This section of the FEDERAL REGISTER

contains notices to the public of the proposed

issuance of rules and regulations. The

purpose of these notices is to give interested

persons an opportunity to participate in the

rule making prior to the adoption of the final

rules.

Proposed Rules Federal Register

46859 

Vol. 75, No. 149 

Wednesday, August 4, 2010 

DEPARTMENT OF AGRICULTURE 

Animal and Plant Health Inspection 

Service 

7 CFR Part 357 

[Docket No. APHIS-2009-0018] 

RIN 0579-AD11 

Lacey Act Implementation Plan; 

Definitions for Exempt and Regulated 

Articles 

AGENCY: Animal and Plant Health 

Inspection Service, USDA. 

ACTION: Proposed rule. 

SUMMARY: In response to recent 

amendments to the Lacey Act, we are 

proposing to establish definitions for the 

terms ‘‘common cultivar’’ and ‘‘common 

food crop.’’ The amendments to the Act 

expanded its protections to a broader 

range of plant species, extended its 

reach to encompass products, including 

timber, that derive from illegally 

harvested plants, and require that 

importers submit a declaration at the 

time of importation for certain plants 

and plant products. Common cultivars 

and common food crops are among the 

categorical exemptions to the provisions 

of the Act. The Act does not define the 

terms ‘‘common cultivar’’ and ‘‘common 

food crop’’ but instead gives authority to 

the U.S. Department of Agriculture and 

the U.S. Department of the Interior to 

define these terms by regulation. Our 

proposed definitions would specify 

which plants and plant products will be 

subject to the provisions of the Act, 

including the declaration requirement. 

DATES: We will consider all comments 

that we receive on or before October 4, 

2010. 

ADDRESSES: You may submit comments 

by either of the following methods: 

∑ Federal eRulemaking Portal: Go to 

(http://www.regulations.gov/ 

fdmspublic/component/ 

main?main=DocketDetail&d=APHIS2009-0018) to submit or view comments 

and to view supporting and related 

materials available electronically. 

∑ Postal Mail/Commercial Delivery: 

Please send two copies of your comment 

to Docket No. APHIS-2009-0018, 

Regulatory Analysis and Development, 

PPD, APHIS, Station 3A-03.8, 4700 

River Road Unit 118, Riverdale, MD 

20737-1238. Please state that your 

comment refers to Docket No. APHIS2009-0018. 

Reading Room: You may read any 

comments that we receive on this 

docket in our reading room. The reading 

room is located in room 1141 of the 

USDA South Building, 14th Street and 

Independence Avenue SW., 

Washington, DC. Normal reading room 

hours are 8 a.m. to 4:30 p.m., Monday 

through Friday, except holidays. To be 

sure someone is there to help you, 

please call (202) 690-2817 before 

coming. 

Other Information: Additional 

information about APHIS and its 

programs is available on the Internet at 

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

FOR FURTHER INFORMATION CONTACT: Mr. 

George Balady, Senior Staff Officer, 

Quarantine Policy Analysis and 

Support, PPQ, APHIS, 4700 River Road 

Unit 60, Riverdale, MD 20737-1231; 

(301) 734-8295. 

SUPPLEMENTARY INFORMATION: 

Background 

The Lacey Act (16 U.S.C. 3371 et 

seq.), first enacted in 1900 and 

significantly amended in 1981, is the 

United States’ oldest wildlife protection 

statute. The Act combats trafficking in 

‘‘illegal’’ wildlife, fish, and plants. The 

Food, Conservation, and Energy Act of 

2008, effective May 22, 2008, amended 

the Lacey Act by expanding its 

protections to a broader range of plants 

and plant products (Section 8204, 

Prevention of Illegal Logging Practices). 

