Federal Register / Vol. 83, No. 131 / Monday, July 9, 2018 / Proposed Rules 31697 

(26) Indianapolis-Carmel-Muncie, 

IN—consisting of the IndianapolisCarmel-Muncie, IN CSA and also 

including Grant County, IN; 

(27) Kansas City-Overland ParkKansas City, MO-KS—consisting of the 

Kansas City-Overland Park-Kansas City, 

MO-KS CSA and also including Jackson 

County, KS, Jefferson County, KS, Osage 

County, KS, Shawnee County, KS, and 

Wabaunsee County, KS; 

(28) Laredo, TX—consisting of the 

Laredo, TX MSA; 

(29) Las Vegas-Henderson, NV-AZ— 

consisting of the Las Vegas-Henderson, 

NV-AZ CSA; 

(30) Los Angeles-Long Beach, CA— 

consisting of the Los Angeles-Long 

Beach, CA CSA and also including Kern 

County, CA, San Luis Obispo County, 

CA, and Santa Barbara County, CA; 

(31) Miami-Fort Lauderdale-Port St. 

Lucie, FL—consisting of the Miami-Fort 

Lauderdale-Port St. Lucie, FL CSA and 

also including Monroe County, FL; 

(32) Milwaukee-Racine-Waukesha, 

WI—consisting of the MilwaukeeRacine-Waukesha, WI CSA; 

(33) Minneapolis-St. Paul, MN-WI— 

consisting of the Minneapolis-St. Paul, 

MN-WI CSA; 

(34) New York-Newark, NY-NJ-CTPA—consisting of the New YorkNewark, NY-NJ-CT-PA CSA and also 

including all of Joint Base McGuire-DixLakehurst; 

(35) Palm Bay-Melbourne-Titusville, 

FL—consisting of the Palm BayMelbourne-Titusville, FL MSA; 

(36) Philadelphia-Reading-Camden, 

PA-NJ-DE-MD—consisting of the 

Philadelphia-Reading-Camden, PA-NJDE-MD CSA, except for Joint Base 

McGuire-Dix-Lakehurst; 

(37) Phoenix-Mesa-Scottsdale, AZ— 

consisting of the Phoenix-MesaScottsdale, AZ MSA; 

(38) Pittsburgh-New Castle-Weirton, 

PA-OH-WV—consisting of the 

Pittsburgh-New Castle-Weirton, PA-OHWV CSA; 

(39) Portland-Vancouver-Salem, ORWA—consisting of the PortlandVancouver-Salem, OR-WA CSA; 

(40) Raleigh-Durham-Chapel Hill, 

NC—consisting of the Raleigh-DurhamChapel Hill, NC CSA and also including 

Cumberland County, NC, Hoke County, 

NC, Robeson County, NC, Scotland 

County, NC, and Wayne County, NC; 

(41) Richmond, VA—consisting of the 

Richmond, VA MSA and also including 

Cumberland County, VA, King and 

Queen County, VA, and Louisa County, 

VA; 

(42) Sacramento-Roseville, CA-NV— 

consisting of the Sacramento-Roseville, 

CA CSA and also including Carson City, 

NV, and Douglas County, NV; 

(43) San Antonio-New BraunfelsPearsall, TX—consisting of the San 

Antonio-New Braunfels-Pearsall, TX 

CSA; 

(44) San Diego-Carlsbad, CA— 

consisting of the San Diego-Carlsbad, 

CA MSA; 

(45) San Jose-San Francisco-Oakland, 

CA—consisting of the San Jose-San 

Francisco-Oakland, CA CSA and also 

including Monterey County, CA; 

(46) Seattle-Tacoma, WA—consisting 

of the Seattle-Tacoma, WA CSA and 

also including Whatcom County, WA; 

(47) St. Louis-St. Charles-Farmington, 

MO-IL—consisting of the St. Louis-St. 

