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)

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, 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.
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    \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.
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    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