83 FR 31697 - Lacey Act Implementation Plan: De Minimis Exception
DEPARTMENT OF AGRICULTURE
Animal and Plant Health Inspection Service Federal Register Volume 83, Issue 131 (July 9, 2018)
Animal and Plant Health Inspection Service
Federal Register Volume 83, Issue 131 (July 9, 2018)
| Page Range | 31697-31702 | |
| FR Document | 2018-14630 |
[Federal Register Volume 83, Number 131 (Monday, July 9, 2018)] [Proposed Rules] [Pages 31697-31702] From the Federal Register Online [www.thefederalregister.org] [FR Doc No: 2018-14630] ======================================================================= ----------------------------------------------------------------------- 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: Proposed rule. ----------------------------------------------------------------------- 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 proposing 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. We are also proposing that all Lacey Act declarations be submitted within 3 business days of importation. DATES: We will consider all comments that we receive on or before September 7, 2018. ADDRESSES: You may submit comments by either of the following methods:Federal eRulemaking Portal: Go to http://www.regulations.gov/#!docketDetail;D=APHIS-2013-0055. Postal Mail/Commercial Delivery: Send your comment to Docket No. APHIS-2013-0055, 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-2013- 0055 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) 799-7039 before coming. FOR FURTHER INFORMATION CONTACT: Ms. Parul Patel, Senior Agriculturalist, Permitting and Compliance Coordination, PPQ, APHIS, 4700 River Road Unit 60, Riverdale, MD 20737-1231; (301) 851-2351. 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 for combatting the illegal trade in timber and timber products by ensuring importers provide required information. Through the declaration requirement, the importer maintains accountability for exercising reasonable care regarding the content of the shipment before it arrives in the United States. 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 [[Page 31698]] requirement is intended to apply to imported products that contain minimal plant material. This proposed rule would establish limited exceptions to the declaration requirement for entries of products containing minimal plant material. This action would relieve 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 Section[s] 3372(f) of this title.'' Summary of Major Provisions of the Regulatory Action This proposed rule would establish certain exceptions from the requirement that a declaration be filed when importing certain plants and plant products. Specifically, it would establish an exception to the declaration requirement for products with minimal amounts of plant material. The proposed rule would also establish 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 would provide additional context for the proposed exceptions. Costs and Benefits To the extent that the proposed rule would provide exceptions from the provisions of the Act, it would benefit U.S. importers. Establishing a de minimis exception from the declaration requirement for products with minimal amounts of plant material would relieve importers of the burden of identifying 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, made 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. Through the declaration requirement, the importer maintains accountability for exercising reasonable care regarding the content of the shipment before it arrives in the United States. 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. On June 30, 2011, we published an advance notice of proposed rulemaking (ANPR) in the Federal Register (76 FR 38330, Docket No. APHIS-2010-0129),\1\ soliciting public comment on several regulatory options to address certain issues that have arisen with the implementation of the declaration requirement. These options included establishing certain exceptions to the declaration requirement for products with minimal amounts of plant material and for products containing composite plant materials. We solicited comments on these options for 60 days ending on August 29, 2011, and received 37 comments by that date. The comments received were from academics, environmental groups, importers and exporters, industry associations, a trade union, representatives of foreign governments, and private citizens. We discuss the comments received on the approaches for composite plant materials in a new ANPR published today in the Federal Register, in which we invite comment on additional questions regarding implementation of the declaration requirement for these products. --------------------------------------------------------------------------- \1\ To view the advance notice of proposed rulemaking and the comments we received, go to http://www.regulations.gov/#!docketDetail;D=APHIS-2010-0129. --------------------------------------------------------------------------- Most of the commenters on the 2011 ANPR supported establishing exceptions to the declaration requirement for products with minimal amounts of plant material and suggested a range of possible levels at which the threshold for exceptions could be set. We took those comments into consideration when developing this proposed rule. We are proposing to establish an exception to the declaration requirement for products containing a minimal amount of plant materials. We are also proposing that all Lacey Act declarations be submitted within 3 business days of importation. Purpose and Scope As a result of the changes proposed in this document, it is necessary to amend the statement of purpose and scope in 7 CFR 357.1. At the time this section was established, part 357 contained only definitions. However, because this proposed rule would add more sections to the