Charles-Farmington, MO-IL CSA; 

(48) Tucson-Nogales, AZ—consisting 

of the Tucson-Nogales, AZ CSA and also 

including Cochise County, AZ; 

(49) Virginia Beach-Norfolk, VA-NC— 

consisting of the Virginia BeachNorfolk, VA-NC CSA; 

(50) Washington-Baltimore-Arlington, 

DC-MD-VA-WV-PA—consisting of the 

Washington-Baltimore-Arlington, DCMD-VA-WV-PA CSA and also including 

Kent County, MD, Adams County, PA, 

York County, PA, King George County, 

VA, and Morgan County, WV; and 

(51) Rest of U.S.—consisting of those 

portions of the United States and its 

territories and possessions as listed in 5 

CFR 591.205 not located within another 

locality pay area. 

[FR Doc. 2018–14542 Filed 7–6–18; 8:45 am] 

BILLING CODE 6325–39–P 

DEPARTMENT OF AGRICULTURE 

Animal and Plant Health Inspection 

Service 

7 CFR Part 357 

[Docket No. APHIS–2013–0055] 

RIN 0579–AD44 

Lacey Act Implementation Plan: De 

Minimis Exception 

AGENCY: Animal and Plant Health 

Inspection Service, USDA. 

ACTION: Proposed rule. 

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 

requirement of the Lacey Act became 

effective on December 15, 2008, and 

enforcement of that requirement is being 

phased in. We are proposing to establish 

an exception to the declaration 

requirement for products containing a 

minimal amount of plant materials. This 

action would relieve the burden on 

importers while continuing to ensure 

that the declaration requirement fulfills 

the purposes of the Lacey Act. We are 

also proposing that all Lacey Act 

declarations be submitted within 3 

business days of importation. 

DATES: We will consider all comments 

that we receive on or before September 

7, 2018. 

ADDRESSES: You may submit comments 

by either of the following methods: 

• Federal eRulemaking Portal: Go to 

http://www.regulations.gov/#!docket

Detail;D=APHIS-2013-0055. 

• Postal Mail/Commercial Delivery: 

Send your comment to Docket No. 

APHIS–2013–0055, 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-2013-0055 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: Ms. 

Parul Patel, Senior Agriculturalist, 

Permitting and Compliance 

Coordination, PPQ, APHIS, 4700 River 

Road Unit 60, Riverdale, MD 20737– 

1231; (301) 851–2351. 

SUPPLEMENTARY INFORMATION: 

I. Executive Summary 

Need for the Regulatory Action 

Section 3 of the Lacey Act makes it 

unlawful to import certain plants, 

including plant products, without an 

import declaration. The import 

declaration serves as a tool for 

combatting the illegal trade in timber 

and timber products by ensuring 

importers provide required information. 

Through the declaration requirement, 

the importer maintains accountability 

for exercising reasonable care regarding 

the content of the shipment before it 

arrives in the United States. Information 

from the declaration is also used to 

monitor implementation of Lacey Act 

requirements. 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. 

However, the Act does not explicitly 

address whether the declaration 


sradovich on DSK3GMQ082PROD with PROPOSALS
31698 Federal Register / Vol. 83, No. 131 / Monday, July 9, 2018 / Proposed Rules 

1To view the advance notice of proposed 

rulemaking and the comments we received, go to 

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

APHIS-2010-0129. 

requirement is intended to apply to 

imported products that contain minimal 

plant material. This proposed rule 

would establish limited exceptions to 

the declaration requirement for entries 

of products containing minimal plant 

material. This action would relieve the 

burden on importers while ensuring that 

the declaration requirement continues 

to fulfill the purposes of the Lacey Act. 

Legal Authority for 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 than 

was previously provided by the Act. 

The requirement that importers of 

plants and plant products file a 

declaration upon importation is set forth 

in 16 U.S.C. 3372(f). In 16 U.S.C. 

3376(a)(1), the statute further provides 

rulemaking authority to the Secretary of 

Agriculture with respect to the 

declaration requirement: ‘‘the Secretary, 

after consultation with the Secretary of 

the Treasury, is authorized to issue such 

regulations . . . as may be necessary to 

carry out the provisions of Section[s] 

3372(f) of this title.’’ 