As amended, the Lacey Act now makes 

it unlawful to import, export, transport, 

sell, receive, acquire, or purchase in 

interstate or foreign commerce any 

plant, with some limited exceptions, 

taken in violation of any Federal, State, 

tribal, or foreign law that protects 

plants. The Lacey Act also now makes 

it unlawful to make or submit any false 

record, account, or label for, or any false 

identification of, any plant covered by 

the Act. 

In addition, Section 3 of the Lacey 

Act, as amended, makes it unlawful, 

beginning December 15, 2008, to import 

certain plants and plant products 

without an import declaration. The 

declaration must contain, among other 

things, the scientific name of the plant, 

value of the importation, quantity of the 

plant, and name of the country from 

which the plant was harvested. 

Currently, enforcement of the 

declaration requirement is being phased 

in, as described in two notices we 

published in the Federal Register (74 

FR 5911-5913 and 74 FR 45415-45418, 

Docket No. APHIS-2008-0119). 

Under the Act, ‘‘Plant’’ means: ‘‘Any 

wild member of the plant kingdom, 

including roots, seeds, parts or products 

thereof, and including trees from either 

natural or planted forest stands.’’ There 

are three categories of plants that are 

exempt from the provisions of the Act: 

1. Common cultivars, except trees, 

and common food crops (including 

roots, seeds, parts, or products thereof); 

2. Scientific specimens of plant 

genetic material (including roots, seeds, 

germplasm, parts, or products thereof) 

that are to be used only for laboratory 

or field research; 

3. Plants that are to remain planted or 

to be planted or replanted. The 

amendments to the Lacey Act, including 

the declaration requirements, still apply 

for items described under 2 and 3 if the 

plant is listed: 

∑ In an appendix to the Convention 

on International Trade in Endangered 

Species of Wild Fauna and Flora 

(CITES, 27 UST 1087; TIAS 8249); 

∑ As an endangered or threatened 

species under the Endangered Species 

Act of 1973 (ESA, 16 U.S.C. 1531 et 

seq.); or 

∑ Pursuant to any State law that 

provides for the conservation of species 

that are indigenous to the State and are 

threatened with extinction. 

Purpose and Scope 

The U.S. Department of Agriculture 

(USDA) and the U.S. Department of the 

Interior (DOI) have been given authority 

under the Lacey Act to define the terms 

‘‘common cultivar’’ and ‘‘common food 

crop.’’ In accordance with this authority, 

USDA’s Animal and Plant Health 

Inspection Service (APHIS) and DOI’s 

U.S. Fish and Wildlife Service (FWS) 

have developed definitions for those 

terms. We propose to establish a new 

part in the plant-related provisions of 

title 7, chapter III of the Code of Federal 

Regulations (CFR), which will contain 

these definitions. 


jdjones on DSK8KYBLC1PROD with PROPOSALS-1
46860 Federal Register / Vol. 75, No. 149 / Wednesday, August 4, 2010 / Proposed Rules 

The definitions, which are discussed 

below, are designed to ensure that the 

exemptions do not place at risk plants 

of conservation concern. Species of 

plants listed as endangered or 

threatened under the Endangered 

Species Act, listed in the CITES 

Appendices, or protected under State 

law are excluded from exemption 

because they are, for purposes of the 

Lacey Act, not common. However, the 

fact that a plant is not listed as 

endangered or threatened does not mean 

that it is necessarily a common one. In 

order to ensure that the exemption from 

the provisions of the Act applies only to 

plants that are common food crops or 

cultivars, the definitions are limited to 

plants of species grown on a commercial 

scale. 

As we propose to define them, these 

terms would apply to the entire species 

or hybrid of plant; the determination of 

whether a plant falls within these 

definitions is not made at the shipment 

or facility level. For example, bananas 

are a common food crop because 

bananas in general meet the definition 

of a common food crop. It is not 

necessary to determine whether 

specimens of bananas in a particular 

shipment or from a particular facility 

meet the definition. The definition for 

‘‘common cultivar’’ is consistent with 

the definition of ‘‘cultivar’’ contained in 

50 CFR 23.5 (the CITES regulations 

promulgated by FWS). The definition 

for ‘‘common food crop’’ was developed 

with consideration of, and is consistent 

with, common dictionary definitions 

and terms in commercial use. 

