40940 Federal Register / Vol. 78, No. 131 / Tuesday, July 9, 2013 / Rules and Regulations 

(8) Administer the records 

management program in support of 

Departmental Management, and prepare 

and coordinate responses to 

management audits by the Inspector 

General and the Government 

Accountability Office, with authority to 

take actions as required by law or 

regulation for the offices and agencies 

reporting to the Assistant Secretary for 

Administration. 

* * * * * 

§ 2.98 [Removed] 

■ 24. Remove § 2.98. 

Subpart Q—Delegations of Authority 

by the General Counsel 

■ 25. Revise § 2.200 to read as follows: 

§ 2.200 Principal Deputy General Counsel. 

Pursuant to § 2.31, the following 

delegation of authority is made by the 

General Counsel to the Principal Deputy 

General Counsel, to be exercised only 

during the absence or unavailability of 

the General Counsel: Perform all duties 

and exercise all powers that are now or 

which may hereafter be delegated to the 

General Counsel. 

■ 26. Amend subpart Q by adding new 

§§ 2.201 and 2.202 to read as follows: 

§ 2.201 Director, Office of Ethics. 

Pursuant to the Office of Government 

Ethics regulations at 5 CFR part 2638, 

the Director, Office of Ethics, shall be 

the USDA Designated Agency Ethics 

Official with the authority to coordinate 

and manage the Department’s ethics 

program as provided in part 2638. 

§ 2.202 Deputy Director, Office of Ethics. 

Pursuant to the Office of Government 

Ethics regulations at 5 CFR part 2638, 

the Deputy Director, Office of Ethics, 

shall be the USDA Alternate Agency 

Ethics Official and shall exercise the 

authority reserved to the USDA 

Designated Agency Ethics Official as 

provided in part 2638 in the absence or 

unavailability of the USDA Designated 

Agency Ethics Official. 

Done at Washington, DC, this 25th day of 

June, 2013. 

Thomas J. Vilsack, 

Secretary of Agriculture. 

[FR Doc. 2013–15849 Filed 7–8–13; 8:45 am] 

BILLING CODE 3410–90–P 

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: Interim final rule. 

SUMMARY: In response to recent 

amendments to the Lacey Act, we are 

establishing definitions for the terms 

‘‘common cultivar’’ and ‘‘common food 

crop’’ and several related terms. 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 exclusions 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 

definitions specify which plants and 

plant products will be excluded from 

the provisions of the Act, including the 

declaration requirement. 

DATES: Effective dates: The addition of 

7 CFR part 357, with the exception of 

the definitions of the terms ‘‘commercial 

scale’’ and ‘‘tree’’ in § 357.2, is effective 

August 8, 2013. The addition of the 

definitions of the terms ‘‘commercial 

scale’’ and ‘‘tree’’ to § 357.2 is effective 

September 9, 2013 unless we take action 

to delay the effective date or to amend 

or withdraw either or both definitions. 

Comment date: We will consider all 

comments on the definitions of the 

terms ‘‘commercial scale’’ and ‘‘tree’’ 

that we receive on or before August 8, 

2013. 

ADDRESSES: You may submit comments 

by either of the following methods: 

• Federal eRulemaking Portal: Go to 

http://www.regulations.gov/ 

#!documentDetail;D=APHIS-2009-0018. 

• Postal Mail/Commercial Delivery: 

Send 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. 

Supporting documents and any 

comments we receive on this docket 

may be viewed at http:// 

www.regulations.gov/ 

#!docketDetail;D=APHIS-2009-0018 or 

in our reading room, which 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) 799–7039 

before coming. 

FOR FURTHER INFORMATION CONTACT: Mr. 

George Balady, Staff Officer, 

Regulations, Permits, and Manuals, 

PPQ, APHIS, 4700 River Road Unit 60, 

Riverdale, MD 20737–1231; (301) 851– 

2240. 

SUPPLEMENTARY INFORMATION: 

I. Executive Summary 

Purpose of the Regulatory Action 

The Food, Conservation, and Energy 

Act of 2008 amended the Lacey Act by 

expanding its protections to a broader 

range of plants and plant products. 

Common cultivars and common food 

crops are among the categorical 

exclusions 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 (USDA) 

and the U.S. Department of the Interior 

(DOI) to define these terms by 

regulation. 