Summary of Major Provisions of the 

Regulatory Action 

This proposed rule would establish 

certain exceptions from the requirement 

that a declaration be filed when 

importing certain plants and plant 

products. Specifically, it would 

establish an exception to the declaration 

requirement for products with minimal 

amounts of plant material. The 

proposed rule would also establish a 

new section to specify the conditions 

under which a plant import declaration 

must be filed and what information it 

must include. These conditions reflect 

the provisions of the Act and would 

provide additional context for the 

proposed exceptions. 

Costs and Benefits 

To the extent that the proposed rule 

would provide exceptions from the 

provisions of the Act, it would benefit 

U.S. importers. Establishing a de 

minimis exception from the declaration 

requirement for products with minimal 

amounts of plant material would relieve 

importers of the burden of identifying 

very small amounts of plant material, 

while continuing to ensure that the 

declaration requirement fulfills the 

purposes of the Lacey Act. 

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 

illegally taken 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, 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 

law, treaty, or regulation of the United 

States or in violation of any Indian tribal 

law,’’ or in violation of any State or 

foreign law that protects plants or that 

regulates certain specified plant-related 

activities. 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, made it unlawful, 

beginning December 15, 2008, to import 

certain plants, including plant products, 

without an import declaration. The 

import declaration serves as a tool for 

combatting the illegal trade in timber 

and timber products by ensuring 

importers provide required information. 

Through the declaration requirement, 

the importer maintains accountability 

for exercising reasonable care regarding 

the content of the shipment before it 

arrives in the United States. Information 

from the declaration is also used to 

monitor implementation of Lacey Act 

requirements. 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 June 30, 2011, we published an 

advance notice of proposed rulemaking 

(ANPR) in the Federal Register (76 FR 

38330, Docket No. APHIS–2010–0129),1

soliciting public comment on several 

regulatory options to address certain 

issues that have arisen with the 

implementation of the declaration 

requirement. These options included 

establishing certain exceptions to the 

declaration requirement for products 

with minimal amounts of plant material 

and for products containing composite 

plant materials. We solicited comments 

on these options for 60 days ending on 

August 29, 2011, and received 37 

comments by that date. The comments 

received were from academics, 

environmental groups, importers and 

exporters, industry associations, a trade 

union, representatives of foreign 

governments, and private citizens. We 

discuss the comments received on the 

approaches for composite plant 

materials in a new ANPR published 

today in the Federal Register, in which 

we invite comment on additional 

questions regarding implementation of 

the declaration requirement for these 

products. 

Most of the commenters on the 2011 

ANPR supported establishing 

exceptions to the declaration 

requirement for products with minimal 

amounts of plant material and suggested 

a range of possible levels at which the 

threshold for exceptions could be set. 

We took those comments into 

consideration when developing this 

proposed rule. We are proposing to 

establish an exception to the declaration 

requirement for products containing a 

minimal amount of plant materials. We 

are also proposing that all Lacey Act 

declarations be submitted within 3 

business days of importation. 

Purpose and Scope 

As a result of the changes proposed in 

this document, it is necessary to amend 

the statement of purpose and scope in 

7 CFR 357.1. At the time this section 

was established, part 357 contained 

only definitions. However, because this 

proposed rule would add more sections 

to the regulations, containing provisions 

that address the declaration requirement 

of the Act, we would amend the 

statement to remove the third sentence, 

which references the declaration 

requirement, and add a new final 

sentence that acknowledges that the 

regulations in part 357 address the 

declaration requirement of the Act. 

Definitions 

We are proposing to define the terms 

import and person, and to amend the 

definition for plant so that all three 

definitions in the regulations conform to 

the definitions in the statute. We would 

define import as meaning to land on, 

bring into, or introduce into, any place 

subject to the jurisdiction of the United 

States, whether or not such landing, 

bringing, or introduction constitutes an 

importation within the meaning of the 

customs laws of the United States. We 

would define person as any individual, 

partnership, association, corporation, 

trust, or any officer, employee, agent, 

department, or instrumentality of the 

Federal Government or of any State or 

political subdivision thereof, or any 

other entity subject to the jurisdiction of 

the United States. These definitions are 

the same as those in the Act and will 


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Federal Register / Vol. 83, No. 131 / Monday, July 9, 2018 / Proposed Rules 31699 

help ensure that the declaration 

requirement continues to fulfill the 

purposes of the Lacey Act without 

unduly burdening commerce. 

