38330 Federal Register / Vol. 76, No. 126 / Thursday, June 30, 2011 / Proposed Rules 

retrospective review of rules is an 

important part of the regulatory process 

as long as it does not impose additional 

burdens to the agency and to the public. 

I urge the Commission as we move 

forward with finalizing rules to consider 

the goals of the Executive Orders. 

[FR Doc. 2011–16430 Filed 6–29–11; 8:45 am] 

BILLING CODE 6351–01–P 

DEPARTMENT OF AGRICULTURE 

Animal and Plant Health Inspection 

Service 

7 CFR Part 357 

[Docket No. APHIS–2010–0129] 

RIN 0579–AD44 

Implementation of Revised Lacey Act 

Provisions 

AGENCY: Animal and Plant Health 

Inspection Service, USDA. 

ACTION: Advance notice of proposed 

rulemaking. 

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. We are soliciting 

public comment on regulatory options 

that could address certain issues that 

have arisen with the implementation of 

the declaration requirement. These 

options include establishing certain 

exceptions to the declaration 

requirement and modifying the 

Declaration Form PPQ 505 to simplify 

the collection of information. 

DATES: We will consider all comments 

that we receive on or before August 29, 

2011. 

ADDRESSES: You may submit comments 

by either of the following methods: 

• Federal eRulemaking Portal: Go to 

http://www.regulations.gov/ 

#!documentDetail;D=APHIS-2010-0129- 

0001. 

• Postal Mail/Commercial Delivery: 

Send your comment to Docket No. 

APHIS–2010–0129, 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-2010-0129 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) 690–2817 

before coming. 

FOR FURTHER INFORMATION CONTACT: Mr. 

George Balady, Staff Officer, Quarantine 

Policy, Analysis and Support, PPQ, 

APHIS, 4700 River Road Unit 60, 

Riverdale, MD 20737–1231; (301) 734– 

5783. 

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). 

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, possessed, transported, or sold in 

violation of the laws of the United 

States, a State, an Indian tribe, or any 

foreign law that protects plants. The 

Lacey Act also now makes it unlawful 

to make or submit any false record, 

account, or label for, or any false 

identification of, any plant. 

In addition, Section 3 of the Lacey 

Act, as amended, makes it unlawful, 

beginning December 15, 2008, to import 

certain plants, including plant products, 

without an import declaration. The 

declaration must contain 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. 

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 providing dates and products 

covered for the first three phases of 

enforcement. We solicited comments on 

the proposed plan for phasing in 

enforcement 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, including the 

scope of the declaration requirement, 

the specific products covered in each 

phase, definitions of terms, length of 

phases, effects on trade and industry, 

and enforcement issues. On September 

2, 2009, we published a third notice in 

the Federal Register (74 FR 45415– 

45418, Docket No. APHIS–2008–0119) 

and provided a further revised, more 

detailed phase-in schedule based on 

comments we received in response to 

the April notice as well as our 

experience with implementation to that 

date. We solicited comment on the 

revised phase-in plan for 60 days ending 

on November 2, 2009, and received 67 

comments by that date. 

We are publishing this advance notice 

of proposed rulemaking in order to seek 

information and develop regulatory 

options on the following issues: 

1. Whether an exception from the 

declaration requirement for products 

containing minimal amounts of plant 

material could be developed that would 

be less burdensome while still carrying 

out the intent of the Lacey Act 

amendments; 

2. How importers may comply with 

the declaration requirement when 

importing composite plant products 

whose genus, species, and country of 

harvest of some or all of the plant 

material may be extremely difficult or 

prohibitively expensive to determine; 

3. How to accommodate products 

made of re-used plant materials, or plant 

materials harvested or manufactured 

prior to the 2008 Lacey Act 

amendments, and for which identifying 

country of harvest, and possibly species, 

would be difficult if not impossible; and 

4. Whether groups of species 

commonly used in commercial 

production, could be given a separate 

name that could be entered on the 

declaration form as a type of shorthand 

identification of genus and species, such 

as the currently recognized ‘‘SPF’’ 

acronym for ‘‘spruce, pine, and fir.’’ 

