83 FR 31702 - Lacey Act Implementation Plan: Composite Plant Materials

DEPARTMENT OF AGRICULTURE
Animal and Plant Health Inspection Service

Federal Register Volume 83, Issue 131 (July 9, 2018)

Page Range		31702-31704
FR Document		2018-14625

The Food, Conservation and Energy Act of 2008 amended the Lacey Act to provide, among other things, that importers submit a declaration at the time of importation for certain plants and plant products. The declaration requirements of the Lacey Act became effective on December 15, 2008, and enforcement of those requirements is being phased in. We are soliciting public comment on regulatory options that could address certain issues that have arisen with the implementation of the declaration requirement for composite plant materials.

Federal Register, Volume 83 Issue 131 (Monday, July 9, 2018)

[Federal Register Volume 83, Number 131 (Monday, July 9, 2018)]
[Proposed Rules]
[Pages 31702-31704]
From the Federal Register Online  [www.thefederalregister.org]
[FR Doc No: 2018-14625]


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DEPARTMENT OF AGRICULTURE

Animal and Plant Health Inspection Service

7 CFR Part 357

[Docket No. APHIS-2018-0017]
RIN 0579-AE36


Lacey Act Implementation Plan: Composite Plant Materials

AGENCY: Animal and Plant Health Inspection Service, USDA.

ACTION: Advance notice of proposed rulemaking and request for comments.

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SUMMARY: The Food, Conservation and Energy Act of 2008 amended the 
Lacey Act to provide, among other things, that importers submit a 
declaration at the time of importation for certain plants and plant 
products. The declaration requirements of the Lacey Act became 
effective on December 15, 2008, and enforcement of those requirements 
is being phased in. We are soliciting public comment on regulatory 
options that could address certain issues that have arisen with the 
implementation of the declaration requirement for composite plant 
materials.

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-2018-0017.
     Postal Mail/Commercial Delivery: Send your comment to 
Docket No. APHIS-2018-0017, 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-2018-
0017 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:

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, among other things, 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 than were previously covered. (Section 8204, Prevention of 
Illegal Logging Practices). The Lacey Act now makes it unlawful to 
import, export, transport, sell, receive, acquire, or

[[Page 31703]]

purchase in interstate or foreign commerce any plant, with some limited 
exceptions, taken, possessed, transported, or sold in violation of any 
law of the United States or an Indian tribe, 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, as of 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, the Animal and Plant Health Inspection Serviced 
(APHIS) 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. 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.
---------------------------------------------------------------------------

    \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.
---------------------------------------------------------------------------

    The first regulatory option we discussed in the 2011 ANPR was the 
possibility of establishing a limited exception to the plant 
declaration requirement for imported products containing minimal 
amounts of plant material. The Lacey Act does not explicitly address 
whether the declaration requirement is intended to apply to such 
products, 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. In a separate 
document published today in the Federal Register, we are proposing to 
establish an exception to the Lacey Act plant declaration requirement 
for such products.
    This notice addresses the second regulatory option that was 
discussed in the 2011 ANPR that related to a separate de minimis 
exception that related to composite plant products. This exception 
would cover composite plant materials that are not otherwise considered 
de minimis quantities under the first regulatory option. Many composite 
plant materials are currently manufactured in a manner that makes 
identification of the genus, species, and country of harvest of all of 
the plant content difficult and perhaps expensive. While provisions in 
the Lacey Act's declaration requirement address how to complete a 
declaration in situations in which the species or country of harvest of 
plant material used in an imported product varies (16 U.S.C. 
3372(f)(2)(A) and (B)), these provisions may not relieve the 
difficulties and expense faced by importers of some composite plant 
materials. In the 2011 ANPR, we solicited comments on defining the term 
composite plant materials and on two possible approaches to 
incorporating such a definition into a separate de minimis exception 
from the declaration requirement specifically for such composite plant 
materials.
    Specifically, we invited comment on the possibility of defining 
composite plant materials as plant products and plant-based components 
of products where the original plant material is mechanically or 
chemically broken down and subsequently re-composed or used as an 
extract in a manufacturing process. Such a definition would need to be 
broad enough to include various complex composite materials (e.g., 
pulp, paper, paperboard, medium density fiberboard, high density 
fiberboard, and particleboard), and also need to include exceptions for 
species listed in an appendix to the Convention on International Trade 
in Endangered Species; 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.
    Of the 37 commenters on the ANPR, 16 specifically addressed the 
potential approaches for composite plant materials. Most of those 
commenters supported defining the term composite plant materials 
because such a definition would provide additional guidance to 
importers. Several commenters requested that the definition be written 
in a way to exclude certain products, such as plant-derived perfume 
components and seaweed products. One commenter expressed concern that, 
under the definition we suggested in the ANPR, any wood product other 
than a log or piece of sawn timber that has not been subsequently 
attached somehow to other wood material could be defined as composite. 
Another commenter opposed the definition as contrary to the spirit and 
letter of the Lacey Act but did not address any specific aspects of the 
definition.
    We also invited comments on two possible approaches to 
incorporating such a definition into a de minimis exception from the 
declaration requirement for composite plant materials. In the first 
approach, if the plant product being imported is composed in whole or 
in part of a composite plant material, importers would be exempted from 
identifying the genus, species, and country of harvest of up to a given 
percentage of the composite plant material content, measured on the 
basis of either weight or volume.
    In the second approach, where the plant product being imported is 
composed in whole or in part of a composite plant material, the 
declaration would have to contain the average percent composite plant 
content, measured on the basis of either weight or volume, without 
regard for the species or country of harvest of the plant, in addition 
to information as to genus, species, and country of harvest for any 
non-composite plant content.
    Many of the commenters preferred the second approach to 
incorporating the definition into a de minimis exception to the plant 
declaration as the easiest to implement and least burdensome on 
importers. However, two commenters opposed omitting species and harvest 
location from the declaration for composite plant materials because 
they believed that omission would permanently exclude those products 
from the declaration requirement and would therefore be contrary to the 
intent of the Lacey Act. One of these commenters stated that while 
small amounts of diverse plant material may enter production streams 
unknowingly, the bulk of wood fiber used to make fiberboard, medium-
density fiberboard, high-density fiberboard, and similar materials is 
purposefully processed into