For the same reason we are proposing 

to amend the definition of plant to 

include the exception provision of the 

statute. The definition currently in the 

regulations, while consistent with the 

definition in the Act, does not include 

the exclusions for common cultivars 

and common food crops, scientific 

specimens, and plants for planting that 

are included in the definition in the Act. 

The definition currently in the 

regulations also does not include the 

exceptions to the application of 

exclusions for plants 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), or 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 

proposing to amend the definition in the 

regulations to add the exclusions for 

common cultivars, common food crops, 

scientific specimens used only for 

laboratory or field research, and any 

plant that is to remain planted or to be 

planted or replanted, and also to add the 

exceptions to the application of those 

exclusions so that the proposed 

definition conforms with the statutory 

definition. 

Declaration Requirement 

We are proposing to add a new 

§ 357.3, ‘‘Declaration Requirement,’’ to 

specify the conditions under which a 

plant import declaration must be filed 

and what information it must include. 

These conditions reflect the provisions 

of the Act and would provide additional 

context for the proposed exceptions. 

Exception From Declaration 

Requirement for Entries Containing 

Minimal Plant Materials 

The requirement that importers of 

plants and plant products file a 

declaration upon importation is set forth 

in 16 U.S.C. 3372(f). The Lacey Act does 

not explicitly address whether the 

declaration requirement is intended to 

apply to products containing minimal 

amounts of plant materials, but it is 

questionable whether the regulatory 

objectives of the Lacey Act are furthered 

by applying this requirement to minimal 

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

conservation concern) plant materials 

contained in an otherwise non-plant 

product. We believe that this issue 

would be efficiently addressed by 

establishing a level at which the 

declaration requirement does not apply. 

We seek public comment on two 

options with respect to a de minimis 

exception to the declaration 

requirement. Under the first option, we 

propose to adopt an exception from the 

declaration requirement for products 

containing plant material that represents 

no more than 5 percent of the total 

weight of the individual product unit, 

provided that the total weight of the 

plant material in an entry of such 

products (at the entry line level) does 

not exceed 2.9 kilograms. Alternatively, 

as a second option, we propose an 

exception from the declaration 

requirement for products containing 

plant material that represents no more 

than 5 percent of the total weight of the 

individual product unit, provided that 

the total weight of the plant material in 

an individual product unit does not 

exceed some amount of plant material 

by weight or board feet. Under this 

second option, we invite comment on 

what would be an appropriate 

maximum amount allowable by weight 

or board feet under the de minimis 

exception. The figure of 2.9 kilograms in 

the first option was selected based on 

the weight of a board-foot of lignum 

vitae (Guaiacum officinale and 

Guaiacum sanctum) as an appropriately 

minimal amount of plant material. A 

board-foot (that is, 12 x 12 x 1 inches 

or 30.48 x 30.48 x 2.54 centimeters) is 

a common unit of volume in the timber 

industry, and the woods of these species 

are among the densest known, weighing 

1.23 grams per cubic centimeter. 

In the event that the weight of the 

plant material in an individual product 

unit cannot be determined, then we 

propose an exception from the 

declaration requirement for products 

containing plant material that represents 

no more than 10 percent of the declared 

value of the individual product unit, 

provided that the total quantity of the 

plant material in an entry of such 

products (at the entry line level) has a 

volume of less than 1 board-foot. 

Alternatively, as a second option in the 

event that the weight of the plant 

material in an individual product unit 

cannot be determined, we propose an 

exception from the declaration 

requirement for products containing 

plant material that represents no more 

than 10 percent of the declared value of 

the individual product unit, provided 

that the total quantity of the plant 

material in an individual product unit 

does not exceed some amount of plant 

material by weight or board feet. Under 

this second option, we invite comment 

on what would be an appropriate 

maximum amount allowable by value or 

board feet under the de minimis 

exception. In either case, the exception 

would not apply to products containing 

plant material from species of 

conservation concern that are 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. All other 

requirements of the Lacey Act would 

still apply to entries or persons claiming 

this exception. 

We invite comment on the method of 

determining de minimis content. 