regulations, containing provisions that address the declaration requirement of the Act, we would amend the statement to remove the third sentence, which references the declaration requirement, and add a new final sentence that acknowledges that the regulations in part 357 address the declaration requirement of the Act. Definitions We are proposing 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. We would define import as meaning 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. We would define person as 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. These definitions are the same as those in the Act and will [[Page 31699]] help ensure that the declaration requirement continues to fulfill the purposes of the Lacey Act without unduly burdening commerce. For the same reason we are proposing to amend the definition of plant to include the exception provision of the statute. The definition currently in the regulations, while consistent with the definition in the Act, does not include the exclusions for common cultivars and common food crops, scientific specimens, and plants for planting that are included in the definition in the Act. The definition currently in the regulations also does not include the exceptions to the application of exclusions for plants 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), or 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 proposing to amend the definition in the regulations to add the exclusions for common cultivars, common food crops, scientific specimens used only for laboratory or field research, and any plant that is to remain planted or to be planted or replanted, and also to add the exceptions to the application of those exclusions so that the proposed definition conforms with the statutory definition. Declaration Requirement We are proposing 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 would provide additional context for the proposed exceptions. Exception From Declaration Requirement for Entries Containing Minimal Plant Materials The requirement that importers of plants and plant products file a declaration upon importation is set forth in 16 U.S.C. 3372(f). The Lacey Act does not explicitly address whether the declaration requirement is intended to apply to products containing minimal amounts of plant materials, but it is questionable whether the regulatory objectives of the Lacey Act are furthered by applying this requirement to minimal amounts of non-listed (i.e., not of conservation concern) plant materials contained in an otherwise non-plant product. We believe that this issue would be efficiently addressed by establishing a level at which the declaration requirement does not apply. We seek public comment on two options with respect to a de minimis exception to the declaration requirement. Under the first option, we propose 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 propose 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 invite 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 cannot be determined, then we propose 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 cannot be determined, we propose 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. Under this second option, we invite comment on what would be an appropriate maximum amount allowable by value or board feet under the de minimis exception. In either case, the exception would not apply to products containing plant material from species of conservation concern that 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. All other requirements of the Lacey Act would still apply to entries or persons claiming this exception. We invite comment on the method of determining de minimis content. Specifically, we would appreciate information on whether it is feasible to set the threshold for the maximum amount of plant material at the entry line level, and invite comment on the thresholds that are proposed, including 2.9 kilograms in total weight or volume of less than 1 board foot per entry line level of the plant product. We also seek comment on whether the de minimis threshold should be calculated on a per product unit basis, at least for certain products, and if so what would be an appropriate amount of plant material on a per product basis, by weight or by board foot. We also invite comment on whether the 5 percent threshold should be higher or lower, and why. For example, a number of commenters on the ANPR suggested setting the threshold at 10 percent. Additional data from commenters in support of either the 5 percent threshold or an alternative threshold would be useful for the rulemaking process. We also solicit comment on whether the 5 percent threshold or any alternative threshold proposed by commenters is appropriate as a de minimis exception and consistent with the statute. Time Limit for Submission of Declarations While the majority of importers submit their Lacey Act declarations at the time of formal customs entry, there has been some confusion about the time frame in which declarations should be submitted, with some importers submitting declarations up to a year after importation. While the declarations are required pursuant to the language of the statute ``upon importation,'' that is, upon landing in United States jurisdiction, we are proposing to allow importers to file Lacey Act declarations within 3 business days of importation without facing any enforcement action or penalty for late filing. This would [[Page 31700]] accommodate the needs of industry while ensuring that declarations are submitted in a timely manner for the purposes of the statute. Executive Orders 12866 and 13771 and Regulatory Flexibility Act This proposed rule has been determined to be significant for the purposes of Executive Order 12866 and, therefore, has been reviewed by the Office of Management and Budget. This proposed rule, if finalized as proposed, 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 an initial 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 by contacting the person listed under FOR FURTHER INFORMATION CONTACT or on the Regulations.gov website (see ADDRESSES above for instructions for accessing Regulations.gov). 