[Federal Register Volume 75, Number 149 (Wednesday, August 4, 2010)]
[Proposed Rules]
[Pages 46859-46861]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2010-19098]
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Proposed Rules
Federal Register
________________________________________________________________________
This section of the FEDERAL REGISTER contains notices to the public of
the proposed issuance of rules and regulations. The purpose of these
notices is to give interested persons an opportunity to participate in
the rule making prior to the adoption of the final rules.
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Federal Register / Vol. 75, No. 149 / Wednesday, August 4, 2010 /
Proposed Rules
[[Page 46859]]
DEPARTMENT OF AGRICULTURE
Animal and Plant Health Inspection Service
7 CFR Part 357
[Docket No. APHIS-2009-0018]
RIN 0579-AD11
Lacey Act Implementation Plan; Definitions for Exempt and
Regulated Articles
AGENCY: Animal and Plant Health Inspection Service, USDA.
ACTION: Proposed rule.
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SUMMARY: In response to recent amendments to the Lacey Act, we are
proposing to establish definitions for the terms ``common cultivar''
and ``common food crop.'' The amendments to the Act expanded its
protections to a broader range of plant species, extended its reach to
encompass products, including timber, that derive from illegally
harvested plants, and require that importers submit a declaration at
the time of importation for certain plants and plant products. Common
cultivars and common food crops are among the categorical exemptions to
the provisions of the Act. The Act does not define the terms ``common
cultivar'' and ``common food crop'' but instead gives authority to the
U.S. Department of Agriculture and the U.S. Department of the Interior
to define these terms by regulation. Our proposed definitions would
specify which plants and plant products will be subject to the
provisions of the Act, including the declaration requirement.
DATES: We will consider all comments that we receive on or before
October 4, 2010.
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-2009-0018) 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-2009-0018, 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-2009-0018.
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. George Balady, Senior Staff
Officer, Quarantine Policy Analysis and Support, PPQ, APHIS, 4700 River
Road Unit 60, Riverdale, MD 20737-1231; (301) 734-8295.
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, and plants. The Food, Conservation, and Energy Act of
2008, effective May 22, 2008, amended the Lacey Act by expanding its
protections 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 any Federal, State,
tribal, or 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, makes it
unlawful, beginning December 15, 2008, 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
which the plant was harvested. Currently, enforcement of the
declaration requirement is being phased in, as described in two notices
we published in the Federal Register (74 FR 5911-5913 and 74 FR 45415-
45418, Docket No. APHIS-2008-0119).
Under the Act, ``Plant'' means: ``Any wild member of the plant
kingdom, including roots, seeds, parts or products thereof, and
including trees from either natural or planted forest stands.'' There
are three categories of plants that are exempt from the provisions of
the Act:
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 to the Lacey Act, 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 (CITES, 27 UST 1087; TIAS
8249);
As an endangered or threatened species under the
Endangered Species Act of 1973 (ESA, 16 U.S.C. 1531 et seq.); or
Pursuant to any State law that provides for the
conservation of species that are indigenous to the State and are
threatened with extinction.
Purpose and Scope
The U.S. Department of Agriculture (USDA) and the U.S. Department
of the Interior (DOI) have been given authority under the Lacey Act to
define the terms ``common cultivar'' and ``common food crop.'' In
accordance with this authority, USDA's Animal and Plant Health
Inspection Service (APHIS) and DOI's U.S. Fish and Wildlife Service
(FWS) have developed definitions for those terms. We propose to
establish a new part in the plant-related provisions of title 7,
chapter III of the Code of Federal Regulations (CFR), which will
contain these definitions.
[[Page 46860]]
The definitions, which are discussed below, are designed to ensure
that the exemptions do not place at risk plants of conservation
concern. Species of plants listed as endangered or threatened under the
Endangered Species Act, listed in the CITES Appendices, or protected
under State law are excluded from exemption because they are, for
purposes of the Lacey Act, not common. However, the fact that a plant
is not listed as endangered or threatened does not mean that it is
necessarily a common one. In order to ensure that the exemption from
the provisions of the Act applies only to plants that are common food
crops or cultivars, the definitions are limited to plants of species
grown on a commercial scale.