Specifically, we would appreciate 

information on whether it is feasible to 

set the threshold for the maximum 

amount of plant material at the entry 

line level, and invite comment on the 

thresholds that are proposed, including 

2.9 kilograms in total weight or volume 

of less than 1 board foot per entry line 

level of the plant product. 

We also seek comment on whether the 

de minimis threshold should be 

calculated on a per product unit basis, 

at least for certain products, and if so 

what would be an appropriate amount 

of plant material on a per product basis, 

by weight or by board foot. 

We also invite comment on whether 

the 5 percent threshold should be higher 

or lower, and why. For example, a 

number of commenters on the ANPR 

suggested setting the threshold at 10 

percent. Additional data from 

commenters in support of either the 5 

percent threshold or an alternative 

threshold would be useful for the 

rulemaking process. We also solicit 

comment on whether the 5 percent 

threshold or any alternative threshold 

proposed by commenters is appropriate 

as a de minimis exception and 

consistent with the statute. 

Time Limit for Submission of 

Declarations 

While the majority of importers 

submit their Lacey Act declarations at 

the time of formal customs entry, there 

has been some confusion about the time 

frame in which declarations should be 

submitted, with some importers 

submitting declarations up to a year 

after importation. While the 

declarations are required pursuant to 

the language of the statute ‘‘upon 

importation,’’ that is, upon landing in 

United States jurisdiction, we are 

proposing to allow importers to file 

Lacey Act declarations within 3 

business days of importation without 

facing any enforcement action or 

penalty for late filing. This would 


sradovich on DSK3GMQ082PROD with PROPOSALS
31700 Federal Register / Vol. 83, No. 131 / Monday, July 9, 2018 / Proposed Rules 

accommodate the needs of industry 

while ensuring that declarations are 

submitted in a timely manner for the 

purposes of the statute. 

Executive Orders 12866 and 13771 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. This 

proposed rule, if finalized as proposed, 

is expected to be an Executive Order 

13771 deregulatory action. Assessment 

of the costs and cost savings may be 

found in the accompanying economic 

analysis. 

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 provides an 

initial regulatory flexibility analysis that 

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 

website (see ADDRESSES above for 

instructions for accessing 

Regulations.gov). 

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 

requirement of the Lacey Act became 

effective on December 15, 2008, and 

enforcement of that requirement is being 

phased in. We are proposing to establish 

an exception to the declaration 

requirement for products containing a 

minimal amount of plant materials. We 

are also proposing that all Lacey Act 

declarations be submitted within 3 

business days upon importation. 

The proposed rule would benefit 

some U.S. importers, large or small. The 

provisions of this proposed rule would 

relieve importers of the burden of 

identifying very small amounts of plant 

material incorporated into a product for 

which obtaining declaration information 

may be difficult, while continuing to 

ensure that the declaration requirement 

fulfills the purposes of the Lacey Act. 

The Lacey Act amendments included 

in the 2008 Farm Bill were effective as 

of May 22, 2008. As a practical matter, 

this means that enforcement actions 

may be taken for any violations 

committed on or after that date. The 

requirement to provide a declaration 

under the amended Act went into effect 

May 1, 2009. Declarations serve several 

purposes including but not limited to 

data acquisition and accountability, and 

they assist regulatory and enforcement 

authorities in monitoring 

implementation of the Lacey Act’s 

prohibitions on importing illegally 

harvested plants. Enforcement of the 

declaration requirement is being phased 

in. The phase-in schedule is largely 

based on the degree of processing and 

complexity of composition of the 

affected products. The requirement that 

importers file a declaration upon 

importation for products in parts of the 

Harmonized Tariff Schedule of the 

United States (HTS) Chapters 44, 66, 82, 

92, 93, 94, 95, 96 and 97, is currently 

being enforced. We are currently 

considering products for inclusion in 

the next phase of implementation. 