Definitions 

We propose to define the terms 

‘‘common cultivar’’ and ‘‘common food 

crop’’ as follows: 

Common cultivar. A plant (except a 

tree) that: 

(a) Has been developed through 

selective breeding or other means for 

specific morphological or physiological 

characteristics; and 

(b) Is a species or hybrid that is 

cultivated on a commercial scale; and 

(c) Is not listed: 

(1) In an appendix to the Convention 

on International Trade in Endangered 

Species of Wild Fauna and Flora (27 

UST 1087; TIAS 8249); 

(2) As an endangered or threatened 

species under the Endangered Species 

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

(3) Pursuant to any State law that 

provides for the conservation of species 

that are indigenous to the State and are 

threatened with extinction. 

Common food crop. A plant that: 

(a) Has been raised, grown, or 

cultivated for human or animal 

consumption, and 

(b) Is a species or hybrid that is 

cultivated on a commercial scale; and 

(c) Is not listed: 

(1) In an appendix to the Convention 

on International Trade in Endangered 

Species of Wild Fauna and Flora (27 

UST 1087; TIAS 8249); 

(2) As an endangered or threatened 

species under the Endangered Species 

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

(3) Pursuant to any State law that 

provides for the conservation of species 

that are indigenous to the State and are 

threatened with extinction. 

In addition, we propose to add a 

definition for ‘‘plant’’ consistent with the 

definition in the Act, to read as follows: 

‘‘Any wild member of the plant 

kingdom, including roots, seeds, parts 

or products thereof, and including trees 

from either natural or planted forest 

stands.’’ 

As we explained above, these 

definitions are designed to ensure that 

the exemptions do not place at risk 

plants of conservation concern, while 

exempting plants grown on a 

commercial scale. They are also 

designed to be consistent with existing 

and commonly understood definitions 

of the terms, as well as to be consistent 

with the provisions of the Lacey Act. 

To supplement these definitions, we 

will provide guidance in the form of a 

list of examples of plant taxa or 

commodities that qualify for exemption 

from the provisions of the Act as 

common cultivars and common food 

crops. USDA and DOI will develop and 

maintain this list on a Web site and 

update it when necessary. We will 

inform our stakeholders when the list is 

updated via email and other electronic 

media. We will also note updates of the 

list on APHIS’s Web site. This list will 

not be exhaustive, but we will provide 

an email address to which the public 

can send inquiries about specific taxa or 

commodities and request to add taxa or 

commodities to the list. 

Executive Order 12866 and Regulatory 

Flexibility Act 

This proposed rule has been 

determined to be significant for the 

purposes of Executive Order 12866 and, 

therefore, has been reviewed by the 

Office of Management and Budget. 

In accordance with the Regulatory 

Flexibility Act, we have analyzed the 

potential economic effects of this action 

on small entities. The analysis is 

summarized below. Copies of the full 

analysis are available by contacting the 

person listed under FOR FURTHER

INFORMATION CONTACT or on the 

Regulations.gov Web site (see 

ADDRESSES above for instructions for 

accessing Regulations.gov). 

Recent amendments to the Lacey Act 

expanded its protections to a broader 

range of plant species, extended its 

reach to encompass products, including 

timber, that derive from illegally 

harvested plants, and require that 

importers submit a declaration at the 

time of importation for certain plants 

and plant products. Common cultivars 

and common food crops are among the 

categorical exemptions to the provisions 

of the Act. The Act does not define the 

terms ‘‘common cultivar’’ or ‘‘common 

food crop,’’ but instead gives authority 

to the USDA and the DOI to define these 

terms by regulation. This proposed rule 

provides these definitions. 