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 proposing to establish an exception to the declaration requirement for products containing a minimal amount of plant materials. We are also proposing that all Lacey Act declarations be submitted within 3 business days upon importation. The proposed rule would benefit some U.S. importers, large or small. The provisions of this proposed rule would relieve importers of the burden of identifying very small amounts of plant material incorporated into a product 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 for products in parts of the Harmonized Tariff Schedule of the United States (HTS) Chapters 44, 66, 82, 92, 93, 94, 95, 96 and 97, is currently being enforced. We are currently considering products for inclusion in the next phase of implementation. If this proposed rule is finalized, some importers of products containing a minimal amount of plant material who are currently required to file declarations upon importation of their products would be excepted from that requirement. The cost savings from not having to file those declarations is one measure of the expected benefits of this proposed rule. From July 2015 through mid-June 2017, there were about 715 weekly shipments of commodities currently requiring declarations and containing amounts of plant material that potentially would have been eligible for de minimis status under the proposed rule. Based on information available on those shipments, we estimate that between 10 and 20 percent of those commodities would have met the proposed definitions for de minimis exception. Had those commodity shipments not needed to be accompanied by declarations, we estimate the annual cost savings for affected producers would have ranged in total from a low of about $56,700 to a high of about $407,900 annually, with annual government processing savings of between about $1,000 and $1,900. In accordance with guidance on complying with Executive Order 13771, the primary estimate of the annual private sector cost savings for this rule is $232,300. This value is the mid-point estimate of cost savings annualized in perpetuity using a 7 percent discount rate. The total cost of compliance with the declaration requirement of the Act as currently enforced is estimated to be between $11.6 million and $50.3 million. The estimated reduction in compliance costs of about $56,700 to $407,900 would represent a cost savings of between 0.1 and 3.5 percent. Both the declaration costs and the cost savings expected with this proposed rule are small when compared to the value of the commodities imported. In 2016, the value of U.S. imports of products currently requiring a declaration totaled about $20.4 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 $2.7 billion. The full schedule for enforcement of the declaration requirement has not yet been determined. Because enforcement of the declaration requirement in the Act is being phased in, some products that would meet the de minimis criteria do not currently require a declaration; their importation would 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 HTS code are not part of the current enforcement schedule. While the volume of imported commodities for which the exceptions would be applicable could be large, the cost savings for affected importers are expected to be small relative to the value of the commodities. We are also proposing to require that Lacey Act declarations be submitted within 3 business days of importation. This change should have little impact on importers. Over 90 percent of current declarations are already submitted at the time of arrival and there is no reason to believe that the burden associated with submitting a declaration within 3 business days would be significantly greater than the burden associated with submitting a declaration more than 3 business days of importation. An importer reasonably knows the contents of a shipment before it arrives in the United States, and the information necessary for submitting a declaration should be available easily within 3 business days upon importation. This action would result in some cost savings for importing businesses, most of which are small entities. Based on our review of available information, APHIS does not expect the proposed rule to have a significant economic impact on small entities. We have [[Page 31701]] prepared an initial regulatory flexibility analysis because the information used in this analysis may not address all possible economic effects of this proposed rule on small entities. The savings are likely to represent a very small share of the overall value of the imported goods, and are not expected to significantly affect most importers of goods covered by the Lacey Act, whether large or small. Average annual receipts of small, potentially affected entities under the proposed thresholds range from $843,000 to $1.4 million. We estimate that the average cost savings for an affected entity from not needing to file a single declaration may range between about $15 and $55. For the cost savings to equal 5 percent of average annual receipts and thereby reasonably be considered a significant effect would require that an affected entity have from about 770 to nearly 4,600 exempted declarations in a year, a range that is highly unlikely. APHIS has considered alternative thresholds for determining the criteria for a de minimis exception from the declaration requirement, including the specific percentage of total weight of an individual product unit that is plant material