If this proposed rule is finalized, some 

importers of products containing a 

minimal amount of plant material who 

are currently required to file 

declarations upon importation of their 

products would be excepted from that 

requirement. The cost savings from not 

having to file those declarations is one 

measure of the expected benefits of this 

proposed rule. From July 2015 through 

mid-June 2017, there were about 715 

weekly shipments of commodities 

currently requiring declarations and 

containing amounts of plant material 

that potentially would have been 

eligible for de minimis status under the 

proposed rule. Based on information 

available on those shipments, we 

estimate that between 10 and 20 percent 

of those commodities would have met 

the proposed definitions for de minimis 

exception. Had those commodity 

shipments not needed to be 

accompanied by declarations, we 

estimate the annual cost savings for 

affected producers would have ranged 

in total from a low of about $56,700 to 

a high of about $407,900 annually, with 

annual government processing savings 

of between about $1,000 and $1,900. In 

accordance with guidance on complying 

with Executive Order 13771, the 

primary estimate of the annual private 

sector cost savings for this rule is 

$232,300. This value is the mid-point 

estimate of cost savings annualized in 

perpetuity using a 7 percent discount 

rate. 

The total cost of compliance with the 

declaration requirement of the Act as 

currently enforced is estimated to be 

between $11.6 million and $50.3 

million. The estimated reduction in 

compliance costs of about $56,700 to 

$407,900 would represent a cost savings 

of between 0.1 and 3.5 percent. 

Both the declaration costs and the 

cost savings expected with this 

proposed rule are small when compared 

to the value of the commodities 

imported. In 2016, the value of U.S. 

imports of products currently requiring 

a declaration totaled about $20.4 billion, 

and the value of U.S. imports of such 

commodities as umbrellas, walking 

sticks, and handguns that may include 

small amounts of plant material was 

$2.7 billion. 

The full schedule for enforcement of 

the declaration requirement has not yet 

been determined. Because enforcement 

of the declaration requirement in the 

Act is being phased in, some products 

that would meet the de minimis criteria 

do not currently require a declaration; 

their importation would not be initially 

affected. For example, apparel articles 

such as shirts with wood buttons may 

be considered to have minimal plant 

material, but the declaration 

requirement for products in that HTS 

code are not part of the current 

enforcement schedule. While the 

volume of imported commodities for 

which the exceptions would be 

applicable could be large, the cost 

savings for affected importers are 

expected to be small relative to the 

value of the commodities. 

We are also proposing to require that 

Lacey Act declarations be submitted 

within 3 business days of importation. 

This change should have little impact 

on importers. Over 90 percent of current 

declarations are already submitted at the 

time of arrival and there is no reason to 

believe that the burden associated with 

submitting a declaration within 3 

business days would be significantly 

greater than the burden associated with 

submitting a declaration more than 3 

business days of importation. An 

importer reasonably knows the contents 

of a shipment before it arrives in the 

United States, and the information 

necessary for submitting a declaration 

should be available easily within 3 

business days upon importation. 

This action would result in some cost 

savings for importing businesses, most 

of which are small entities. Based on 

our review of available information, 

APHIS does not expect the proposed 

rule to have a significant economic 

impact on small entities. We have 


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Federal Register / Vol. 83, No. 131 / Monday, July 9, 2018 / Proposed Rules 31701 

prepared an initial regulatory flexibility 

analysis because the information used 

in this analysis may not address all 

possible economic effects of this 

proposed rule on small entities. The 

savings are likely to represent a very 

small share of the overall value of the 

imported goods, and are not expected to 

significantly affect most importers of 

goods covered by the Lacey Act, 

whether large or small. 

Average annual receipts of small, 

potentially affected entities under the 

proposed thresholds range from 

$843,000 to $1.4 million. We estimate 

that the average cost savings for an 

affected entity from not needing to file 

a single declaration may range between 

about $15 and $55. For the cost savings 

to equal 5 percent of average annual 

receipts and thereby reasonably be 

considered a significant effect would 

require that an affected entity have from 

about 770 to nearly 4,600 exempted 

declarations in a year, a range that is 

highly unlikely. 

APHIS has considered alternative 

thresholds for determining the criteria 

for a de minimis exception from the 

declaration requirement, including the 

specific percentage of total weight of an 

individual product unit that is plant 

material in an entry, the maximum total 

weight of that plant material, and the 

maximum total volume of that plant 

material. We are inviting comment on 

the specific threshold levels in this 

proposal, alternative thresholds, and 

their impact. To the extent that 

alternative thresholds result in broader 

or narrower de minimis criteria, the cost 

savings associated with such de 

minimis designation would be 

expanded or constrained. However, 

regardless the number of exemptions for 

which an entity qualifies, they would be 

beneficial and small entities would not 

be disadvantaged. 