[[Page 31704]]

wood chips with the direct intent of producing a composite product. The 
commenter further stated that in order for this process to be 
economically feasible, the majority of the raw materials are sourced 
within close proximity of the mill or plant. The commenter stated that 
this practice greatly limits the number of species that could be 
included in the product.
    We have decided to publish another ANPR to solicit comments 
addressing the following questions:
     Is the scope of the proposed definition for composite 
plant materials appropriate, and if not, how could it be revised?
     What would be an appropriate threshold for a de minimis 
exception from the declaration requirement for composite plant 
materials under the first approach identified above? We especially 
invite comment on the feasibility of providing importers an exemption 
from identifying in a declaration the genus, species, and country of 
harvest for up to 5 percent of the composite plant material in a 
product being imported so long as it does not include material from 
plants of conservation concern that are listed in an appendix to the 
Convention on International Trade in Endangered Species; as an 
endangered or threatened species under the Endangered Species Act of 
1973; or pursuant to any State law that provides for the conservation 
of species that are indigenous to the State and are threatened with 
extinction. We also invite comment on whether that percentage should be 
higher or lower, and why. Additional data on why commenters support 
either the 5 percent threshold or an alternative threshold would be 
useful for the rulemaking process. We note that where a paper or 
paperboard plant product includes recycled plant product the statute 
only requires that the importer identify an average percent of recycled 
content without regard for the species or country of harvest of a 
recycled product, in addition to the information otherwise required for 
the non-recycled plant content.
     Would the second approach discussed above, in which the 
declaration would have to contain the average percent composite plant 
content, measured on the basis of either weight or volume (in addition 
to information as to genus, species, and country of harvest for any 
non-composite plant content) be appropriate as a de minimis exception 
to the Lacey Act declaration requirement and consistent with the 
statute? Would such an approach affect U.S. manufacturers who export 
finished products to Europe and other market nations that may require 
their traders to authenticate the source of wood or wood products?
     Would an alternative approach to either of those described 
above concerning the import declaration requirement be appropriate in 
the case of composite products, and why?
     What specific activities would affected entities 
(including importers and their suppliers) need to engage in in order to 
identify the species and country of harvest of plants in composite 
plant materials and thereby comply with the declaration requirement for 
products containing such plant materials?
     How would those specific activities be affected by various 
levels of a de minimis exception to the declaration requirement 
products containing composite plant materials?
     In commenting on any of the approaches described above or 
proposing an alternative threshold, comments should take into 
consideration that a de minimis exception to a statutory requirement is 
being proposed, which means that the exception should be appropriately 
limited and consistent with the statute.
    This action 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.

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

    Done in Washington, DC, this 3rd day of July 2018.
Greg Ibach,
Under Secretary for Marketing and Regulatory Programs.
[FR Doc. 2018-14625 Filed 7-6-18; 8:45 am]
 BILLING CODE 3410-34-P

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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Federal Register / Vol. 83, No. 131 / Monday, July 9, 2018 / Proposed Rules 31703