in an entry, the maximum total weight of that plant material, and the maximum total volume of that plant material. We are inviting comment on the specific threshold levels in this proposal, alternative thresholds, and their impact. To the extent that alternative thresholds result in broader or narrower de minimis criteria, the cost savings associated with such de minimis designation would be expanded or constrained. However, regardless the number of exemptions for which an entity qualifies, they would be beneficial and small entities would not be disadvantaged. Executive Order 12988 This proposed rule has been reviewed under Executive Order 12988, Civil Justice Reform. If this proposed rule is adopted: (1) All State and local laws and regulations that are inconsistent with this rule will be preempted; (2) no retroactive effect will be given to this rule; and (3) administrative proceedings will not be required before parties may file suit in court challenging this rule. Executive Order 13175 This rule has been reviewed in accordance with the requirements of Executive Order (E.O.) 13175, ``Consultation and Coordination with Indian Tribal Governments.'' E.O. 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 our knowledge, have Tribal implications that require Tribal consultation under E.O. 13175. If a Tribe requests consultation, APHIS will work with the Office of Tribal Relations to ensure meaningful consultation is provided where changes, additions, and modifications identified herein are not expressly mandated by Congress. Paperwork Reduction Act In accordance with section 3507(d) of the Paperwork Reduction Act of 1995 (44 U.S.C. 3501 et seq.), the reporting requirements included in this proposed 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 proposed rule, please contact Ms. Kimberly Hardy, APHIS' Information Collection Coordinator, at (301) 851-2483. List of Subjects in 7 CFR Part 357 Endangered and threatened species, Plants (Agriculture). Accordingly, we propose to amend 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. 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 definitions for Import and Person in alphabetical order; and 0 b. By revising the definition for Plant. The additions and revision read as follows: Sec. 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: [[Page 31702]] (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. * * * * * 0 4. Section 357.3 is added to read as follows: Sec. 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 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. (Approved by the Office of Management and Budget under control number 0579-0349) 0 5. Section 357.4 is added to read as follows: Sec. 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 such products][a product unit] does not exceed [2.9 kilograms] [or other amount]; or, if the weight cannot be determined, the value of the plant material in the individual product unit represents no more than 10 percent of the declared value of the product, provided that the total quantity of plant material in [an entry of such products][a product unit] has a volume of less than [1 board foot (that is, 12 x 12 x 1 inches or 30.48 x 30.48 x 2.54 centimeters)] [or other amount]. (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. 0 6. Section 357.5 is added to read as follows: Sec. 357.5 Time limit for submission of plant declarations. In the case of commodities for which a plant declaration is required, the declaration must be submitted within 3 business days of importation. Done in Washington, DC, this 3rd day of July 2018. Greg Ibach, Under Secretary for Marketing and Regulatory Programs. [FR Doc. 2018-14630 Filed 7-6-18; 8:45 am] BILLING CODE 3410-34-P
![Federal Register / Vol. 83, No. 131 / Monday, July 9, 2018 / Proposed Rules 31697
(26) Indianapolis-Carmel-Muncie, (43) San Antonio-New Braunfels- action would relieve the burden on
IN—consisting of the Indianapolis- Pearsall, TX—consisting of the San importers while continuing to ensure
Carmel-Muncie, IN CSA and also Antonio-New Braunfels-Pearsall, TX that the declaration requirement fulfills
including Grant County, IN; CSA; the purposes of the Lacey Act. We are
(27) Kansas City-Overland Park- (44) San Diego-Carlsbad, CA— also proposing that all Lacey Act
Kansas City, MO-KS—consisting of the consisting of the San Diego-Carlsbad, declarations be submitted within 3
Kansas City-Overland Park-Kansas City, CA MSA; business days of importation.
MO-KS CSA and also including Jackson (45) San Jose-San Francisco-Oakland, DATES: We will consider all comments
County, KS, Jefferson County, KS, Osage CA—consisting of the San Jose-San that we receive on or before September
County, KS, Shawnee County, KS, and Francisco-Oakland, CA CSA and also 7, 2018.
Wabaunsee County, KS; including Monterey County, CA; ADDRESSES: You may submit comments
(28) Laredo, TX—consisting of the (46) Seattle-Tacoma, WA—consisting by either of the following methods:
Laredo, TX MSA; of the Seattle-Tacoma, WA CSA and • Federal eRulemaking Portal: Go to
(29) Las Vegas-Henderson, NV-AZ— also including Whatcom County, WA; http://www.regulations.gov/#!docket
consisting of the Las Vegas-Henderson, (47) St. Louis-St. Charles-Farmington, Detail;D=APHIS-2013-0055.
NV-AZ CSA; MO-IL—consisting of the St. Louis-St. • Postal Mail/Commercial Delivery:
(30) Los Angeles-Long Beach, CA— Charles-Farmington, MO-IL CSA; Send your comment to Docket No.
consisting of the Los Angeles-Long (48) Tucson-Nogales, AZ—consisting APHIS–2013–0055, Regulatory Analysis
Beach, CA CSA and also including Kern of the Tucson-Nogales, AZ CSA and also and Development, PPD, APHIS, Station
County, CA, San Luis Obispo County, including Cochise County, AZ; 3A–03.8, 4700 River Road, Unit 118,
CA, and Santa Barbara County, CA; (49) Virginia Beach-Norfolk, VA-NC— Riverdale, MD 20737–1238.
