[Federal Register Volume 74, Number 169 (Wednesday, September 2, 2009)]
[Pages 45415-45418]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: E9-21216]



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.


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. The purpose of this notice is to inform the public 
of the Federal Government's revised plan to phase in enforcement of the 
declaration requirement and other implementation plans.

DATES: We will consider all comments that we receive on or before 
November 2, 2009.

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, Branch Chief, Risk 
Management and Plants for Planting Policy, RPM, PPQ, APHIS, 4700 River 
Road Unit 133, Riverdale, MD 20737-1231; (301) 734-8758.



    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 ``illegal'' 
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). As amended, the Lacey 
Act now makes it unlawful to import, export, transport, sell, receive, 
acquire, or purchase in interstate or foreign commerce any plant, with 
some limited exceptions, taken in violation of the laws of a U.S. State 
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. In addition, Section 3 of 
the Lacey Act, as amended (16 U.S.C. 3372), makes it unlawful to import 
certain plants and plant products without an import declaration. 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 where the plant was harvested. For paper and 
paperboard products containing recycled content, the declaration also 
must include the average percent of recycled content without regard for 
species or country of harvest.

Comment Analysis

    On October 8, 2008, we published a notice in the Federal Register 
(73 FR 58925-58927, Docket No. APHIS-2008-0119) announcing our plans to 
begin phased-in enforcement of the declaration requirement on April 1, 
2009, and provided dates and products covered for the first three 
phases of enforcement. We solicited comments on the proposed phase-in 
plan for 60 days ending on December 8, 2008, and received 124 comments 
by that date. On February 3, 2009, we published a second notice in the 
Federal Register (74 FR 5911-5913, Docket No. APHIS-2008-0119) and 
provided a revised, more detailed phase-in schedule based on comments 
we received in response to the October notice. We solicited comment on 
the revised phase-in plan for 60 days ending on April 6, 2009, and 
received 41 comments by that date. The comments covered a range of 

[[Page 45416]]

including the scope of the declaration requirement, the specific 
products covered in each phase, definitions of terms, length of phases, 
effects on trade/industry, and enforcement issues. While we will not 
specifically address each of the comments in this notice, we have 
revised the phase-in schedule based on the comments we received and our 
experience with implementation to date. We will also publish a separate 
notice in the Federal Register to respond to the substantive comments 
that we have received to date. We will continue to take into account 
public comments as we continue to implement the provisions related to 
the declaration requirement of the Lacey Act.

Revised Phase-in Schedule

    After review of the comments received, further internal 
consideration, and experience with implementation of the first phase of 
enforcement of the declaration requirement, we have revised the phase-
in schedule, which covers the period from December 15, 2008, to August 
31, 2010. In our February notice, we committed to providing affected 
individuals and industry with at least 6 months' notice for any 
products that would be added to the phase-in schedule. Although we have 
modified phase III, which is scheduled to begin on October 1, 2009, we 
have only removed items from this phase. Phase IV, scheduled to begin 
April 1, 2010, has been substantially revised. Those changes were based 
on information supplied by commenters and further consideration within 
the interagency group of the products that would supply the most 
valuable information to inform the Federal Government as we continue to 
implement the statute and develop recommendations for Congress as 
required by the Act.
    Several commenters contended that identifying composite and 
recycled or reused materials (e.g., medium density fiberboard, 
particleboard, and scrap wood) to the genus and/or species level would 
be difficult and in some cases impossible. In response to those 
comments, we have decided to further delay enforcement of the 
declaration for such products. We currently propose to begin enforcing 
the declaration for those products no earlier than September 1, 2010. 
This delay in enforcement of the declaration requirement will allow the 
Federal Government more time to evaluate options for enforcing the 
declaration for these goods.
    The revised phased-in enforcement schedule through August 31, 2010, 
is described in the table below with the date that enforcement of the 
declaration requirement begins listed at the top of each column. It is 
important to note that while enforcement of the declaration requirement 
is being phased in, the other Lacey Act amendments are already 
effective, and actions to enforce provisions of the Act other than the 
declaration requirement may be taken at any time.