As we propose to define them, these terms would apply to the entire
species or hybrid of plant; the determination of whether a plant falls
within these definitions is not made at the shipment or facility level.
For example, bananas are a common food crop because bananas in general
meet the definition of a common food crop. It is not necessary to
determine whether specimens of bananas in a particular shipment or from
a particular facility meet the definition. The definition for ``common
cultivar'' is consistent with the definition of ``cultivar'' contained
in 50 CFR 23.5 (the CITES regulations promulgated by FWS). The
definition for ``common food crop'' was developed with consideration
of, and is consistent with, common dictionary definitions and terms in
commercial use.
Definitions
We propose to define the terms ``common cultivar'' and ``common
food crop'' as follows:
Common cultivar. A plant (except a tree) that:
(a) Has been developed through selective breeding or other means
for specific morphological or physiological characteristics; and
(b) Is a species or hybrid that is cultivated on a commercial
scale; and
(c) Is not listed:
(1) In an appendix to the Convention on International Trade in
Endangered Species of Wild Fauna and Flora (27 UST 1087; TIAS 8249);
(2) As an endangered or threatened species under the Endangered
Species Act of 1973 (16 U.S.C. 1531 et seq.); or
(3) Pursuant to any State law that provides for the conservation of
species that are indigenous to the State and are threatened with
extinction.
Common food crop. A plant that:
(a) Has been raised, grown, or cultivated for human or animal
consumption, and
(b) Is a species or hybrid that is cultivated on a commercial
scale; and
(c) Is not listed:
(1) In an appendix to the Convention on International Trade in
Endangered Species of Wild Fauna and Flora (27 UST 1087; TIAS 8249);
(2) As an endangered or threatened species under the Endangered
Species Act of 1973 (16 U.S.C. 1531 et seq.); or
(3) Pursuant to any State law that provides for the conservation of
species that are indigenous to the State and are threatened with
extinction.
In addition, we propose to add a definition for ``plant''
consistent with the definition in the Act, to read as follows: ``Any
wild member of the plant kingdom, including roots, seeds, parts or
products thereof, and including trees from either natural or planted
forest stands.''
As we explained above, these definitions are designed to ensure
that the exemptions do not place at risk plants of conservation
concern, while exempting plants grown on a commercial scale. They are
also designed to be consistent with existing and commonly understood
definitions of the terms, as well as to be consistent with the
provisions of the Lacey Act.
To supplement these definitions, we will provide guidance in the
form of a list of examples of plant taxa or commodities that qualify
for exemption from the provisions of the Act as common cultivars and
common food crops. USDA and DOI will develop and maintain this list on
a Web site and update it when necessary. We will inform our
stakeholders when the list is updated via email and other electronic
media. We will also note updates of the list on APHIS's Web site. This
list will not be exhaustive, but we will provide an email address to
which the public can send inquiries about specific taxa or commodities
and request to add taxa or commodities to the list.
Executive Order 12866 and Regulatory Flexibility Act
This proposed rule 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.
In accordance with the Regulatory Flexibility Act, we have analyzed
the potential economic effects of this action on small entities. The
analysis is summarized below. Copies of the full analysis are available
by contacting the person listed under FOR FURTHER INFORMATION CONTACT
or on the Regulations.gov Web site (see ADDRESSES above for
instructions for accessing Regulations.gov).
Recent amendments to the Lacey Act expanded its protections to a
broader range of plant species, extended its reach to encompass
products, including timber, that derive from illegally harvested
plants, and require that importers submit a declaration at the time of
importation for certain plants and plant products. Common cultivars and
common food crops are among the categorical exemptions to the
provisions of the Act. The Act does not define the terms ``common
cultivar'' or ``common food crop,'' but instead gives authority to the
USDA and the DOI to define these terms by regulation. This proposed
rule provides these definitions.
To the extent that the proposed rule defines which products are
exempted from the provisions of the Act, it would benefit U.S.
importers, large and small. By defining the terms ``common cultivar''
and ``common food crop,'' the proposed rule would facilitate importer
understanding of and compliance with the Act's requirements.