Summary of the Major Provisions of the 

Regulatory Action 

In this rule, we adopt definitions for 

the terms ‘‘common cultivar’’ and 

‘‘common food crop’’ and also, at the 

request of commenters, adopt 

definitions for the related terms 

‘‘artificial selection,’’ ‘‘commercial 

scale,’’ and ‘‘tree.’’ 

Costs and Benefits 

Since the terms ‘‘common cultivar’’ 

and ‘‘common food crop,’’ while not yet 

defined by regulation, were previously 

included in the statute, there should be 

no instances in which an importer will 

be required because of this rule to make 

declarations for commodities that are 

not now being declared. To the extent 

that the rule defines which products are 

excluded from the provisions of the Act, 

it will benefit U.S. importers. By 

defining ‘‘common cultivar’’ and 

‘‘common food crop,’’ the rule will 

facilitate importer understanding of and 

compliance with the Act’s requirements. 

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Federal Register / Vol. 78, No. 131 / Tuesday, July 9, 2013 / Rules and Regulations 40941 

1To view these notices and the comments we 

received, go to http://www.regulations.gov/ 

#!docketDetail;D=APHIS-2008-0119. 

2To view the proposed rule and the comments 

we received, go to http://www.regulations.gov/ 

#!docketDetail;D=APHIS-2009-0018. 

II. 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, among other things, 

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 any 

Federal, State, tribal, or foreign law that 

protects plants or that regulates: the 

theft of plants; the taking of plants from 

a park, forest reserve, or other officially 

protected area; the taking of plants from 

an officially designated area; or the 

taking of plants without, or contrary to, 

required authorization. 

The statute excludes from the 

definition of the term ‘‘plant’’ the 

following categories: (i) Common 

cultivars, except trees, and common 

food crops; (ii) scientific specimens for 

laboratory or field research (unless they 

are 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 (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); and (iii) 

plants that are to remain planted or to 

be planted or replanted (unless they are 

listed in an appendix CITES; as an 

endangered or threatened species under 

the Endangered Species Act of 1973; or 

pursuant to any State law that provides 

for the conservation of species that are 

indigenous to the State and are 

threatened with extinction). 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 

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 1 (74 FR 5911– 

5913 and 74 FR 45415–45418, Docket 

No. APHIS–2008–0119). 

On August 4, 2010, we published in 

the Federal Register (75 FR 46859– 

46861, Docket No. APHIS–2009–0018) a 

proposal 2 to establish a new part in the 

plant-related provisions of title 7, 

chapter III of the Code of Federal 

Regulations (CFR), containing 

definitions for the terms ‘‘common 

cultivar’’ and ‘‘common food crop.’’ 

Common cultivars and common food 

crops are among the categorical 

exclusions to the provisions of the Act. 

The Act does not define the terms 

‘‘common cultivar’’ and ‘‘common food 

crop’’ but instead gives authority to 

USDA and DOI to define these terms by 

regulation. 

We solicited comments concerning 

our proposal for 60 days ending October 

4, 2010. We reopened and extended the 

deadline for comments until November 

29, 2010, in a document published in 

the Federal Register on October 29, 

2010 (75 FR 66699, Docket No. APHIS– 

2009–0018). We received 21 comments 

by that date. They were from domestic 

and foreign industry associations, 

importers, exporters, and 

representatives of State and foreign 

governments. They are discussed below 

by topic. 

One commenter stated that the 

definitions as proposed were too vague 

and that the proposed rule should be 

withdrawn and re-proposed with 

concrete examples of products that 

would be considered common food 

crops or common cultivars. 

We disagree. General definitions, such 

as the ones we proposed, provide 

sufficient guidance to the public 

regarding the scope of the definition 

while allowing us the flexibility 

necessary to adapt to the changing 

nature of international trade. As we 

explained in the proposed rule, we will 

provide guidance in the form of a list of 

taxa within various commodity types 

that would fall within the definitions of 

‘‘common food crop’’ and ‘‘common 

cultivar,’’ but this list is intended to be 

illustrative, not exhaustive. 

Several commenters expressed 

concern that products that might be 

considered both common food crops 

and common cultivars would be put on 

only one list. 

The list of common food crops and 

common cultivars will not be mutually 

exclusive; we recognize that some 

plants may have more than one end use. 

For example, corn (Zea mays) may be 

raised for human food, for animal feed, 

or for conversion into ethanol, but in all 

cases is the same plant and meets the 

definition of both ‘‘common food crop’’ 

and ‘‘common cultivar.’’ 