   Phase-In Schedule of Enforcement of the Declaration Requirement for
           Goods of, or Containing, Plants or Plant Products*
      II April 1, 2009         III October 1, 2009    IV April 1, 2010
HTS Chapters:                 HTS Chapters:         HTS Chapters:
Ch. 44 Headings (wood &       Ch. 44 Headings       Ch. 44 Headings
 articles of wood).            (wood & articles of   (wood & articles of
                               wood).                wood)
    4401--(Fuel wood).......     4402--Wood            4421--Other
                                  charcoal.             articles of
    4403--(Wood in the           4412--Plywood,     Ch. 66 Headings
     rough).                      veneered panels,   (umbrellas, walking
                                  except 44129906    sticks, riding
                                  and 44129957.      crops).
    4404--Hoopwood; poles,       4414--Wooden          6602--Walking
     piles, stakes).              frames.               sticks, whips,
    4406--Railway or tramway     4419--Tableware &  Ch. 82 Headings
     sleepers).                   kitchenware of     (tools,
                                  wood.              implements).
    4407--(Wood sawn or          4420--Wood            8201--Hand tools.
     chipped lengthwise).         marquetry,
    4408--(Sheets for         ....................  Ch. 92 Headings
     veneering).                                     (musical
    4409--(Wood continuously  ....................     9201--Pianos.
    4417--(Tools, tool        ....................     9202--Other
     handles, broom handles).                           stringed
    4418--(Builders' joinery  ....................  Ch. 93 Headings
     and carpentry of wood).                         (arms and
                                                        and pistols.
                                                        and accessories
                                                        for revolvers
                                                        and pistols.
                                                    Ch. 94 Headings
                                                     (furniture, etc.).
                                                        with wood
                                                    Ch. 95 Headings
                                                     (toys, games, &
                                                        and accessories
                                                        for billiards.
                                                    Ch. 97 Headings
                                                     (works of art).
                              PLUS PHASE II.......  PLUS PHASES II &
* Declaration requirements were effective as of December15, 2008. All
  declarations submitted must be accurate; false statements may be
  referred for enforcement. 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.

    Federal enforcement will address failures to file declarations for 
entries of products in the Harmonized Tariff Schedule (HTS) subchapters 
listed in the above phase-in schedule, unless APHIS publishes another 
notice in the Federal Register announcing an amended implementation 
plan. We recognize that many of the headings listed in phase IV of the 
phase-in schedule contain goods that are not composed of wood or other 
plant material. We wish to clarify that a declaration is not required 
for products that have no wood or other plant content. For example, 
both metal hammers and hammers with wooden handles are included in HTS 

[[Page 45417]]

82. In that example, only the hammers with wooden handles would require 
a declaration as of April 1, 2010.
    There will be no further additions to phases III or IV. We intend 
to provide at least 6 months' notice to persons and industries affected 
by changes to the phase-in schedule to facilitate compliance with the 
new requirements. Changes will be announced in the Federal Register. We 
invite public comment on the revised schedule for enforcement of the 
    We also seek comment on the following HTS chapters/subchapters 
currently under consideration for subsequent phases that would be 
scheduled to begin on or after September 1, 2010:

 Ch. 44 Headings (wood & articles of wood)
    [cir] 4405--Wood wool [excelsior]
    [cir] 4410--Particle board
    [cir] 4411--Fiberboard of wood
    [cir] 4412--Plywood, including 44129906 and 44129957
    [cir] 4413--Densified wood
    [cir] 4415--Packing cases, boxes, crates, drums
    [cir] 4416--Casks, barrels, vats, tubs
 Ch. 47 Headings (wood pulp)
    [cir] 4701--Mechanical wood pulp
    [cir] 4702--Chemical wood pulp, dissolving
    [cir] 4703--Chemical wood pulp, sulfate
    [cir] 4704--Chemical wood pulp, sulfite
    [cir] 4705--Combination mechanical and chemical
 Ch. 92 Headings (musical instruments)
    [cir] 9205--Wind musical instruments
 Ch. 48 Headings (paper & articles of)
    [cir] 4801--Newsprint
    [cir] 4802--Uncoated writing paper
    [cir] 4803--Toilet or facial tissue stock
    [cir] 4804--Uncoated kraft paper
    [cir] 4805--Other uncoated paper and board
    [cir] 4806--Vegetable parchment, etc.
    [cir] 4807--Composite paper and board
    [cir] 4808--Corrugated paper and board
    [cir] 4809--Carbon paper
    [cir] 4810--Coated paper and board
    [cir] 4811--Paper coated, etc.
 Ch. 66 Headings (umbrellas, walking sticks, riding crops)
    [cir] 6601--Umbrellas
    [cir] 6603--Umbrella parts
     Ch. 94 Headings (furniture, etc.)
    [cir] 9401--Seats
    [cir] 940330--Wooden office furniture
    [cir] 940340--Wooden kitchen furniture
    [cir] 940350--Wooden bedroom furniture
    [cir] 940360--Other wooden furniture
    [cir] 940381--Furniture of cane, osier, bamboo, rattan, or similar 
 Ch. 95 Headings (toys, games & sporting equipment)
    [cir] 9504--Articles for arcade, table, or parlor games

    We continue to consider the applicability of the declaration 
requirement to other products not included in the revised phase-in 
schedule or listed above. In particular, we seek comment on how the 
declaration requirement should be enforced as to additional goods 
classified under the following HTS headings:

 Ch. 48 Paper & articles of
 Ch. 82 Tools, implements
 Ch. 89 Ships, boats, & floating structures
 Ch. 93 Arms and ammunition
 Ch. 94 Furniture, etc.
 Ch. 95 Toys, games, & sporting equipment
 Ch. 96 Brooms, pencils, buttons
    As noted in the February 2009 Federal Register notice, the Federal 
Government is also conducting studies on other HTS headings to inform 
its implementation of the Lacey Act.