To the extent that the proposed rule 

defines which products are exempted 

from the provisions of the Act, it would 

benefit U.S. importers, large and small. 

By defining the terms ‘‘common 

cultivar’’ and ‘‘common food crop,’’ the 

proposed rule would facilitate importer 

understanding of and compliance with 

the Act’s requirements. 

‘‘Common cultivar’’ and ‘‘common 

food crop’’ are defined in this proposed 

rule to ensure that the exemptions do 

not place at risk plants of conservation 

concern. The definitions are also 

consistent with the terms’ existing and 

commonly understood definitions. 

Since the terms have not previously 

been defined, there should be no 

instances in which an importer would 

be required because of this rule to make 

declarations for commodities that are 

not now being declared. In other words, 

the definitions presented in this rule 

and the related exemptions should not 

result in additional costs for importers 

based on their current activities. On the 

other hand, APHIS has estimated that 

about 5 percent of declarations being 

made under the current stage of phased 

in enforcement of the Act are either for 

common cultivars or common food 

crops that would be exempted under the 

proposed definitions. The costs incurred 

in making these declarations are a 

measure of the expected benefits of the 

rule. We estimate the total annual cost 

savings associated with these 

declarations alone would be between 

$900,000 and $2.8 million. Note that the 

full implementation of the declaration 

requirement would cover far more 

product categories than currently 

require a declaration. 

Executive Order 12988 

This proposed rule has been reviewed 

under Executive Order 12988, Civil 

Justice Reform. If this proposed rule is 

adopted: (1) All State and local laws and 


jdjones on DSK8KYBLC1PROD with PROPOSALS-1
Federal Register / Vol. 75, No. 149 / Wednesday, August 4, 2010 / Proposed Rules 46861 

regulations that are inconsistent with 

this rule will be preempted; (2) no 

retroactive effect will be given to this 

rule; and (3) administrative proceedings 

will not be required before parties may 

file suit in court challenging this rule. 

Paperwork Reduction Act 

This proposed rule contains no new 

information collection or recordkeeping 

requirements under the Paperwork 

Reduction Act of 1995 (44 U.S.C. 3501 et 

seq.). 

List of Subjects in 7 CFR Part 357 

Endangered and threatened species, 

Plants (Agriculture). 

Accordingly, we are proposing to 

amend Title 7, subtitle B, chapter III, of 

the Code of Federal Regulations as 

follows: 

1. A new part 357 is added to read as 

follows: 

PART 357—CONTROL OF ILLEGALLY 

TAKEN PLANTS 

Sec. 

357.1 Purpose and scope. 

357.2 Definitions. 

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

2.22, 2.80, and 371.2(d). 

§ 357.1 Purpose and scope. 

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

3371 et seq.), makes it unlawful to 

import, export, transport, sell, receive, 

acquire, or purchase in interstate or 

foreign commerce any plant, with some 

limited exceptions, taken in violation of 

any Federal, State, tribal, or foreign law 

that protects plants. The Lacey Act also 

makes it unlawful to make or submit 

any false record, account, or label for, or 

any false identification of, any plant 

covered by the Act. In addition, the Act 

requires that importers submit a 

declaration at the time of importation 

for certain plants and plant products. 

Common cultivars and common food 

crops are among the categorical 

exemptions to the provisions of the Act. 

The Act does not define the terms 

‘‘common cultivar’’ and ‘‘common food 

crop’’ but instead gives authority to the 

U.S. Department of Agriculture and the 

U.S. Department of the Interior to define 

these terms by regulation. The 

regulations in this part provide the 

required definitions. 

§ 357.2 Definitions. 

