regulations

[[Page 3939]]



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: Affirmation of interim final rule.

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SUMMARY: We are adopting as a final rule, without change, an interim 
final rule that established definitions for the terms common cultivar 
and common food crop and several related terms. The 2008 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 required 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 exclusions 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 interim final rule specifically requested comment on definitions of 
two related terms: Commercial scale and tree. This document responds to 
comments we received on those definitions.

DATES: Effective on January 25, 2016, we are adopting as a final rule 
the interim final rule published at 78 FR 40940-40945 on July 9, 2013.

FOR FURTHER INFORMATION CONTACT: Ms. Parul Patel, Senior 
Agriculturalist, Imports, Regulations, and Manuals, PPQ, APHIS, 4700 
River Road Unit 60, Riverdale, MD 20737-1231; 301-851-2351.

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, 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, State, tribal, or 
foreign law that protects plants or that regulates the theft of plants; 
the taking of plants from a park, forest reserve, or other officially 
protected area; the taking of plants from an officially designated 
area; or the taking of plants without, or contrary to, required 
authorization.
    The statute excludes from the definition of the term ``plant'' the 
following categories: (i) Common cultivars, except trees, and common 
food crops; (ii) scientific specimens for laboratory or field research 
(unless they 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); 
and (iii) plants that are to remain planted or to be planted or 
replanted (unless they are 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). 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 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 \1\ (74 FR 5911-5913 and 74 FR 45415-
45418, Docket No. APHIS-2008-0119).
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    \1\ To view these notices and the comments we received, go to 
http://www.regulations.gov/#!docketDetail;D=APHIS-2008-0119.
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    On August 4, 2010, we published in the Federal Register (75 FR 
46859-46861, Docket No. APHIS-2009-0018) a proposal \2\ to establish a 
new part in the plant-related provisions of title 7, chapter III of the 
Code of Federal Regulations (CFR), containing definitions for the terms 
common cultivar and common food crop. Common cultivars 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 gives authority to the U.S. Department of Agriculture 
and the U.S. Department of the Interior (DOI) to define these terms by 
regulation.
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    \2\ To view the proposed rule and the comments we received, go 
to http://www.regulations.gov/#!docketDetail;D=APHIS-2009-0018.
---------------------------------------------------------------------------

    Comments on the proposed rule were required to be received on or 
before November 29, 2010. The comments we received on the proposed rule 
included concerns about two additional terms used in the regulations. 
Specifically, some commenters asked that we define the term commercial 
scale to clarify that the definitions apply to specialty products grown 
commercially on a smaller scale. One commenter also asked that we 
define the word tree as it is used in the regulations. The commenter 
noted that there is no globally accepted botanical definition for tree 
and stated that adding a definition to the regulations would help 
clarify which products require a declaration.

[[Page 3940]]

    We agreed with the commenters that adding definitions of these 
terms would improve clarity. Therefore, in an interim final rule \3\ 
published in the Federal Register on July 9, 2013 (78 FR 40940-40945, 
Docket No. APHIS-2009-0018), we proposed to define commercial scale as 
``production, in individual products or markets, that is typical of 
commercial activity, regardless of the production methods or amount of 
production of a particular facility, or the purpose of an individual 
shipment'' and tree as ``a woody perennial plant that has a well-
defined stem or stems and a continuous cambium, and that exhibits true 
secondary growth.''
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    \3\ To view the interim final rule and the comments we received, 
go to http://www.regulations.gov/#!docketDetail;D=APHIS-2009-0018.
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    We invited public comment on these two definitions. Comments on the 
interim final rule were required to be received on or before August 8, 
2013. We received two comments by that date. The comments were from an 
organization of State plant pest regulatory agencies and a retailer 
selling home furnishings.
    One commenter supported the additional definitions as proposed. The 
other commenter stated that the definitions of common cultivar, common 
food crop, and tree do not provide enough clarity for importers to 
determine whether certain products are subject to provisions of the 
Act, but did not address the specific wording of the definitions. The 
commenter also asked whether certain products, including rattan, palm 
leaves, and willow and osier branches, were considered common cultivars 
and if they would be included on the list of common cultivars.
    Willows and osiers are trees and therefore cannot be excepted from 
the declaration requirement. We note that several species of palms, 
including African oil palm (Elaeis guineensis), carnauba palm 
(Copernicia spp.), and palms in the genera Astrocaryum, Bactris, and 
Euterpe are included on the list of common cultivars and common food 
crops that are excepted from the declaration requirement. Rattan and 
other palms are not currently excepted from the declaration requirement 
but may be evaluated as common food crops or common cultivars if a 
member of the public submits a request as described below.
    As we explained in the interim final rule, the list of common 
cultivars and common food crops is intended to be illustrative, not 
exhaustive. The list is available on the Animal and Plant Health 
Inspection Service (APHIS) Web site at http://www.aphis.usda.gov/plant_health/lacey_act/index.shtml. The public may also send inquiries 
about specific taxa or commodities and requests to add taxa or 
commodities to the list, or remove them from the list, by writing to 
The Lacey Act, ATT: Common Cultivar/Common Food Crop, c/o U.S. 
Department of Agriculture, Box 10, 4700 River Road, Riverdale, MD 20737 
or by email to [email protected] and including the 
following information:
     Scientific name of the plant (genus, species);
     Common or trade names;
     Annual trade volume (e.g., cubic meters) or weight (e.g., 
metric tons/kilograms) of the commodity; and
     Any other information that will help us make a 
determination, such as countries or regions where grown, estimated 
number of acres or hectares in commercial production, and so on.
    Decisions about which products will be included on the list will be 
made jointly by APHIS and the DOI's Fish and Wildlife Service. 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' Lacey 
Act Web site mentioned above.
    Therefore, for the reasons given in the interim final rule and in 
this document, we are adopting the interim final rule as a final rule 
without change.
    This action also affirms the information contained in the interim 
final rule concerning Executive Orders 12866 and 13563 and the 
Regulatory Flexibility Act, Executive Orders 12988 and 13175.