Declaration Requirement for Shipments 

Containing Minimal Plant Materials 

The Lacey Act does not explicitly 

address whether the declaration 

requirement is intended to apply to 

imported products that contain only 

minimal amounts of plant material. It is 

not ideal to apply this requirement to 

minimal amounts of non-listed (i.e., not 


srobinson on DSK4SPTVN1PROD with PROPOSALS
Federal Register / Vol. 76, No. 126 / Thursday, June 30, 2011 / Proposed Rules 38331 

of conservation concern) plant materials 

contained in an otherwise non-plant 

product, such as wooden buttons on a 

shirt. Instead this issue might be 

efficiently addressed by describing a 

level at which the declaration 

requirement does not apply. Some 

commenters on our previous notices 

referred to this as a de minimis 

exception from the declaration 

requirement. Such a de minimis 

exception would be designed to ensure 

that the declaration requirement fulfills 

the purposes of the Lacey Act without 

unduly burdening commerce. Therefore, 

the exception would not apply to 

products containing plant material from 

species of conservation concern that 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. 

We are considering the feasibility of 

defining a de minimis exception for 

products containing minimal amounts 

of plant material. We invite comment on 

defining a threshold in terms of the 

volume, weight, or value of plant 

material in each item being imported, or 

using some combination of all three 

measures. We also invite comment on 

whether the threshold of the plant 

material should be set at 2 percent, 5 

percent, or 10 percent of a product, and 

whether that percentage of the plant 

content should be based on volume, 

weight, or value of the item being 

imported. We also seek public comment 

on whether the de minimis exception 

should be based on a certain percentage 

of just one of these characteristics 

(volume, weight, or value) of the entry, 

or whether it should be based on a 

combination of two or three of these 

characteristics. 

Declaration Requirement for Goods 

With Composite Plant Materials 

The Lacey Act’s declaration 

requirements do not address the issue of 

how to comply with the declaration 

requirements when importing goods for 

which identifying all of the plant 

material in the product by genus and 

species is extremely difficult or 

prohibitively expensive; however, the 

comments received to date demonstrate 

that many composite plant products are 

manufactured in a manner that makes 

identification of the genus and species 

of all of the plant content difficult and 

perhaps prohibitively expensive. 

One approach we are considering is to 

define the term ‘‘composite plant 

materials’’ and then formally recognize 

a de minimis exception from the 

declaration requirement for products 

containing such materials for the 

purposes of Section 3 of the Lacey Act. 

Using this approach, we might define 

‘‘composite plant materials’’ as plant 

products and plant-based components 

of products where the original plant 

material is mechanically or chemically 

broken down and subsequently recomposed or used as an extract in a 

manufacturing process. Such a 

definition would also need to include 

exceptions for species listed in an 

appendix to 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. 

We also invite comments on two 

possible approaches to incorporating 

such a definition into a de minimis 

exception from the declaration 

requirement for composite plant 

materials. In the first approach, if the 

plant product being imported is 

composed in whole or in part of a 

composite plant material, importers 

would have to identify the genus, 

species, and country of harvest of no 

less than a given percentage of the 

composite plant material content, 

measured on the basis of either weight 

or volume. 

In the second approach, where the 

plant product being imported is 

composed in whole or in part of a 

composite plant material, the 

declaration would have to contain the 

average percent composite plant 

content, measured on the basis of either 

weight or volume, without regard for the 

species or country of harvest of the 

plant, in addition to information as to 

genus, species, and country of harvest 

for any non-composite plant content. 

We invite comment on the possibility 

of defining composite plant products 

and implementing either of the 

approaches described above. We 

particularly invite comment on the 

possibility of using the Genus spp. 

format (for example, Acer spp.) for 

certain composite plant materials in 

limited circumstances both as to the 

scope of composite plant materials 

covered and the scope of the 

circumstances in which the format may 

be used for those limited materials. We 

also invite comment on possible 

percentages that could be used as a 

threshold for a de minimis exception 

from the declaration requirement for 

composite plant materials. 