Many commenters requested that 

particular crops or commodities be 

included on the list of common 

cultivars and common food crops. 

As we explained in the proposed rule, 

the list of common cultivars and 

common food crops are intended to be 

illustrative, not exhaustive. However, 

we have considered all these requests in 

developing the list. The list is available 

on the Animal and Plant Health 

Inspection Service (APHIS) Web site at 

http://www.aphis.usda.gov/ 

plant_health/lacey_act/index.shtml. 

The public may also send inquiries 

about specific taxa or commodities and 

requests to add taxa or commodities to 

the list, or remove them from the list by 

writing to The Lacey Act, ATT: 

Common Cultivar/Common Food Crop, 

c/o U.S. Department of Agriculture, Box 

10, 4700 River Road, Riverdale, MD 

20737 or by email to 

lacey.act.declaration@aphis.usda.gov 

and including the following 

information: 

• Scientific name of the plant (genus, 

species); 

• Common or trade names; 

• Annual trade volume (e.g., cubic 

meters) or weight (e.g., metric tons/ 

kilograms) of the commodity; and 

• Any other information that will 

help us make a determination, such as 

countries or regions where grown, 

estimated number of acres or hectares in 

commercial production, and so on. 

Decisions about which products will 

be included on the list will be made 

jointly by APHIS and the DOI’s Fish and 

Wildlife Service (FWS). 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 Lacey Act Web site 

mentioned above. 

Three commenters stated that APHIS 

and FWS should develop a process by 

which products may be added to or 

removed from the list. 

We agree that stakeholder input on 

the content of the list will be valuable. 

As discussed above, stakeholders may 

contact APHIS with inquiries or 

suggestions for changes to the list. 

Two commenters stated that the list 

should be arranged by Harmonized 

Tariff Schedule (HTS) chapters and 

include entire tariff codes. 

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40942 Federal Register / Vol. 78, No. 131 / Tuesday, July 9, 2013 / Rules and Regulations 

We do not believe that basing the list 

of common food crops and common 

cultivars on HTS codes would be 

practical. Tariff codes do not always 

describe processed products in 

sufficient detail to distinguish between 

products. For example, the chapter 

covering umbrellas and umbrella parts 

does not distinguish between umbrellas 

with aluminum or steel shafts and those 

with wooden shafts. Furthermore, HTS 

codes may change, and as a result, 

arranging the list by the codes could 

result in confusion regarding which 

products are subject to the requirements 

of the Act and which are excluded. 

One commenter stated that APHIS 

should make it clear that the definitions 

are intended to apply to excluded 

classes of food crops and cultivars, but 

not apply to specific shipments. 

The definitions refer only to plants. 

Therefore, we do not believe any 

changes are necessary to clarify that 

these terms 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. 

Three commenters stated that 

plantation-raised trees and trees 

harvested from sustainable forests 

should be included in the definitions of 

common food crops and common 

cultivars. 

The Act states specifically that the 

term ‘‘common cultivar’’ does not 

include trees, and trees are not common 

food crops. For these reasons we cannot 

include plantation-raised trees or those 

harvested from sustainable forests in the 

definitions of common food crops and 

common cultivars. 

Two commenters asked whether 

certain products that are common but 

do not qualify as either common 

cultivars or common food crops will be 

subject to the declaration requirement. 

These include products such as wild 

spices and seaweed, as well as maple 

syrup, rubber, and latex products 

derived from trees that do not require 

that the tree be cut down. We plan to 

address specific concerns about nontimber derivatives of living trees in a 

future action. We also expect that the 

guidance provided by the list should 

reduce confusion as to what is excluded 

and what is not. As we noted above, the 

public can send inquiries about specific 

taxa or commodities and requests to add 

taxa or commodities to the list to 

APHIS. 

One of the proposed requirements for 

a plant to be classified as a common 

cultivar is that it has been developed 

‘‘through selective breeding or other 

means’’ for specific traits. Several 

commenters stated that the phrase 

‘‘through selective breeding or other 

means’’ is unclear and asked for 

clarification. 

The phrase ‘‘selective breeding or 

other means’’ was intended to include 

plants selected or hybridized in the 

traditional way as well as plants 

selected by cloning or developed 

through genetic modification. We agree 

with the commenters that the phrase 

was not clear and have replaced the 

phrase with ‘‘through artificial 

selection’’ in the definition. This rule 

also defines artificial selection as ‘‘the 

process of selecting plants for particular 

traits, through such means as breeding, 

cloning, or genetic modification.’’ 