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 

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. 

Executive Order 13175 

This rule has been reviewed in 

accordance with the requirements of 

Executive Order (E.O.) 13175, 

‘‘Consultation and Coordination with 

Indian Tribal Governments.’’ E.O. 13175 

requires Federal agencies to consult and 

coordinate with Tribes on a 

government-to-government basis on 

policies that have Tribal implications, 

including regulations, legislative 

comments or proposed legislation, and 

other policy statements or actions that 

have substantial direct effects on one or 

more Indian tribes, on the relationship 

between the Federal Government and 

Indian tribes or on the distribution of 

power and responsibilities between the 

Federal Government and Indian tribes. 

APHIS has assessed the impact of this 

rule on Indian tribes and determined 

that this rule does not, to our 

knowledge, have Tribal implications 

that require Tribal consultation under 

E.O. 13175. If a Tribe requests 

consultation, APHIS will work with the 

Office of Tribal Relations to ensure 

meaningful consultation is provided 

where changes, additions, and 

modifications identified herein are not 

expressly mandated by Congress. 

Paperwork Reduction Act 

In accordance with section 3507(d) of 

the Paperwork Reduction Act of 1995 

(44 U.S.C. 3501 et seq.), the reporting 

requirements included in this proposed 

rule have been approved under Office of 

Management and Budget control 

number 0579–0349. 

E-Government Act Compliance 

The Animal and Plant Health 

Inspection Service is committed to 

compliance with the E-Government Act 

to promote the use of the internet and 

other information technologies, to 

provide increased opportunities for 

citizen access to Government 

information and services, and for other 

purposes. For information pertinent to 

E-Government Act compliance related 

to this proposed rule, please contact Ms. 

Kimberly Hardy, APHIS’ Information 

Collection Coordinator, at (301) 851– 

2483. 

List of Subjects in 7 CFR Part 357 

Endangered and threatened species, 

Plants (Agriculture). 

Accordingly, we propose to amend 7 

CFR part 357 as follows: 

PART 357—CONTROL OF ILLEGALLY 

TAKEN PLANTS 

■ 1. The authority citation for part 357 

continues to read as follows: 

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

2.22, 2.80, and 371.2(d). 

■ 2. Section 357.1 is revised to read as 

follows: 

§ 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 or Tribal law, or in violation of 

a State or foreign law that protects 

plants or that regulates certain specified 

plant-related activities. 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. 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 authorizes 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. Additionally, the 

regulations in this part address the 

declaration requirement of the Act. 

■ 3. Section 357.2 is amended as 

follows: 

■ a. By adding definitions for Import 

and Person in alphabetical order; and 

■ b. By revising the definition for Plant. 

The additions and revision read as 

follows: 

§ 357.2 Definitions. 

* * * * * 

Import. To land on, bring into, or 

introduce into, any place subject to the 

jurisdiction of the United States, 

whether or not such landing, bringing, 

or introduction constitutes an 

importation within the meaning of the 

customs laws of the United States. 

Person. Any individual, partnership, 

association, corporation, trust, or any 

officer, employee, agent, department, or 

instrumentality of the Federal 

Government or of any State or political 

subdivision thereof, or any other entity 

subject to the jurisdiction of the United 

States. 

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. The term plant excludes: 

(1) Common cultivars, except trees, 

and common food crops (including 

roots, seeds, parts, or products thereof); 

(2) A scientific specimen of plant 

genetic material (including roots, seeds, 

germplasm, parts, or products thereof) 

that is to be used only for laboratory or 

field research; and 

(3) Any plant that is to remain planted 

or to be planted or replanted. 

(4) A plant is not eligible for these 

exclusions if it is listed: 


sradovich on DSK3GMQ082PROD with PROPOSALS
31702 Federal Register / Vol. 83, No. 131 / Monday, July 9, 2018 / Proposed Rules 

(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. 

* * * * * 

■ 4. Section 357.3 is added to read as 

follows: 

§ 357.3 Declaration requirement. 

