Federal Register, Volume 73 Issue 196 (Wednesday, October 8, 2008)

[Federal Register Volume 73, Number 196 (Wednesday, October 8, 2008)]
[Notices]
[Pages 58925-58927]
From the Federal Register Online via the Government Printing Office [www.gpo.gov]
[FR Doc No: E8-23984]

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DEPARTMENT OF AGRICULTURE

Animal and Plant Health Inspection Service

[Docket No. APHIS-2008-0119]

Implementation of Revised Lacey Act Provisions

AGENCY: Animal and Plant Health Inspection Service, USDA.

ACTION: Notice 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 become
effective on December 15, 2008. The purpose of this notice is to inform
the public about the new Lacey Act provisions, particularly the
declaration requirements and the Federal Government's plan to implement
and enforce the declaration requirements.

DATES: We will consider all comments that we receive on or before
December 8, 2008.

ADDRESSES: You may submit comments by either of the following methods:
Federal eRulemaking Portal: Go to http://
www.regulations.gov/fdmspublic/component/
main?main=DocketDetail&d=APHIS=2008=0119 to submit or view comments and
to view supporting and related materials available electronically.
Postal Mail/Commercial Delivery: Please send two copies of
your comment to Docket No. APHIS-2008-0119, Regulatory Analysis and
Development, PPD, APHIS, Station 3A-03.8, 4700 River Road Unit 118,
Riverdale, MD 20737-1238. Please state that your comment refers to
Docket No. APHIS-2008-0119.
Reading Room: You may read any comments that we receive on this
docket in our reading room. The reading room 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) 690-2817 before coming.
Other Information: Additional information about APHIS and its
programs is available on the Internet at http://www.aphis.usda.gov.

FOR FURTHER INFORMATION CONTACT: Mr. Alex Belano, Assistant Branch
Chief, Commodity Import Analysis and Operations, PPQ, APHIS, 4700 River
Road Unit 133, Riverdale, MD 20737-1231; (301) 734-8758.

SUPPLEMENTARY INFORMATION:

Background

The Lacey Act, first enacted in 1900 and significantly amended in
1981, is the United States' oldest wildlife protection statute. The Act
combats trafficking in ``illegal'' wildlife, fish, and plants. The
Food, Conservation, and Energy Act of 2008, effective May 22, 2008,
amended the Lacey Act by expanding its protection to a broader range of
plants and plant products (Section 8204. Prevention of Illegal Logging
Practices). As of May 22, 2008, the Lacey Act makes it unlawful to
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 the laws of the
United States, a State, an Indian tribe, or any foreign law that
protects plants. The Lacey Act also now makes it unlawful to make or
submit any false record, account or label for, or any false
identification of, any plant covered by the Act.
In addition, Section 3 of the Lacey Act, as amended (16 U.S.C.
3372), makes it unlawful, beginning December 15, 2008, to import
certain plants and plant products without an import declaration. The
U.S. Department of Agriculture's (USDA) Animal and Plant Health
Inspection Service (APHIS) is working with a larger interagency group
composed of representatives from U.S. Forest Service, Customs and
Border Protection (CBP), U.S. Trade Representative (USTR), U.S.
Department of Justice, U.S. Department of State, U.S. Fish and Wildlife
Service (FWS), Council on Environmental Quality, and Department of
Commerce, to implement the new provisions.
Under the amended Lacey Act, beginning December 15, 2008, importers
are required to submit a declaration for certain plants and plant
products. The declaration must contain, among other things, the
scientific name of the plant, value of the importation, quantity of the
plant, and name of the country from which the plant was harvested. For
paper and paperboard products with recycled plant content, the importer
will not be required to specify the species or country of harvest with
respect to the recycled plant product component, but will be required
to provide the average percent recycled content. If the product also
contains non-recycled plant materials, the basic declaration
requirements still apply to that component of the product imported. For
plant products (as opposed to plants), if the plant species from which
they are made varies and are unknown, importers will have to declare
the name of each species that may have been used to produce the
product. Similarly, if a plant product is made of plant species
commonly harvested in more than one country, and the country is
unknown, the importer will be required to declare the name of each
country from which the plant may have been harvested.
Violations of the Lacey Act provisions may be prosecuted in three
basic ways: (1) Civil--monetary penalties; (2) criminal--fines and
penalties and potential incarceration; or (3) forfeiture--dispossession
of the plant, fish, or wildlife in question.