A proposed requirement for plants to 

be classified as either common food 

crops or common cultivars is that they 

are a ‘‘species or hybrid that is 

cultivated on a commercial scale.’’ One 

commenter suggested that both 

definitions be revised to remove the 

phrase ‘‘species or hybrid that is 

cultivated . . .’’ because it is unclear. 

The commenter suggested rephrasing 

the definitions to read ‘‘is a species or 

hybrid, or a selection thereof, that is 

cultivated . . .;’’ because many crop 

plants are selections of species rather 

than the wild-type plant, or are 

selections of a hybrid rather than the 

original cross. The commenter stated 

that this change would eliminate 

ambiguity. 

We agree with the commenter and 

have made this revision to both 

definitions. 

Consistent with the provisions of the 

Act, both definitions refer to plants in 

general. One commenter suggested that 

both definitions be revised to refer to ‘‘a 

plant, or any part of a plant’’ to clarify 

that roots, seeds, and other parts or 

products of a plant are included in the 

definitions. 

The Act includes roots, seeds, parts, 

or products in the definition of plant, 

and we also proposed to include a 

definition of ‘‘plant’’ consistent with the 

definition in the Act to the regulations. 

Therefore, we do not believe it is 

necessary to specify that plant parts are 

included in the definitions of common 

food crops and common cultivars. 

A proposed requirement for a plant to 

be classified as a common food crop is 

that it be ‘‘raised, grown, or cultivated 

for human or animal consumption.’’ 

Two commenters suggested that the 

definition for common food crop be 

revised to read ‘‘raised, grown, or 

cultivated primarily for human or 

animal consumption’’ to avoid imposing 

an overly broad end-use requirement. 

While we agree with the commenters 

that imposing specific end-use 

requirements would be undesirable, as 

we explained above, we do not consider 

‘‘common food crops’’ and ‘‘common 

cultivars’’ to be mutually exclusive 

categories. A common cultivar not 

intended for human or animal 

consumption would still be excluded 

from the provisions of the Act. 

One commenter expressed concern 

that the definition of ‘‘common 

cultivar’’ could be problematic for the 

seed trade industry. The commenter 

stated that some seed companies 

routinely work with organizations such 

as botanical gardens to bring new flower 

seeds to market. These seeds may be 

selected for existing characteristics but 

were not part of a selective breeding 

process. 

As we noted above, the definition of 

‘‘plant’’ in the Act includes seeds. The 

Act further specifies that plants that are 

to remain planted or to be planted or 

replanted are excluded from the 

provisions of the Act, unless they are 

listed in a CITES appendix; as an 

endangered or threatened species under 

the Endangered Species Act of 1973; or 

pursuant to any State law that provides 

for the conservation of species that are 

indigenous to the State and are 

threatened with extinction. Therefore, 

seeds for planting are excluded from the 

provisions of the Act unless they are 

listed in the CITES Appendices, are 

listed as endangered or threatened 

under the Endangered Species Act, or 

are protected under State law. 

One commenter asked for clarification 

in regard to how precommercial seed 

will be considered under the 

regulations. The commenter cited seeds 

for research, breeding, and foundation 

programs as specific examples. 

Scientific specimens of plant genetic 

material, including roots, seeds, 

germplasm, parts, or products thereof, 

like the plants for planting described 

above, are excluded from the provisions 

of the Act. 

Two commenters expressed concern 

that the definitions as proposed would 

not cover maricultural products, such as 

carrageenan, that are derived from 

harvested seaweeds and may not fall 

under the traditional meaning of 

‘‘cultivated.’’ One of these commenters 

suggested revising the definitions to 

read ‘‘raised, grown, harvested, or 

cultivated.’’ 

The provisions of the Act do not 

distinguish between terrestrial and 

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Federal Register / Vol. 78, No. 131 / Tuesday, July 9, 2013 / Rules and Regulations 40943 

3To view the advance notice of proposed 

rulemaking and the comments we received, go to 

http://www.regulations.gov/#!docketDetail;D=

APHIS-2010-0129. 

aquatic plants. Many maricultural 

products are cultivated on a commercial 

scale on seaweed farms; however, some 

are collected from the wild. While these 

wild-collected seaweeds may not 

necessarily be of conservation concern, 

the laws and conditions under which 

they are gathered may vary. For this 

reason, adopting the commenter’s 

suggestion would not be consistent with 

the provisions of the Act. 

