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



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.


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.



    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) 
     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 

[[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 \**\]
                 I                                II                                    III
                                     Beginning April 1, 2009 (or
                                       as soon thereafter as an
        Present--March 2009              electronic system is          Beginning July 1, 2009 (approximate)
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.).
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 
    If you require special accommodations, such as a sign language 
interpreter, please contact the person listed under FOR FURTHER 
    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]