(a) Any person importing any plant 

shall file upon importation a declaration 

that contains: 

(1) The scientific name of any plant 

(including the genus and species of the 

plant) contained in the importation; 

(2) A description of the value of the 

importation and the quantity, including 

the unit of measure, of the plant; and 

(3) The name of the country from 

which the plant was taken. 

(b) The declaration relating to a plant 

product shall also contain: 

(1) If the species of plant used to 

produce the plant product that is the 

subject of the importation varies, and 

the species used to produce the plant 

product is unknown, the name of each 

species of plant that may have been 

used to produce the plant product; 

(2) If the species of plant used to 

produce the plant product that is the 

subject of the importation is commonly 

taken from more than one country, and 

the country from which the plant was 

taken and used to produce the plant 

product is unknown, the name of each 

country from which the plant may have 

been taken; and 

(3) If a paper or paperboard plant 

product includes recycled plant 

product, the average percent recycled 

content without regard for the species or 

country of origin of the recycled plant 

product, in addition to the information 

for the non-recycled plant content 

otherwise required by this section. 

(Approved by the Office of Management and 

Budget under control number 0579–0349) 

■ 5. Section 357.4 is added to read as 

follows: 

§ 357.4 Exceptions from the declaration 

requirement. 

Plants and products containing plant 

materials are excepted from the 

declaration requirement if: 

(a) The plant is used exclusively as 

packaging material to support, protect, 

or carry another item, unless the 

packaging material itself is the item 

being imported; or 

(b) The plant material in a product 

represents no more than 5 percent of the 

total weight of the individual product 

unit, provided that the total weight of 

the plant material in [an entry of such 

products][a product unit] does not 

exceed [2.9 kilograms] [or other 

amount]; or, if the weight cannot be 

determined, the value of the plant 

material in the individual product unit 

represents no more than 10 percent of 

the declared value of the product, 

provided that the total quantity of plant 

material in [an entry of such products][a 

product unit] has a volume of less than 

[1 board foot (that is, 12 x 12 x 1 inches 

or 30.48 x 30.48 x 2.54 centimeters)] [or 

other amount]. 

(c) A product will not be eligible for 

an exception under paragraph (b) of this 

section if it contains plant material 

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. 

■ 6. Section 357.5 is added to read as 

follows: 

§ 357.5 Time limit for submission of plant 

declarations. 

In the case of commodities for which 

a plant declaration is required, the 

declaration must be submitted within 3 

business days of importation. 

Done in Washington, DC, this 3rd day of 

July 2018. 

Greg Ibach, 

Under Secretary for Marketing and Regulatory 

Programs. 

[FR Doc. 2018–14630 Filed 7–6–18; 8:45 am] 

BILLING CODE 3410–34–P 

DEPARTMENT OF AGRICULTURE 

Animal and Plant Health Inspection 

Service 

7 CFR Part 357 

[Docket No. APHIS–2018–0017] 

RIN 0579–AE36 

Lacey Act Implementation Plan: 

Composite Plant Materials 

AGENCY: Animal and Plant Health 

Inspection Service, USDA. 

ACTION: Advance notice of proposed 

rulemaking and request for comments. 

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 for 

composite plant materials. 

DATES: We will consider all comments 

that we receive on or before September 

7, 2018. 

ADDRESSES: You may submit comments 

by either of the following methods: 

• Federal eRulemaking Portal: Go to 

http://www.regulations.gov/#!docket

Detail;D=APHIS-2018-0017. 

• Postal Mail/Commercial Delivery: 

Send your comment to Docket No. 

APHIS–2018–0017, 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-2018-0017 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: Ms. 

Parul Patel, Senior Agriculturalist, 

Permitting and Compliance 

Coordination, PPQ, APHIS, 4700 River 

Road, Unit 60, Riverdale, MD 20737– 

1231; (301) 851–2351. 

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, among other 

things, trafficking in illegally taken 

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 than were previously covered. 

(Section 8204, Prevention of Illegal 

Logging Practices). The Lacey Act now 

makes it unlawful to import, export, 

transport, sell, receive, acquire, or 


sradovich on DSK3GMQ082PROD with PROPOSALS