One commenter stated that APHIS 

and FWS should specify a threshold, 

based on quantity or value of plant 

material of the product, below which 

the declaration requirement (as distinct 

from the substantive provision of the 

Act) would not apply. 

We have received similar requests in 

response to our earlier notices. We note 

that on June 30, 2011, we published in 

the Federal Register (76 FR 38330– 

38332, Docket No. APHIS–2010–0129) 

an advance notice of proposed 

rulemaking 3 in which we discussed the 

possibility of establishing such a 

threshold related to the declaration 

requirement. In contrast, the current 

rulemaking deals with exclusions from 

the entire Act, not just exemptions from 

the declaration requirement. 

One commenter asked that sufficient 

notice be given to importers when 

implementing final regulations. The 

commenter suggested that 2 years would 

be an appropriate minimum phase-in 

period for Lacey Act-related regulations. 

APHIS will attempt to provide 

sufficient notice of the effective dates of 

this and any future regulations. How 

much lead time is sufficient when 

implementing regulations may vary; for 

example, regulations that relieve 

restrictions are often made effective 

upon publication or a short time after 

publication, while implementing 

regulations that impose restrictions may 

require more time. 

One commenter stated that APHIS 

should clarify that primary 

responsibility for compliance with the 

declaration requirement lies with the 

individual to whom the products are 

shipped, not the Customs and Border 

Protection importer of record. 

Our current guidance already 

specifies that the responsibility lies with 

the importer of record, who may be a 

business, a broker, or a private courier. 

We note that most shipments brought in 

by private couriers fall below the 

threshold for formal entry and therefore 

are not currently subject to enforcement 

of the declaration requirement 

Several commenters asked that APHIS 

provide guidance on compliance with 

the Act. 

APHIS does provide guidance on our 

Web site at http://www.aphis.usda.gov/ 

plant_health/lacey_act/index.shtml, but 

we will take these requests into 

consideration and develop additional 

guidance if needed. 

Several commenters requested that we 

consider additional exclusions that 

would not be consistent with the plantrelated provisions of the Act. These 

included requests to provide exclusions 

for: plants that have previously been 

imported into the United States, or were 

exported and then re-imported; highly 

manufactured products that may 

contain plant products that were 

introduced before the manufacture or 

import of the final product; or whole 

classes of commodities, such as 

hydrocolloidal products. As we 

explained above, we published an 

advance notice of proposed rulemaking 

in which we discussed not only the 

possibility of establishing a de minimis 

threshold for the declaration 

requirement, but also how importers 

may comply with the declaration 

requirement when importing composite 

plant materials, and how to 

accommodate products made of re-used 

plant materials, or plant materials 

harvested or manufactured prior to the 

2008 Lacey Act amendments. We plan 

to address these questions in a future 

action. 

Additional Definitions 

The comments we received on the 

proposed rule included concerns about 

two additional terms used in the 

regulations. Specifically, some 

commenters stated that the phrase 

‘‘commercial scale’’ should be removed 

from the definitions of ‘‘common 

cultivar’’ and ‘‘common food crop’’ 

because it implies a sizeable market 

rather than a viable one, and would 

unfairly impact small industries. Other 

commenters asked that we define 

‘‘commercial scale’’ to clarify that the 

definitions apply to specialty products 

grown commercially on a smaller scale. 

One commenter also asked that we 

define the word ‘‘tree’’ as it is used in 

the regulations. The commenter noted 

that there is no globally accepted 

botanical definition for ‘‘tree’’ and 

stated that adding a definition to the 

regulations would help clarify which 

products require a declaration. 

As we explained in the proposed rule, 

the definitions are designed to ensure 

that the exclusions do not place at risk 

plants of conservation concern. 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 exclusion 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. We agree, however, that a 

definition of ‘‘commercial scale’’ would 

improve clarity. 

Therefore, we are proposing to define 

‘‘commercial scale’’ as ‘‘production, in 

individual products or markets, that is 

typical of commercial activity, 

regardless of the production methods or 

amount of production of a particular 

facility.’’ As we explained above, the 

determination of whether a plant falls 

within these definitions is not made at 

the shipment or facility level, but 

applies to the entire species or hybrid of 

plant. 

We also agree that a definition of 

‘‘tree’’ would clarify which products 

require a declaration. We propose to 

define ‘‘tree’’ as ‘‘a woody perennial 

plant that has a well-defined stem or 

stems and a continuous cambium, and 

that exhibits true secondary growth.’’ 