Scope of Plants and Plant Products Covered

Under the Lacey Act, as amended, ``Plant'' means: ``Any wild member
of the plant kingdom, including roots, seeds, parts or product thereof,
and including trees from either natural or planted forest stands.''
There are three categorical exemptions:
1. Common cultivars, except trees, and common food crops (including
roots, seeds, parts, or products thereof);
2. Scientific specimens of plant genetic material (including roots,
seeds, germplasm, parts, or products thereof) that are to be used only
for laboratory or field research;
3. Plants that are to remain planted or to be planted or replanted.

The amendments, including the declaration requirements, still apply for
items described under 2 and 3 if the plant is listed:

In an appendix to the Convention on International Trade in
Endangered Species of Wild Fauna and Flora (27 UST 1087; TIAS 8249)
(CITES);
As an endangered or threatened species under the
Endangered Species Act of 1973 (16 U.S.C. 1531 et seq.) (ESA); 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 covered plants and plant products will require an import
declaration,

[[Page 58926]]

except for those used exclusively as packaging material to support,
protect, or carry another item, unless the packaging material itself is
the item being imported. Thus, the scope of products that will require
a declaration under the Lacey Act is broad and includes certain live
plants, plant parts, lumber, wood pulp, paper and paperboard, and
products containing certain plant material or products, which may
include certain furniture, tools, umbrellas, sporting goods, printed
matter, musical instruments, products manufactured from plant-based
resins, and textiles.
USDA and the Department of the Interior have been given authority
under the Lacey Act to define the terms ``common cultivar'' and
``common food crop.'' APHIS and FWS are currently working on a joint
rulemaking that will define those terms, thus clarifying the
application of the declaration requirements.

Implementation Plan for Declaration Requirements

CBP already collects some of the information that the Lacey Act
amendments require importers to include in their declaration. CBP is
currently developing an electronic system that will collect the
remaining data required to be declared, and we intend to begin
enforcement of the declaration requirements upon completion of the
electronic system. CBP anticipates completing the electronic system by
April 1, 2009. We will publish a notice in the Federal Register
announcing the specific dates in which enforcement of the declaration
requirements will begin once the electronic system is near completion.
Once the electronic system is completed, all agencies with Lacey
Act enforcement authority will employ a phase-in approach to
enforcement of the Lacey Act declaration requirements. Prior to the
availability of electronic filing, from December 15, 2008, to April 1,
2009, or as soon thereafter as the electronic system is available,
APHIS will make a paper declaration form available for voluntary
submission. No agencies with Lacey Act enforcement authority will bring
prosecutions or forfeiture actions for failing to complete the paper
declaration form before the electronic system for data collection is
available (April 1, 2009, or after); however, any person who submits a
form containing false information may be prosecuted.
On April 1, 2009, or as soon thereafter as the electronic system
for collecting the declaration is available, we will begin enforcement
of the declaration for wood and certain wood products and certain live
plants and related products (see table below). During the initial few
months of phase-in for any group of products, enforcement agencies will
take into consideration in their actions and decisions any technical
issues that may be encountered in the initial process of implementing
the electronic filing system. The proposed phase-in enforcement
schedule through September 30, 2009, is described in the table below.

Proposed Phase-In Schedule of Enforcement of the Declaration Requirements for Goods of, or Containing, Plants or
Plant Products\*\
[Specific goods may be exempt \**\]
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I II III
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Beginning April 1, 2009 (or
as soon thereafter as an
Present--March 2009 electronic system is Beginning July 1, 2009 (approximate)
available)
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PPQ Plant Import Declaration Form Harmonized Tariff Schedule HTS Chapters:
will be available on Web site, and (HTS) Chapters:. Ch. 47 (wood pulp).
accepted after Dec. 15, 2008. Ch. 44 (wood & articles of Ch. 48 (paper & articles of).
wood). Ch. 92 (musical instruments).
Ch. 94 (furniture).
Domestic and International Outreach Ch. 6 (live trees, plants, Plus chapters included in Phase II.
bulbs, cut flowers,
ornamental foliage, etc.).
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Note: Chapter descriptions are for ease of reference only.
\*\ Declaration requirements are effective as of Dec.15, 2008. All declarations submitted must be accurate;
false statements are enforceable. Failure to submit a declaration will not be prosecuted, and customs
clearance will not be denied for lack of a declaration until after the phase-in date above.
\**\ Example: In HTS Ch. 6, most live plants not listed under CITES, the ESA, or certain State laws would be
exempt from these declaration requirements. See the Lacey Act regarding further exemptions.