Common cultivar. A plant (except a 

tree) that: 

(a) Has been developed through 

selective breeding or other means for 

specific morphological or physiological 

characteristics; and 

(b) Is a species or hybrid that is 

cultivated on a commercial scale; and 

(c) Is not listed: 

(1) In an appendix to the Convention 

on International Trade in Endangered 

Species of Wild Fauna and Flora (27 

UST 1087; TIAS 8249); 

(2) As an endangered or threatened 

species under the Endangered Species 

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

(3) Pursuant to any State law that 

provides for the conservation of species 

that are indigenous to the State and are 

threatened with extinction. 

Common food crop. A plant that: 

(a) Has been raised, grown, or 

cultivated for human or animal 

consumption; and 

(b) Is a species or hybrid that is 

cultivated on a commercial scale; and 

(c) Is not listed: 

(1) In an appendix to the Convention 

on International Trade in Endangered 

Species of Wild Fauna and Flora (27 

UST 1087; TIAS 8249); 

(2) As an endangered or threatened 

species under the Endangered Species 

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

(3) Pursuant to any State law that 

provides for the conservation of species 

that are indigenous to the State and are 

threatened with extinction. 

Plant. Any wild member of the plant 

kingdom, including roots, seeds, parts 

or products thereof, and including trees 

from either natural or planted forest 

stands. 

Done in Washington, DC, this 26th day 

of July 2010. 

Ann Wright, 

Acting Under Secretary for Marketing and 

Regulatory Programs. 

[FR Doc. 2010–19098 Filed 8–3–10; 8:45 am] 

BILLING CODE 3410–34–S 

DEPARTMENT OF TRANSPORTATION 

Federal Aviation Administration 

14 CFR Part 39 

[Docket No. FAA–2009–1212; Directorate 

Identifier 2008–NM–167–AD] 

RIN 2120–AA64 

Airworthiness Directives; Airbus Model 

A330–200 and –300 Series Airplanes 

AGENCY: Federal Aviation 

Administration (FAA), DOT. 

ACTION: Supplemental notice of 

proposed rulemaking (NPRM); 

reopening of comment period. 

SUMMARY: We are revising an earlier 

NPRM for the products listed above. 

This action revises the earlier NPRM by 

expanding the scope. This proposed AD 

results from mandatory continuing 

airworthiness information (MCAI) 

originated by an aviation authority of 

another country to identify and correct 

an unsafe condition on an aviation 

product. The MCAI describes the unsafe 

condition as: 

* * * * * 

The airworthiness limitations applicable to 

the Certification Maintenance Requirements 

(CMR) are given in Airbus A330 ALS Part 3, 

which is approved by the European Aviation 

Safety Agency (EASA). 

The revision 02 of Airbus A330 ALS Part 

3 introduces more restrictive maintenance 

requirements and/or airworthiness 

limitations. Failure to comply with this 

revision constitutes an unsafe condition. 

* * * * * 

The unsafe condition is safetysignificant latent failures that would, in 

combination with one or more other 

specific failures or events, result in a 

hazardous or catastrophic failure 

condition. The proposed AD would 

require actions that are intended to 

address the unsafe condition described 

in the MCAI. 

DATES: We must receive comments on 

this proposed AD by August 30, 2010. 

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: U.S. Department of 

Transportation, Docket Operations, M– 

30, West Building Ground Floor, Room 

W12–40, 1200 New Jersey Avenue SE., 

Washington, DC, between 9 a.m. and 5 

p.m., Monday through Friday, except 

Federal holidays. 

For service information identified in 

this proposed AD, contact Airbus SAS— 

Airworthiness Office—EAL, 1 Rond 

Point Maurice Bellonte, 31707 Blagnac 

Cedex, France; telephone +33 5 61 93 36 

96; fax +33 5 61 93 45 80, e-mail 

airworthiness.A330–A340@airbus.com; 

Internet http://www.airbus.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. 

Examining the AD Docket 

You may examine the AD docket on 

the Internet at http:// 

www.regulations.gov; or in person at the 

Docket Operations office between 9 a.m. 


jdjones on DSK8KYBLC1PROD with PROPOSALS-1