This definition is intended to be 

consistent with common dictionary and 

botanical definitions. We note that this 

definition includes plants which may, 

in a natural state, [demonstrate] low 

height and/or multiple stems, as well as 

tall, single-stemmed plants. 

We invite public comment on these 

two definitions. 

Miscellaneous Change 

Paragraph (1) of the definition for 

‘‘common food crop’’ requires that the 

plant ‘‘has been ‘‘raised, grown, or 

cultivated for human or animal 

consumption.’’ Paragraph (2) of the 

definitions of both ‘‘common food crop’’ 

and ‘‘common cultivar’’ requires that 

they be ‘‘cultivated on a commercial 

scale.’’ After consideration, we believe 

that, since the scope of paragraph (1) in 

the definition of ‘‘common food crop’’ 

covers plants ‘‘raised, grown, or 

cultivated,’’ the requirement in 

paragraph (2) that the plant must be 

‘‘cultivated’’ is overly limiting. 

Therefore, we have revised paragraph 

(2) of the ‘‘common food crop’’ 

definition to require that the plants be 

‘‘produced on a commercial scale’’ 

instead. We have also made the same 

revision to paragraph (2) of the 

‘‘common cultivar’’ definition in order 

to be consistent between both 

definitions. 

Therefore, for the reasons given in the 

proposed rule and in this document, we 

are adopting the proposed rule as a final 

rule, with the changes discussed in this 

document. 

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40944 Federal Register / Vol. 78, No. 131 / Tuesday, July 9, 2013 / Rules and Regulations 

Executive Orders 12866 and 13563 and 

Regulatory Flexibility Act 

This 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. 

We have prepared an economic 

analysis for this rule. The economic 

analysis provides a cost-benefit analysis, 

as required by Executive Orders 12866 

and 13563, which direct agencies to 

assess all costs and benefits of available 

regulatory alternatives and, if regulation 

is necessary, to select regulatory 

approaches that maximize net benefits 

(including potential economic, 

environmental, public health and safety 

effects, and equity). Executive Order 

13563 emphasizes the importance of 

quantifying both costs and benefits, of 

reducing costs, of harmonizing rules, 

and of promoting flexibility. The 

economic analysis also examines the 

potential economic effects of this rule 

on small entities, as required by the 

Regulatory Flexibility Act. The 

economic 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). 

‘‘Common cultivar’’ and ‘‘common 

food crop’’ are defined in this rule to 

ensure that the exclusions 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 

importers will be required because of 

this rule to take actions they are not 

currently taking. In other words, the 

definitions presented in this rule and 

the related exclusions will 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 excluded under the 

definitions in this rule. 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 not making 

these declarations alone will be between 

$1 million and $3 million. 

Implementation of the declaration 

requirement for all plants, including 

common food crops and common 

cultivars, would cover far more product 

categories than those that currently 

require a declaration. 

To the extent that the rule defines 

which products are excluded from the 

provisions of the Act, it will benefit U.S. 

importers, large and small. By defining 

the terms ‘‘common cultivar’’ and 

‘‘common food crop,’’ the rule will 

facilitate importer understanding of and 

compliance with the Act’s requirements. 

Executive Order 12988 

This rule has been reviewed under 

Executive Order 12988, Civil Justice 

Reform. This rule: (1) Preempts all State 

and local laws and regulations that are 

inconsistent with this rule; (2) has no 

retroactive effect; and (3) does not 

require administrative proceedings 

before parties may file suit in court 

challenging this rule. 

Executive Order 13175 

This rule has been reviewed in 

accordance with the requirements of 

Executive Order 13175, Consultation 

and Coordination with Indian Tribal 

Governments. The review reveals that 

this regulation will not have substantial 

and direct effects on Tribal governments 

and will not have significant Tribal 

implications. If a request is made for 

consultation once the rule has been 

implemented, APHIS will work with the 

Tribe(s) to conduct a consultation 

session. 

Paperwork Reduction Act 

This 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 amending Title 7, 

subtitle B, chapter III, of the Code of 

Federal Regulations by adding part 357 

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). 

§ 357.1 Purpose and scope. 

The Lacey Act, as amended (16 U.S.C. 

3371 et seq.), makes it unlawful to, 

among other things, 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 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 plants and plant products. Common 

cultivars (except trees) and common 

food crops are among the categorical 

exclusions 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. 