(31) Miami-Fort Lauderdale-Port St. consisting of the Virginia Beach- Supporting documents and any
Lucie, FL—consisting of the Miami-Fort Norfolk, VA-NC CSA; comments we receive on this docket
Lauderdale-Port St. Lucie, FL CSA and (50) Washington-Baltimore-Arlington, may be viewed at http://
also including Monroe County, FL; DC-MD-VA-WV-PA—consisting of the
(32) Milwaukee-Racine-Waukesha, www.regulations.gov/#!docketDetail;D=
Washington-Baltimore-Arlington, DC- APHIS-2013-0055 or in our reading
WI—consisting of the Milwaukee- MD-VA-WV-PA CSA and also including
Racine-Waukesha, WI CSA; room, which is located in room 1141 of
Kent County, MD, Adams County, PA, the USDA South Building, 14th Street
(33) Minneapolis-St. Paul, MN-WI— York County, PA, King George County,
consisting of the Minneapolis-St. Paul, and Independence Avenue SW,
VA, and Morgan County, WV; and Washington, DC. Normal reading room
MN-WI CSA; (51) Rest of U.S.—consisting of those
(34) New York-Newark, NY-NJ-CT- hours are 8 a.m. to 4:30 p.m., Monday
portions of the United States and its through Friday, except holidays. To be
PA—consisting of the New York- territories and possessions as listed in 5
Newark, NY-NJ-CT-PA CSA and also sure someone is there to help you,
CFR 591.205 not located within another please call (202) 799–7039 before
including all of Joint Base McGuire-Dix- locality pay area.
Lakehurst; coming.
[FR Doc. 2018–14542 Filed 7–6–18; 8:45 am]
(35) Palm Bay-Melbourne-Titusville, FOR FURTHER INFORMATION CONTACT: Ms.
BILLING CODE 6325–39–P
FL—consisting of the Palm Bay- Parul Patel, Senior Agriculturalist,
Melbourne-Titusville, FL MSA; Permitting and Compliance
(36) Philadelphia-Reading-Camden, Coordination, PPQ, APHIS, 4700 River
PA-NJ-DE-MD—consisting of the DEPARTMENT OF AGRICULTURE Road Unit 60, Riverdale, MD 20737–
Philadelphia-Reading-Camden, PA-NJ- 1231; (301) 851–2351.
Animal and Plant Health Inspection
DE-MD CSA, except for Joint Base SUPPLEMENTARY INFORMATION:
Service
McGuire-Dix-Lakehurst;
(37) Phoenix-Mesa-Scottsdale, AZ— I. Executive Summary
consisting of the Phoenix-Mesa- 7 CFR Part 357
Need for the Regulatory Action
Scottsdale, AZ MSA; [Docket No. APHIS–2013–0055]
(38) Pittsburgh-New Castle-Weirton, Section 3 of the Lacey Act makes it
RIN 0579–AD44 unlawful to import certain plants,
PA-OH-WV—consisting of the
Pittsburgh-New Castle-Weirton, PA-OH- including plant products, without an
Lacey Act Implementation Plan: De
WV CSA; import declaration. The import
Minimis Exception
(39) Portland-Vancouver-Salem, OR- declaration serves as a tool for
WA—consisting of the Portland- AGENCY: Animal and Plant Health combatting the illegal trade in timber
Vancouver-Salem, OR-WA CSA; Inspection Service, USDA. and timber products by ensuring
(40) Raleigh-Durham-Chapel Hill, ACTION: Proposed rule. importers provide required information.
NC—consisting of the Raleigh-Durham- Through the declaration requirement,
Chapel Hill, NC CSA and also including SUMMARY: The Food, Conservation, and the importer maintains accountability
Cumberland County, NC, Hoke County, Energy Act of 2008 amended the Lacey for exercising reasonable care regarding
NC, Robeson County, NC, Scotland Act to provide, among other things, that the content of the shipment before it
County, NC, and Wayne County, NC; importers submit a declaration at the arrives in the United States. Information
(41) Richmond, VA—consisting of the time of importation for certain plants from the declaration is also used to
sradovich on DSK3GMQ082PROD with PROPOSALS
Richmond, VA MSA and also including and plant products. The declaration monitor implementation of Lacey Act
Cumberland County, VA, King and requirement of the Lacey Act became requirements. The declaration must
Queen County, VA, and Louisa County, effective on December 15, 2008, and contain the scientific name of the plant,
VA; enforcement of that requirement is being value of the importation, quantity of the
(42) Sacramento-Roseville, CA-NV— phased in. We are proposing to establish plant, and name of the country from
consisting of the Sacramento-Roseville, an exception to the declaration which the plant was harvested.