Blanket Declarations

    Several commenters requested that APHIS consider the use of blanket 
declarations instead of shipment-by-shipment declarations. Blanket 
declarations could be used to declare routine and/or repeat shipments. 
The commenters noted that such declarations would reduce the paperwork 
burden on affected entities, reduce costs, and could, in addition, 
improve the quality and usefulness of the information collected. Some 
commenters provided detailed descriptions of possible blanket 
declaration programs.
    The Federal Government is making every effort to implement the 
amended Lacey Act, including the declaration requirement, in a manner 
that is consistent with the Act and, at the same time, recognizes the 
burden of compliance on industry. We also have an objective of 
improving the overall quality of the information contained in the 
import declarations. In that context, we are currently evaluating 
options for blanket certification programs. We recently announced a 
pilot blanket declaration program for participants in Customs and 
Border Protection's expedited border release programs, Automated Line 
Release (ALR) or Border Release Advance Screening and Selectivity 
(BRASS). This pilot program will test the feasibility of collecting the 
information required through the use of a periodic ``blanket'' 
declaration, with subsequent reconciliation reports. Information on how 
to participate in this program is available on APHIS' Lacey Act Web 
page http://www.aphis.usda.gov/plant_health/lacey_act/index.shtml.

Use of Spp. To Identify Species of Imported Plants

    Several commenters proposed that APHIS allow for importers to 
provide only the genus name in circumstances where the individual 
species would be difficult to identify. The commenters contended that 
in some circumstances, the individual species used to manufacture the 
product would be impossible to identify and that they would therefore 
have to list dozens or even hundreds of possible species. The 
commenters contended that this information would be of little value to 
the Federal Government as it relates to enforcement of the declaration 
requirement and that it would result in significantly greater filing 
costs for them. Along similar lines, some of those commenters asked 
that APHIS allow for the use of common nomenclature for species 
identification. One example provided is SPF, a common grade of lumber 
manufactured from varying proportions of spruce, pine, or fir species 
in Canada. SPF imports from Canada are a combination of several 
distinct species, but identifying the particular species in any 
individual shipment would be difficult. The commenter recommended that 
APHIS develop a list of shorthand designations that would satisfy the 
requirement to provide genus and species information for these common 
nomenclature groups.
    The amended Lacey Act explicitly states that the import declaration 
must contain both the genus and the species of the imported plant 
material. Further, the Act states that if a species is unknown, then 
the declaration should contain a list of all of the possible species 
that may be present in the product. Therefore, in circumstances where 
the list of possible species in a particular product includes all 
species in a genus, it is acceptable to use ``spp.'' following the 
genus name on the import declaration form. However, when reference to 
all possible species in a genus is not accurate (based on geographical 
or other factors), importers are expected to provide either the single 
genus and species, or a specific list on the import declaration form of 
all possible species that may have been used to produce the plant 
    With regard to the use of shorthand group designations like SPF, 
the Federal Government is currently considering this approach. 
Specifically, we are considering criteria that might be used to define 
genus and species groups and the extent to which we might accept the

[[Page 45418]]

use of group designations on the import declaration either under our 
current authority or through the regulatory authority provided in the 
amended Lacey Act.

Declaration Form

    A printable declaration form is currently available for voluntary 
submission on the Internet at http://www.aphis.usda.gov/plant_health/lacey_act/index.shtml or from the person listed under FOR FURTHER 
INFORMATION CONTACT. We will continue to revise the declaration form to 
make editorial changes and otherwise clarify the requirements for the 
form. To ensure that you are using the most updated form, please visit 
the APHIS Web site to verify the current version. You may submit 
completed declaration forms by mail to: The Lacey Act, c/o U.S. Dept of 
Agriculture, Box 10, 4700 River Road, Riverdale, MD 20737.
    As indicated previously, we encourage importers to file the data 
required by the amended Lacey Act electronically through the Automated 
Commercial System (ACS). If a paper declaration is used, please submit 
the original. The declaration form cannot be submitted online or by e-

Additional Information

    APHIS will continue to provide the latest information regarding the 
Lacey Act on our Web site, http://www.aphis.usda.gov/plant_health/lacey_act/index.shtml. The Web site currently contains the Lacey Act, 
as amended; a slideshow covering background and context, new 
requirements, commodities and products covered, information on 
prohibitions, and the current status of implementation of the 
declaration requirement of the Lacey Act; frequently asked questions; 
the phase-in implementation plan; and the paper declaration form. The 
Web site will be updated as new materials become available. We 
encourage persons interested in receiving timely updates on APHIS' 
Lacey Act efforts to 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 27th day of August 2009.
Kevin Shea,
Acting Administrator, Animal and Plant Health Inspection Service.
[FR Doc. E9-21216 Filed 9-1-09; 8:45 am]