§ 357.2 Definitions. 

Artificial selection. The process of 

selecting plants for particular traits, 

through such means as breeding, 

cloning, or genetic modification. 

Commercial scale. Production, in 

individual products or markets, that is 

typical of commercial activity, 

regardless of the production methods or 

amount of production of a particular 

facility or the purpose of an individual 

shipment. 

Common cultivar. A plant (except a 

tree) that: 

(1) Has been developed through 

artificial selection for specific 

morphological or physiological 

characteristics; and 

(2) Is a species or hybrid, or a 

selection thereof, that is produced on a 

commercial scale; and 

(3) Is not listed: 

(i) In an appendix to the Convention 

on International Trade in Endangered 

Species of Wild Fauna and Flora (27 

UST 1087; TIAS 8249); 

(ii) As an endangered or threatened 

species under the Endangered Species 

Act of 1973 (16 U.S.C. 1531 et seq.); or 

(iii) 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: 

(1) Is raised, grown, or cultivated for 

human or animal consumption; and 

(2) Is a species or hybrid, or a 

selection thereof, that is produced on a 

commercial scale; and 

(3) Is not listed: 

(i) In an appendix to the Convention 

on International Trade in Endangered 

Species of Wild Fauna and Flora (27 

UST 1087; TIAS 8249); 

(ii) As an endangered or threatened 

species under the Endangered Species 

Act of 1973 (16 U.S.C. 1531 et seq.); or 

(iii) Pursuant to any State law that 

provides for the conservation of species 

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Federal Register / Vol. 78, No. 131 / Tuesday, July 9, 2013 / Rules and Regulations 40945 

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. 

Tree. A woody perennial plant that 

has a well-defined stem or stems and a 

continuous cambium, and that exhibits 

true secondary growth. 

Done in Washington, DC, this 27th day of 

June 2013. 

Max Holtzman, 

Acting Deputy Under Secretary for Marketing 

and Regulatory Programs. 

[FR Doc. 2013–16463 Filed 7–8–13; 8:45 am] 

BILLING CODE 3410–34–P 

DEPARTMENT OF ENERGY 

10 CFR Part 433 

[Docket No. EERE–2011–BT–STD–0055] 

RIN 1904–AC60 

Energy Efficiency Design Standards 

for New Federal Commercial and MultiFamily High-Rise Residential Buildings 

AGENCY: Office of Energy Efficiency and 

Renewable Energy, Department of 

Energy. 

ACTION: Final rule. 

SUMMARY: The U.S. Department of 

Energy (DOE) is publishing this final 

rule to implement provisions in the 

Energy Conservation and Production 

Act (ECPA) that require DOE to update 

the baseline Federal energy efficiency 

performance standards for the 

construction of new Federal commercial 

and multi-family high-rise residential 

buildings. This rule updates the 

baseline Federal commercial standard to 

the American Society of Heating, 

Refrigerating, and Air-Conditioning 

Engineers (ASHRAE) Standard 90.1– 

2010. 

DATES: This rule is effective September 

9, 2013. The incorporation by reference 

of certain publications in the rule is 

approved by the Director of the Federal 

Register as of September 9, 2013. 

ADDRESSES: This rulemaking can be 

identified by docket number EERE– 

2011–BT–STD–0055 and/or RIN number 

1904–AC60. 

Docket: The docket is available for 

review at http://www.regulations.gov 

including Federal Register Notices, 

public meeting attendee lists, 

transcripts, comments and other 

supporting documents/materials. All 

documents in the docket are listed in 

the http://www.regulations.gov index. 

However, not all documents listed in 

the index may be publicly available, 

such as information that is exempt from 

public disclosure. 

For further information on how to 

review public comments or review hard 

copies of the docket in the resource 

room, contact Ms. Brenda Edwards at 

(202) 586–2945 or email 

Brenda.Edwards@ee.doe.gov. 

FOR FURTHER INFORMATION CONTACT: Mr. 

Mohammed Khan, U.S. Department of 

Energy, Office of Energy Efficiency and 

Renewable Energy, Building 

Technologies Program, Mailstop EE–2J, 

1000 Independence Avenue SW., 

Washington, DC 20585, (202) 586–7892, 

email: Mohammed.Khan@ee.doe.gov, or 

Ms. Ami Grace-Tardy Esq., U.S. 