``Common cultivar'' and ``common food crop'' are defined in this
proposed rule to ensure that the exemptions do not place at risk plants
of conservation concern. The definitions are also consistent with the
terms' existing and commonly understood definitions. Since the terms
have not previously been defined, there should be no instances in which
an importer would be required because of this rule to make declarations
for commodities that are not now being declared. In other words, the
definitions presented in this rule and the related exemptions should
not result in additional costs for importers based on their current
activities. On the other hand, APHIS has estimated that about 5 percent
of declarations being made under the current stage of phased in
enforcement of the Act are either for common cultivars or common food
crops that would be exempted under the proposed definitions. The costs
incurred in making these declarations are a measure of the expected
benefits of the rule. We estimate the total annual cost savings
associated with these declarations alone would be between $900,000 and
$2.8 million. Note that the full implementation of the declaration
requirement would cover far more product categories than currently
require a declaration.
Executive Order 12988
This proposed rule has been reviewed under Executive Order 12988,
Civil Justice Reform. If this proposed rule is adopted: (1) All State
and local laws and
[[Page 46861]]
regulations that are inconsistent with this rule will be preempted; (2)
no retroactive effect will be given to this rule; and (3)
administrative proceedings will not be required before parties may file
suit in court challenging this rule.
Paperwork Reduction Act
This proposed rule contains no new information collection or
recordkeeping requirements under the Paperwork Reduction Act of 1995
(44 U.S.C. 3501 et seq.).
List of Subjects in 7 CFR Part 357
Endangered and threatened species, Plants (Agriculture).
Accordingly, we are proposing to amend Title 7, subtitle B, chapter
III, of the Code of Federal Regulations as follows:
1. A new part 357 is added to read as follows:
PART 357--CONTROL OF ILLEGALLY TAKEN PLANTS
Sec.
357.1 Purpose and scope.
357.2 Definitions.
Authority: 16 U.S.C. 3371 et seq.; 7 CFR 2.22, 2.80, and
371.2(d).
Sec. 357.1 Purpose and scope.
The Lacey Act, as amended (16 U.S.C. 3371 et seq.), 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 any Federal, State, tribal, or
foreign law that protects plants. The Lacey Act also 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, the Act
requires that importers submit a declaration at the time of importation
for certain plants and plant products. Common cultivars and common food
crops are among the categorical exemptions to the provisions of the
Act. The Act does not define the terms ``common cultivar'' and ``common
food crop'' but instead gives authority to the U.S. Department of
Agriculture and the U.S. Department of the Interior to define these
terms by regulation. The regulations in this part provide the required
definitions.
Sec. 357.2 Definitions.
Common cultivar. A plant (except a tree) that:
(a) Has been developed through selective breeding or other means
for specific morphological or physiological characteristics; and
(b) Is a species or hybrid that is cultivated on a commercial
scale; and
(c) Is not listed:
(1) In an appendix to the Convention on International Trade in
Endangered Species of Wild Fauna and Flora (27 UST 1087; TIAS 8249);
(2) As an endangered or threatened species under the Endangered
Species Act of 1973 (16 U.S.C. 1531 et seq.); or
(3) Pursuant to any State law that provides for the conservation of
species that are indigenous to the State and are threatened with
extinction.
Common food crop. A plant that:
(a) Has been raised, grown, or cultivated for human or animal
consumption; and
(b) Is a species or hybrid that is cultivated on a commercial
scale; and
(c) Is not listed:
(1) In an appendix to the Convention on International Trade in
Endangered Species of Wild Fauna and Flora (27 UST 1087; TIAS 8249);
(2) As an endangered or threatened species under the Endangered
Species Act of 1973 (16 U.S.C. 1531 et seq.); or
(3) Pursuant to any State law that provides for the conservation of
species that are indigenous to the State and are threatened with
extinction.
Plant. Any wild member of the plant kingdom, including roots,
seeds, parts or products thereof, and including trees from either
natural or planted forest stands.
Done in Washington, DC, this 26\th\ day of July 2010.
Ann Wright,
Acting Under Secretary for Marketing and Regulatory Programs.
[FR Doc. 2010-19098 Filed 8-3-10; 8:45 am]
BILLING CODE 3410-34-S