[Federal Register Volume 74, Number 169 (Wednesday, September 2, 2009)]
[Notices]
[Pages 45415-45418]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: E9-21216]
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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.
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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. 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.
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 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
topics,
[[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*
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II April 1, 2009 III October 1, 2009 IV April 1, 2010
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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
wood.
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,
crops.
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,
caskets,
statuettes.
4408--(Sheets for .................... Ch. 92 Headings
veneering). (musical
instruments).
4409--(Wood continuously .................... 9201--Pianos.
shaped).
4417--(Tools, tool .................... 9202--Other
handles, broom handles). stringed
instruments.
4418--(Builders' joinery .................... Ch. 93 Headings
and carpentry of wood). (arms and
ammunition).
9302--Revolvers
and pistols.
93051020--Parts
and accessories
for revolvers
and pistols.
Ch. 94 Headings
(furniture, etc.).
940169--Seats
with wood
frames.
Ch. 95 Headings
(toys, games, &
sporting
equipment).
950420--Articles
and accessories
for billiards.
Ch. 97 Headings
(works of art).
9703--Sculptures.
PLUS PHASE II....... PLUS PHASES II &
III.
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* 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
Chapter
[[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
declaration.
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
materials
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
product.
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-
mail.
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]
BILLING CODE 3410-34-P