Department of Energy, Office of the 

General Counsel, Forrestal Building, 

GC–71, 1000 Independence Avenue 

SW., Washington, DC 20585, (202) 586– 

5709, email: Ami.GraceTardy@hq.doe.gov. 

SUPPLEMENTARY INFORMATION: This 

rulemaking incorporates by reference 

the following standard into 10 CFR Part 

433: 

• ANSI/ASHRAE/IESNA Standard 

90.1–2010, Energy Standard for 

Buildings Except Low-Rise Residential 

Buildings, I–P Edition, Copyright 2010. 

Copies of this standard are available 

from the American Society of Heating 

Refrigerating and Air-Conditioning 

Engineers, Inc., 1791 Tullie Circle, NE., 

Atlanta, GA 30329, (404) 636–8400, 

http://www.ashrae.org. 

Also, a copy of this standard is 

available for inspection at U.S. 

Department of Energy (DOE), Office of 

Energy Efficiency and Renewable 

Energy, Building Technologies Program, 

6th Floor, 950 L’Enfant Plaza, SW., 

Washington, DC 20024. For information 

on the availability of this standard at 

DOE, contact Ms. Brenda Edwards at 

(202) 586–2945 or email 

Brenda.Edwards@ee.doe.gov. 

I. Introduction 

II. Executive Summary 

III. Discussion of Today’s Action 

IV. Compliance Date 

V. Reference Resources 

VI. Regulatory Analysis 

VII. Congressional Notification 

I. Introduction 

Section 305 of the Energy 

Conservation and Production Act 

(ECPA), as amended, requires DOE to 

establish building energy efficiency 

standards for all new Federal buildings. 

(42 U.S.C. 6834(a)(1)) The standards 

established under section 305(a)(1) of 

ECPA must contain energy efficiency 

measures that are technologically 

feasible, economically justified, and 

meet the energy efficiency levels in the 

applicable voluntary consensus energy 

codes specified in section 305. (42 

U.S.C. 6834(a)(1)–(3)) 

Under section 305 of ECPA, the 

referenced voluntary consensus code for 

commercial buildings (including multifamily high rise residential buildings) is 

the American Society of Heating, 

Refrigerating, and Air-Conditioning 

Engineers (ASHRAE) Standard 90.1 and 

the referenced code for low-rise 

residential buildings is the International 

Energy Conservation Code (IECC). (42 

U.S.C. 6834(a)(2)(A)) DOE codified these 

referenced codes as baseline Federal 

building standards into energy 

efficiency standards in 10 CFR parts 

433, 434, and 435. Also under section 

305 of ECPA, DOE must establish, by 

rule, revised Federal building energy 

efficiency performance standards for 

new Federal buildings that require such 

buildings be designed to achieve energy 

consumption levels that are at least 30 

percent below the levels established in 

the referenced codes (baseline Federal 

building standards), if life-cycle costeffective. (42 U.S.C. 6834(a)(3)(A)(i)(I)) 

Under section 305 of ECPA, not later 

than one year after the date of approval 

of each subsequent revision of the 

ASHRAE Standard or the IECC, DOE 

must determine whether to amend the 

baseline Federal building standards 

with the revised voluntary standard 

based on the cost-effectiveness of the 

revised voluntary standard. (42 U.S.C. 

6834(a)(3)(B)) It is this requirement that 

today’s rulemaking addresses. ASHRAE 

Standard 90.1 has been updated from 

the version currently referenced in 

DOE’s regulations at 10 CFR part 433. 

DOE is now revising the latest baseline 

Federal building standard for 10 CFR 

part 433 from ASHRAE Standard 90.1– 

2007 to ASHRAE Standard 90.1–2010. 

Section 306(a) of ECPA provides that 

each Federal agency and the Architect 

of the Capitol must adopt procedures to 

ensure that new Federal buildings will 

meet or exceed the Federal building 

energy efficiency standards established 

under section 305. (42 U.S.C. 6835(a)) 

Section 306(b) bars the head of a Federal 

agency from expending Federal funds 

for the construction of a new Federal 

building unless the building meets or 

exceeds the applicable baseline Federal 

building energy standards established 

under section 305. (42 U.S.C. 6835(b)) 

This includes both the requirement that 

all new Federal buildings comply with 

the baseline standards in ASHRAE 

Standard 90.1 and the IECC and the 

requirement that new Federal buildings 

achieve energy consumption levels at 

least 30 percent below these minimum 

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