CA CSA and also including Carson City, requirement for products containing a However, the Act does not explicitly
NV, and Douglas County, NV; minimal amount of plant materials. This address whether the declaration
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![31698 Federal Register / Vol. 83, No. 131 / Monday, July 9, 2018 / Proposed Rules
requirement is intended to apply to United States’ oldest wildlife protection environmental groups, importers and
imported products that contain minimal statute. The Act combats trafficking in exporters, industry associations, a trade
plant material. This proposed rule illegally taken wildlife, fish, or plants. union, representatives of foreign
would establish limited exceptions to The Food, Conservation and Energy Act governments, and private citizens. We
the declaration requirement for entries of 2008, effective May 22, 2008, discuss the comments received on the
of products containing minimal plant amended the Lacey Act by expanding its approaches for composite plant
material. This action would relieve the protection to a broader range of plants materials in a new ANPR published
burden on importers while ensuring that and plant products (Section 8204, today in the Federal Register, in which
the declaration requirement continues Prevention of Illegal Logging Practices). we invite comment on additional
to fulfill the purposes of the Lacey Act. The Lacey Act now makes it unlawful questions regarding implementation of
to, among other things, ‘‘import, export, the declaration requirement for these
Legal Authority for the Regulatory products.
transport, sell, receive, acquire, or
Action Most of the commenters on the 2011
purchase in interstate or foreign
The Food, Conservation, and Energy commerce any plant,’’ with some ANPR supported establishing
Act of 2008 amended the Lacey Act by limited exceptions, ‘‘taken, possessed, exceptions to the declaration
expanding its protections to a broader transported, or sold in violation of any requirement for products with minimal
range of plants and plant products than law, treaty, or regulation of the United amounts of plant material and suggested
was previously provided by the Act. States or in violation of any Indian tribal a range of possible levels at which the
The requirement that importers of law,’’ or in violation of any State or threshold for exceptions could be set.
plants and plant products file a foreign law that protects plants or that We took those comments into
declaration upon importation is set forth regulates certain specified plant-related consideration when developing this
in 16 U.S.C. 3372(f). In 16 U.S.C. activities. The Lacey Act also now proposed rule. We are proposing to
3376(a)(1), the statute further provides makes it unlawful to make or submit establish an exception to the declaration
rulemaking authority to the Secretary of any false record, account, or label for, or requirement for products containing a
Agriculture with respect to the any false identification of, any plant. minimal amount of plant materials. We
declaration requirement: ‘‘the Secretary, In addition, Section 3 of the Lacey are also proposing that all Lacey Act
after consultation with the Secretary of Act, as amended, made it unlawful, declarations be submitted within 3
the Treasury, is authorized to issue such beginning December 15, 2008, to import business days of importation.
regulations . . . as may be necessary to certain plants, including plant products, Purpose and Scope
carry out the provisions of Section[s] without an import declaration. The
3372(f) of this title.’’ As a result of the changes proposed in
import declaration serves as a tool for
this document, it is necessary to amend
Summary of Major Provisions of the combatting the illegal trade in timber
the statement of purpose and scope in
Regulatory Action and timber products by ensuring
7 CFR 357.1. At the time this section
importers provide required information.
This proposed rule would establish was established, part 357 contained
Through the declaration requirement,
certain exceptions from the requirement only definitions. However, because this
the importer maintains accountability
that a declaration be filed when proposed rule would add more sections
for exercising reasonable care regarding
importing certain plants and plant to the regulations, containing provisions
the content of the shipment before it
products. Specifically, it would that address the declaration requirement
arrives in the United States. Information
establish an exception to the declaration of the Act, we would amend the
from the declaration is also used to
requirement for products with minimal statement to remove the third sentence,
monitor implementation of Lacey Act
amounts of plant material. The which references the declaration
requirements. The declaration must
proposed rule would also establish a requirement, and add a new final
contain the scientific name of the plant,
new section to specify the conditions sentence that acknowledges that the
value of the importation, quantity of the
under which a plant import declaration regulations in part 357 address the
plant, and name of the country from
must be filed and what information it declaration requirement of the Act.
which the plant was harvested.