Declaration Requirement for Dated 

Products 

We recognize that it may be difficult 

to determine and report the scientific 

name and/or country of harvest of 

plants in some products made of re-used 

plant materials, or harvested or 

manufactured prior to the passage of the 

Lacey Act Amendments of 2008. We do 

not believe that it was the intention of 

the amendments to prevent all such 

products from entering the United 

States. However, the Act as amended, 

including the plant import declaration 

requirement, applies to all imports of 

plants, plant parts, and products thereof 

as of the effective date of the 

amendments. We currently allow an 

importer to declare that the product 

being imported was manufactured prior 

to May 22, 2008, and that in the exercise 

of due care the genus, species, and/or 

country of harvest is unknown. The 

importer must still provide on the 

declaration form all known or 

reasonably knowable genus, species, 

and country of harvest information, and, 

as explained below, the person 

completing the declaration must certify 

that the declaration is correct to the best 

of his or her knowledge. An Animal and 

Plant Health Inspection Servicedesignated Special Use Code is 

provided to streamline the declaration 

of materials manufactured prior to the 

amendment. We anticipate that this 

approach would allow for trade in 

existing inventories and would 

diminish in use rapidly, ultimately 

applying largely to antique products, or 

those being re-sold. We invite comments 

on this practice. 

Declaration Revision 

Public comments and our experience 

implementing the declaration to date 

have drawn attention to the need to 

revise the declaration form to improve 

its effectiveness and remove 

unnecessary burdens associated with 

providing the required information. 

Comments on previous notices have 

drawn particular attention to the burden 

associated with providing scientific 

name, country of harvest, and plant 

quantity information for each plant 

component of products in a shipment, 

especially when the declaration is 

required for complex products, such as 

furniture. In response to these 

comments, we simplified the 

declaration so that the scientific name 

and country of harvest information need 

not be reported for each article or 

component of an article in an entry but 

can instead be provided for the entry as 

a whole. That is, the amount of each 

species, by country of harvest, is 


srobinson on DSK4SPTVN1PROD with PROPOSALS
38332 Federal Register / Vol. 76, No. 126 / Thursday, June 30, 2011 / Proposed Rules 

required only in total for each 

Harmonized Tariff Schedule code. 

Importers are still permitted to report 

the scientific name information by 

article or component of article if that 

organizational structure is preferable. 

This has significantly reduced the lines 

of data entry required while causing 

little reduction in the enforcement 

utility of the information. However, the 

importer of record is still required to 

maintain records documenting the 

information used to calculate these total 

amounts for 5 years, should it be needed 

to facilitate an inspection or substantiate 

the totals provided. 

The declaration could also be revised 

to substitute a new term in place of the 

term ‘‘country of harvest,’’ which 

experience has indicated is so similar to 

the Customs term ‘‘country of origin’’ as 

to be confusing. We are considering 

using the phrase ‘‘harvest location (by 

country)’’ to attempt to more clearly 

distinguish this information from the 

Customs concept of country of origin of 

the merchandise. 

The declaration form could be further 

revised to accommodate the changes 

and proposals described above. These 

changes could include revision of the 

form to collect information required for 

composite materials (the percent 

composite material in the shipment, for 

which it is not possible to identify 

species and/or country of harvest). In 

addition, the revised form could have a 

box that would have to be checked 

when an importer needs to report goods 

manufactured prior to May 22, 2008, for 

which the importer cannot determine, 

in the exercise of due care, the genus, 

species and/or country of harvest of 

those plant products. The box would 

state that the plant products were 

manufactured prior to May 22, 2008, 

and that in the exercise of due care, the 

importer has been unable to determine 

the genus, species, and/or country of 

harvest information that is lacking on 

the declaration form. 

We are soliciting comments on these 

possible changes to the declaration 

form. 

Declaration of Genus and Species Using 

Species Groupings 

We also recognize that the declaration 

requirement to identify the genus and 

species of all plants that may be 

contained in covered products may 

frequently require declarations to 

contain long lists of species. A number 

of commenters requested that 

recognized groups of common species 

often traded in combination in similar 

percentages in particular industries be 

allowed to be declared under a single 

shorthand definition. In a previous 

notice we specifically invited comments 

on the use of species groups, such as 

‘‘SPF’’ for spruce, pine and fir, when 

such groups accurately describe the 

species that may be contained in the 

product(s) covered by the declaration. 