Paperwork Reduction Act

    Section 3 of the Lacey Act makes it unlawful to import certain 
plants and plant products without an import declaration, which must 
contain, among other things, the scientific name of the plant, value of 
the importation, quantity of the plant, and name of the country in 
which the plant was harvested. In addition, there is a supplemental 
form that must be completed if additional space is needed to declare 
additional plants and plant products. Also, records of the import 
declaration and supplemental form must be retained for at least 5 
years. These collection activities have been approved by the Office of 
Management and Budget (OMB) under OMB control number 0579-0349. We 
published a notice in the Federal Register on August 21, 2014 (79 FR 
49491-49492, Docket No. APHIS-2014-0073) seeking an extension of the 
approval for this information collection.
    Common cultivars and common food crops are among the categorical 
exclusions to the provisions of the Act. In the July 2013 interim final 
rule, we advised the public that inquiries about specific taxa or 
commodities and requests to add taxa or commodities to the list, or 
remove them from the list, be sent in writing to APHIS, including 
information as to the scientific name of the plant (genus, species), 
common or trade names, annual trade volume (e.g., cubic meters) or 
weight (e.g., metric tons/kilograms) of the commodity, and any other 
information that will help us make a determination, such as countries 
or regions where grown, estimated number of acres or hectares in 
commercial production, and so on.
    We inadvertently did not obtain OMB approval for this information 
collection activity. Therefore, in accordance with section 3507(d) of 
the Paperwork Reduction Act of 1995 (44 U.S.C. 3501 et seq.), we 
published a notice in the Federal Register on October 15, 2014 (79 FR 
61846-61847, Docket No. APHIS-2014-0082), announcing our intention to 
initiate this information collection and to solicit comments. We have 
asked OMB to approve our use of this information collection for 3 
years. When OMB notifies us of its decision, we will publish a document 
in the Federal Register providing notice of the assigned OMB control 
number, and we will combine this collection with OMB control number 
0579-0349 once it is approved by OMB.

E-Government Act Compliance

    The Animal and Plant Health Inspection Service is committed to 
compliance with the EGovernment 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 Ms. Kimberly Hardy, 
APHIS' Information Collection Coordinator, at (301) 851-2727.

List of Subjects in 7 CFR Part 357

    Endangered and threatened species, Plants (Agriculture).

PART 357--CONTROL OF ILLEGALLY TAKEN PLANTS

0
Accordingly, we are adopting as a final rule, without change, the 
interim final rule that amended 7 CFR part 357 and that was published 
at 78 FR 40940-40945 on July 9, 2013.


[[Page 3941]]


    Done in Washington, DC, this 15th day of January 2016.
Gary Woodward,
Deputy Under Secretary for Marketing and Regulatory Programs.
[FR Doc. 2016-01399 Filed 1-22-16; 8:45 am]
 BILLING CODE 3410-34-P