must include. These conditions reflect On June 30, 2011, we published an Definitions
the provisions of the Act and would advance notice of proposed rulemaking
provide additional context for the We are proposing to define the terms
(ANPR) in the Federal Register (76 FR import and person, and to amend the
proposed exceptions. 38330, Docket No. APHIS–2010–0129),1 definition for plant so that all three
Costs and Benefits soliciting public comment on several definitions in the regulations conform to
regulatory options to address certain the definitions in the statute. We would
To the extent that the proposed rule
issues that have arisen with the define import as meaning to land on,
would provide exceptions from the
implementation of the declaration bring into, or introduce into, any place
provisions of the Act, it would benefit
requirement. These options included subject to the jurisdiction of the United
U.S. importers. Establishing a de
establishing certain exceptions to the States, whether or not such landing,
minimis exception from the declaration
declaration requirement for products bringing, or introduction constitutes an
requirement for products with minimal
with minimal amounts of plant material importation within the meaning of the
amounts of plant material would relieve
and for products containing composite customs laws of the United States. We
importers of the burden of identifying
plant materials. We solicited comments would define person as any individual,
sradovich on DSK3GMQ082PROD with PROPOSALS
very small amounts of plant material,
on these options for 60 days ending on partnership, association, corporation,
while continuing to ensure that the
August 29, 2011, and received 37 trust, or any officer, employee, agent,
declaration requirement fulfills the
comments by that date. The comments department, or instrumentality of the
purposes of the Lacey Act.
received were from academics, Federal Government or of any State or
II. Background political subdivision thereof, or any
1 To view the advance notice of proposed
The Lacey Act (16 U.S.C. 3371 et rulemaking and the comments we received, go to
other entity subject to the jurisdiction of
seq.), first enacted in 1900 and http://www.regulations.gov/#!docketDetail;D= the United States. These definitions are
significantly amended in 1981, is the APHIS-2010-0129. the same as those in the Act and will
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![31702 Federal Register / Vol. 83, No. 131 / Monday, July 9, 2018 / Proposed Rules
(i) In an appendix to the Convention (b) The plant material in a product SUMMARY: The Food, Conservation and
on International Trade in Endangered represents no more than 5 percent of the Energy Act of 2008 amended the Lacey
Species of Wild Fauna and Flora (27 total weight of the individual product Act to provide, among other things, that
UST 1087; TIAS 8249); unit, provided that the total weight of importers submit a declaration at the
(ii) As an endangered or threatened the plant material in [an entry of such time of importation for certain plants
species under the Endangered Species products][a product unit] does not and plant products. The declaration
Act of 1973 (16 U.S.C. 1531 et seq.); or exceed [2.9 kilograms] [or other requirements of the Lacey Act became
(iii) Pursuant to any State law that amount]; or, if the weight cannot be effective on December 15, 2008, and
provides for the conservation of species determined, the value of the plant enforcement of those requirements is
that are indigenous to the State and are material in the individual product unit being phased in. We are soliciting
threatened with extinction. represents no more than 10 percent of public comment on regulatory options
* * * * * the declared value of the product, that could address certain issues that
■ 4. Section 357.3 is added to read as provided that the total quantity of plant have arisen with the implementation of
follows: material in [an entry of such products][a the declaration requirement for
product unit] has a volume of less than composite plant materials.
§ 357.3 Declaration requirement. [1 board foot (that is, 12 x 12 x 1 inches DATES: We will consider all comments
(a) Any person importing any plant or 30.48 x 30.48 x 2.54 centimeters)] [or that we receive on or before September
shall file upon importation a declaration other amount]. 7, 2018.
that contains: (c) A product will not be eligible for ADDRESSES: You may submit comments
(1) The scientific name of any plant an exception under paragraph (b) of this by either of the following methods:
(including the genus and species of the section if it contains plant material • Federal eRulemaking Portal: Go to
plant) contained in the importation; listed: http://www.regulations.gov/#!docket
(2) A description of the value of the (1) In an appendix to the Convention Detail;D=APHIS-2018-0017.
importation and the quantity, including on International Trade in Endangered • Postal Mail/Commercial Delivery:
the unit of measure, of the plant; and Species of Wild Fauna and Flora (27 Send your comment to Docket No.