purchase in interstate or foreign questionable whether the regulatory materials. Most of those commenters
commerce any plant, with some limited objectives of the Lacey Act are furthered supported defining the term composite
exceptions, taken, possessed, by applying this requirement to minimal plant materials because such a
transported, or sold in violation of any amounts of non-listed (i.e., not of definition would provide additional
law of the United States or an Indian conservation concern) plant materials guidance to importers. Several
tribe, or in violation of any State or contained in an otherwise non-plant commenters requested that the
foreign law that protects plants or that product. In a separate document definition be written in a way to
regulates certain specified plant-related published today in the Federal Register, exclude certain products, such as plant-
activities. The Lacey Act also now we are proposing to establish an derived perfume components and
makes it unlawful to make or submit exception to the Lacey Act plant seaweed products. One commenter
any false record, account, or label for, or declaration requirement for such expressed concern that, under the
any false identification of, any plant. products. definition we suggested in the ANPR,
In addition, Section 3 of the Lacey This notice addresses the second any wood product other than a log or
Act, as amended, makes it unlawful, as regulatory option that was discussed in piece of sawn timber that has not been
of December 15, 2008, to import certain the 2011 ANPR that related to a separate subsequently attached somehow to
plants, including plant products, de minimis exception that related to other wood material could be defined as
without an import declaration. The composite plant products. This composite. Another commenter opposed
import declaration serves as a tool for exception would cover composite plant the definition as contrary to the spirit
combatting the illegal trade in timber materials that are not otherwise and letter of the Lacey Act but did not
and timber products by ensuring considered de minimis quantities under address any specific aspects of the
importers provide required information. the first regulatory option. Many definition.
Through the declaration requirement, composite plant materials are currently We also invited comments on two
the importer maintains accountability manufactured in a manner that makes possible approaches to incorporating
for exercising reasonable care regarding identification of the genus, species, and such a definition into a de minimis
the content of the shipment before it country of harvest of all of the plant exception from the declaration
arrives in the United States. Information content difficult and perhaps expensive. requirement for composite plant
from the declaration is also used to While provisions in the Lacey Act’s materials. In the first approach, if the
monitor implementation of Lacey Act declaration requirement address how to plant product being imported is
requirements. The declaration must complete a declaration in situations in composed in whole or in part of a
contain the scientific name of the plant, which the species or country of harvest composite plant material, importers
value of the importation, quantity of the of plant material used in an imported would be exempted from identifying the
plant, and name of the country from product varies (16 U.S.C. 3372(f)(2)(A) genus, species, and country of harvest of
which the plant was harvested. and (B)), these provisions may not up to a given percentage of the
On June 30, 2011, the Animal and relieve the difficulties and expense composite plant material content,
Plant Health Inspection Serviced faced by importers of some composite measured on the basis of either weight
(APHIS) published an advance notice of plant materials. In the 2011 ANPR, we or volume.
proposed rulemaking (ANPR) in the solicited comments on defining the term In the second approach, where the
Federal Register (76 FR 38330, Docket composite plant materials and on two plant product being imported is
No. APHIS–2010–0129),1 soliciting possible approaches to incorporating composed in whole or in part of a
public comment on several regulatory such a definition into a separate de composite plant material, the
options to address certain issues that minimis exception from the declaration declaration would have to contain the
requirement specifically for such average percent composite plant
have arisen with the implementation of
composite plant materials. content, measured on the basis of either
the declaration requirement. These
Specifically, we invited comment on weight or volume, without regard for the
options included establishing certain
the possibility of defining composite species or country of harvest of the
exceptions to the declaration
plant materials as plant products and plant, in addition to information as to
requirement. We solicited comments on
plant-based components of products genus, species, and country of harvest
these options for 60 days ending on
where the original plant material is for any non-composite plant content.
August 29, 2011, and received 37 Many of the commenters preferred the
mechanically or chemically broken
comments by that date. The comments second approach to incorporating the
down and subsequently re-composed or
received were from academics, definition into a de minimis exception
used as an extract in a manufacturing
environmental groups, importers and process. Such a definition would need to the plant declaration as the easiest to
exporters, industry associations, a trade to be broad enough to include various implement and least burdensome on
union, representatives of foreign complex composite materials (e.g., pulp, importers. However, two commenters
governments, and private citizens. paper, paperboard, medium density opposed omitting species and harvest
The first regulatory option we location from the declaration for
fiberboard, high density fiberboard, and
discussed in the 2011 ANPR was the particleboard), and also need to include composite plant materials because they
possibility of establishing a limited exceptions for species listed in an believed that omission would
exception to the plant declaration appendix to the Convention on permanently exclude those products
requirement for imported products International Trade in Endangered from the declaration requirement and
containing minimal amounts of plant Species; as an endangered or threatened would therefore be contrary to the intent
sradovich on DSK3GMQ082PROD with PROPOSALS

material. The Lacey Act does not species under the Endangered Species of the Lacey Act. One of these
explicitly address whether the Act of 1973; or pursuant to any State commenters stated that while small
declaration requirement is intended to law that provides for the conservation of amounts of diverse plant material may
apply to such products, but it is species that are indigenous to the State enter production streams unknowingly,
1 To view the advance notice of proposed
and are threatened with extinction. the bulk of wood fiber used to make
rulemaking and the comments we received, go to
Of the 37 commenters on the ANPR, fiberboard, medium-density fiberboard,
http://www.regulations.gov/#!docketDetail;D= 16 specifically addressed the potential high-density fiberboard, and similar
APHIS-2010-0129. approaches for composite plant materials is purposefully processed into

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Document Created: 2018-07-07 00:42:15
Document Modified: 2018-07-07 00:42:15

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		Advance notice of proposed rulemaking and request for comments.
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 31702
RIN Number		0579-AE36

83 FR 31702 - Lacey Act Implementation Plan: Composite Plant Materials

DEPARTMENT OF AGRICULTUREAnimal and Plant Health Inspection Service

Federal Register Volume 83, Issue 131 (July 9, 2018)

DEPARTMENT OF AGRICULTURE
Animal and Plant Health Inspection Service