We received a number of comments 

supporting this approach and no 

comments in opposition. Therefore, we 

have begun to provide reference codes 

for such groups, along with the lists of 

species included in each group, on the 

APHIS Web site at http:// 

www.aphis.usda.gov/plant_health/ 

lacey_act/. 

In addition, we invite proposals for 

additional groupings to be considered. 

Any proposal for a species group should 

contain the complete list of species to be 

included and additional information 

with which we can evaluate the extent 

to which the proposed group is 

currently represented in goods in 

international trade. Only those species 

group codes posted on the APHIS Web 

site can be used to meet the requirement 

to provide genus and species 

information on the plant import 

declaration. 

The Web site also contains the text of 

the Lacey Act, as amended, the 

declaration form and enforcement 

schedule, guidance on compliance with 

the provisions of the Act, and links to 

previous Federal Register publications. 

The Web site will be updated as new 

materials become available. 

Persons interested in receiving 

updates on APHIS’s Lacey Act efforts 

should register for our stakeholder 

registry at https:// 

web01.aphis.usda.gov/ 

PPQStakeWeb2.nsf and select ‘‘Lacey 

Act Declaration’’ as a topic of interest. 

This action has been determined to be 

not significant for the purposes of 

Executive Order 12866 and, therefore, 

has not been reviewed by the Office of 

Management and Budget. 

Authority: 16 U.S.C. 3371 et seq.; 7 CFR 

2.22, 2.80, and 371.2(d). 

Done in Washington, DC, this 24th day of 

June 2011. 

Kevin Shea, 

Acting Administrator, Animal and Plant 

Health Inspection Service. 

[FR Doc. 2011–16406 Filed 6–29–11; 8:45 am] 

BILLING CODE 3410–34–P 

DEPARTMENT OF TRANSPORTATION 

Federal Aviation Administration 

14 CFR Part 39 

[Docket No. FAA–2011–0649; Directorate 

Identifier 2011–NM–076–AD] 

RIN 2120–AA64 

Airworthiness Directives; The Boeing 

Company Model MD–11 and MD–11F 

Airplanes 

AGENCY: Federal Aviation 

Administration (FAA), DOT. 

ACTION: Notice of proposed rulemaking 

(NPRM). 

SUMMARY: We propose to adopt a new 

airworthiness directive (AD) for the 

products listed above. This proposed 

AD would require replacing the rub 

strips of the tail fuel tank access door 

with new rub strips. This proposed AD 

was prompted by a report that the rub 

strips of the tail fuel tank access door 

were manufactured improperly. We are 

proposing this AD to prevent inadequate 

electrical bonding between the rub 

strips and the fuel access door, which 

can contribute to possible ignition of 

flammable fuel vapor in the tail fuel 

tank as a result of a lightning strike. 

DATES: We must receive comments on 

this proposed AD by August 15, 2011. 

ADDRESSES: You may send comments by 

any of the following methods: 

• Federal eRulemaking Portal: Go to 

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

instructions for submitting comments. 

• Fax: 202–493–2251. 

• Mail: U.S. Department of 

Transportation, Docket Operations, 

M–30, West Building Ground Floor, 

Room W12–140, 1200 New Jersey 

Avenue, SE., Washington, DC 20590. 

• Hand Delivery: Deliver to Mail 

address above between 9 a.m. and 

5 p.m., Monday through Friday, except 

Federal holidays. 

For service information identified in 

this proposed AD, contact Boeing 

Commercial Airplanes, Attention: Data 

& Services Management, 3855 

Lakewood Boulevard, MC D800–0019, 

Long Beach, California 90846–0001; 

telephone 206–544–5000, extension 2; 

fax 206–766–5683; e-mail 

dse.boecom@boeing.com; Internet 

https://www.myboeingfleet.com. You 

may review copies of the referenced 

service information at the FAA, 

Transport Airplane Directorate, 1601 

Lind Avenue, SW., Renton, Washington. 

For information on the availability of 

this material at the FAA, call 425–227– 

1221. 


srobinson on DSK4SPTVN1PROD with PROPOSALS