(3) The name of the country from UST 1087; TIAS 8249); APHIS–2018–0017, Regulatory Analysis
which the plant was taken. (2) As an endangered or threatened and Development, PPD, APHIS, Station
(b) The declaration relating to a plant species under the Endangered Species 3A–03.8, 4700 River Road, Unit 118,
product shall also contain: Act of 1973 (16 U.S.C. 1531 et seq.); or Riverdale, MD 20737–1238.
(1) If the species of plant used to (3) Pursuant to any State law that Supporting documents and any
produce the plant product that is the provides for the conservation of species comments we receive on this docket
subject of the importation varies, and that are indigenous to the State and are may be viewed at http://
the species used to produce the plant threatened with extinction. www.regulations.gov/#!docketDetail;D=
product is unknown, the name of each ■ 6. Section 357.5 is added to read as APHIS-2018-0017 or in our reading
species of plant that may have been follows: room, which is located in Room 1141 of
used to produce the plant product; the USDA South Building, 14th Street
(2) If the species of plant used to § 357.5 Time limit for submission of plant and Independence Avenue SW,
produce the plant product that is the declarations.
Washington, DC. Normal reading room
subject of the importation is commonly In the case of commodities for which hours are 8 a.m. to 4:30 p.m., Monday
taken from more than one country, and a plant declaration is required, the through Friday, except holidays. To be
the country from which the plant was declaration must be submitted within 3 sure someone is there to help you,
taken and used to produce the plant business days of importation. please call (202) 799–7039 before
product is unknown, the name of each Done in Washington, DC, this 3rd day of coming.
country from which the plant may have July 2018. FOR FURTHER INFORMATION CONTACT: Ms.
been taken; and Greg Ibach, Parul Patel, Senior Agriculturalist,
(3) If a paper or paperboard plant Under Secretary for Marketing and Regulatory Permitting and Compliance
product includes recycled plant Programs. Coordination, PPQ, APHIS, 4700 River
product, the average percent recycled [FR Doc. 2018–14630 Filed 7–6–18; 8:45 am] Road, Unit 60, Riverdale, MD 20737–
content without regard for the species or BILLING CODE 3410–34–P 1231; (301) 851–2351.
country of origin of the recycled plant
SUPPLEMENTARY INFORMATION:
product, in addition to the information
for the non-recycled plant content DEPARTMENT OF AGRICULTURE Background
otherwise required by this section. The Lacey Act (16 U.S.C. 3371 et
(Approved by the Office of Management and Animal and Plant Health Inspection seq.), first enacted in 1900 and
Budget under control number 0579–0349) Service significantly amended in 1981, is the
■ 5. Section 357.4 is added to read as United States’ oldest wildlife protection
7 CFR Part 357 statute. The Act combats, among other
follows:
[Docket No. APHIS–2018–0017] things, trafficking in illegally taken
§ 357.4 Exceptions from the declaration wildlife, fish, or plants. The Food,
requirement. RIN 0579–AE36 Conservation and Energy Act of 2008,
sradovich on DSK3GMQ082PROD with PROPOSALS
Plants and products containing plant effective May 22, 2008, amended the
materials are excepted from the Lacey Act Implementation Plan: Lacey Act by expanding its protection to
declaration requirement if: Composite Plant Materials a broader range of plants and plant
(a) The plant is used exclusively as AGENCY: Animal and Plant Health products than were previously covered.
packaging material to support, protect, Inspection Service, USDA. (Section 8204, Prevention of Illegal
or carry another item, unless the Logging Practices). The Lacey Act now
ACTION: Advance notice of proposed
packaging material itself is the item makes it unlawful to import, export,
rulemaking and request for comments.
being imported; or transport, sell, receive, acquire, or
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Document Created: 2018-07-07 00:42:34
Document Modified: 2018-07-07 00:42:34
| Category | Regulatory Information | |
| Collection | Federal Register | |
| sudoc Class | AE 2.7: GS 4.107: AE 2.106: | |
| Publisher | Office of the Federal Register, National Archives and Records Administration | |
| Section | Proposed Rules | |
| Action | Proposed rule. | |
| Dates | We will consider all comments that we receive on or before September 7, 2018. | |
| Contact | Ms. Parul Patel, Senior Agriculturalist, Permitting and Compliance Coordination, PPQ, APHIS, 4700 River Road Unit 60, Riverdale, MD 20737-1231; (301) 851-2351. | |
| FR Citation | 83 FR 31697 | |
| RIN Number | 0579-AD44 | |
| CFR Associated | Endangered and Threatened Species and Plants (agriculture) |
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