After September 30, 2009, based on experience with the
implementation of the electronic system for declaration data
collection, we will phase in enforcement of the declaration
requirements for additional chapters containing plants and plant
products covered by the Lacey Act, including (but not limited to) Ch.
12 (oil seeds, misc. grain, seed, fruit, plant, etc.), Ch. 13 (gums,
lacs, resins, vegetable saps, extracts, etc.), Ch. 14 (vegetable
plaiting materials and products not elsewhere specified or included),
Ch. 45 (cork and articles of), Ch. 46 (basket ware and wickerwork), Ch.
66 (umbrellas, walking sticks, riding crops), Ch. 82 (tools), Ch. 93
(guns), Ch. 95 (toys, games and sporting equipment), Ch. 96 (brooms,
pencils, and buttons), and Ch. 97 (works of art). We will announce a
specific phase-in schedule for those chapters in a subsequent Federal
Register notice.

Information Collection

In accordance with the Paperwork Reduction Act of 1995 (44 U.S.C.
3501 et seq.), APHIS is currently seeking Office of Management and
Budget emergency approval to collect information that the Lacey Act
requires importers to include in the declaration and that is not
already being collected for other purposes. APHIS is also requesting
emergency approval of a paper form that may be used for declarations.
The emergency approval will be valid for 6 months and will allow us to
collect the information and make the paper form available for immediate
use. Once we have this emergency approval, APHIS will publish a notice
in the Federal Register announcing the availability of the paper form
and soliciting comments from the public (as well as affected agencies)
on these information collection requirements and stating our intention
to request an extension of the 6-month approval.

[[Page 58927]]

Public Meeting

We are advising the public that we are hosting a public meeting on
implementation of the amendments to the Lacey Act on October 14, 2008,
from 10 a.m. to 12 p.m. The meeting will be held in the Jefferson
Auditorium, South Agriculture Building, U.S. Department of Agriculture,
1400 Independence Avenue, SW., Washington, DC. Participants should
enter the South Agriculture Building through the 7th wing entrance of
the building located at Independence Avenue and 14th Street. Valid
photo identification is required for clearance by building security
personnel. Please arrive 30 minutes prior to the scheduled start of the
meeting. The purpose of the meeting is to provide the public with
information on the declaration requirements and declaration enforcement
phase-in plan, enforcement of provisions that are already in effect,
scope, and other related issues, as well as to provide the public with
an opportunity to ask questions of the agencies involved in the
implementation of the declaration requirements and enforcement of the
Act.
If you require special accommodations, such as a sign language
interpreter, please contact the person listed under FOR FURTHER
INFORMATION CONTACT.
Additional meetings are likely to be held this winter near key port
locations in the United States. We will announce the locations and
dates of those meetings in the Federal Register.

Additional Information

APHIS will provide the latest information regarding the Lacey Act
on our Web site, http://www.aphis.usda.gov. The Web site currently
contains the Lacey Act, as amended; a Microsoft PowerPoint presentation
covering background and context, new requirements, commodities and
products covered, information on prohibitions, and the current status
of implementation of the declaration requirements of the Lacey Act;
frequently asked questions; and the phase-in implementation plan. The
Web site will be updated as new materials become available. Persons
interested in receiving timely updates on APHIS' Lacey Act efforts
should register for our stakeholder registry at https://
web01.aphis.usda.gov/PPQStakeWeb2.nsf and select ''Lacey Act
Declaration'' as a topic of interest.

Done in Washington, DC, this 3rd day of October 2008.
Cindy J. Smith,
Administrator, Animal and Plant Health Inspection Service.
[FR Doc. E8-23984 Filed 10-7-08; 8:45 am]
BILLING CODE 3410-34-P