Implementation of Revised Lacey Act Provisions, 5911-5913 [E9-2232]

Agencies

• DEPARTMENT OF AGRICULTURE
• Animal and Plant Health Inspection Service

[Federal Register Volume 74, Number 21 (Tuesday, February 3, 2009)]
[Notices]
[Pages 5911-5913]
From the Federal Register Online via the Government Printing Office [www.gpo.gov]
[FR Doc No: E9-2232]


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Federal Register / Vol. 74, No. 21 / Tuesday, February 3, 2009 / 
Notices

[[Page 5911]]



DEPARTMENT OF AGRICULTURE

Animal and Plant Health Inspection Service

[Docket No. APHIS-2008-0119]


Implementation of Revised Lacey Act Provisions

AGENCY: Animal and Plant Health Inspection Service, USDA.

ACTION: Notice.

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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; however, enforcement of the declaration 
requirement will be phased in and will begin on April 1, 2009 (unless 
the implementation date must be delayed slightly for technical reasons 
as described below). The purpose of this notice is to inform the public 
of the Federal Government's revised plan to phase in enforcement of the 
declaration requirement and other implementation plans.

DATES: We will consider all comments that we receive on or before April 
6, 2009.

ADDRESSES: You may submit comments by either of the following methods:
     Federal eRulemaking Portal: Go to https://
www.regulations.gov/fdmspublic/component/
main?main=DocketDetail&d=APHIS-2008-0119 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-2008-0119, Regulatory Analysis and 
Development, PPD, APHIS, Station 3A-03.8, 4700 River Road Unit 118, 
Riverdale, MD 20737-1238. Please state that your comment refers to 
Docket No. APHIS-2008-0119.
    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 https://www.aphis.usda.gov.

FOR FURTHER INFORMATION CONTACT: Mr. Alex Belano, Assistant Branch 
Chief, Commodity Import Analysis and Operations, PPQ, APHIS, 4700 River 
Road Unit 133, Riverdale, MD 20737-1231; (301) 734-8758.

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). 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 the laws of a U.S. State 
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 (16 U.S.C. 3372), makes it unlawful 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 where the plant was harvested. For paper and 
paperboard products containing recycled content, the declaration also 
must include the average percent of recycled content without regard for 
species or country of harvest.

Comment Analysis

    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 provided dates and products covered for the first three 
phases of enforcement. We solicited comment on the proposed phase-in 
plan for 60 days ending on December 8, 2008, and received 124 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/
industry, and enforcement issues. While we will not provide specific 
responses to comments in this notice, we have revised the phase-in 
schedule based on the comments we received. Comments related to other 
aspects of our implementation plan for the declaration requirement are 
still being analyzed and those comments will be taken into account as 
we continue to implement the provisions related to the declaration 
requirement of the Lacey Act.

Revised Phase-in Schedule

    After review of the comments received and further internal 
consideration, we have revised the phase-in schedule, which covers the 
period from December 15, 2008, to September 30, 2010. We have extended 
the length of each phase from 3 months to 6 months and provided an 
affirmative list of products that fall within each phase of enforcement 
of the declaration requirement. We revised the schedule by phasing in 
products largely based on their degree of processing and complexity of 
their composition. For example, phase II contains products that are 
minimally processed and/or of less complicated composition (e.g., wood 
in the rough, sheets for veneering). Phase III contains products that 
are more processed and of more complex composition (e.g., wood pulp and 
particle board). Finally, phase IV includes more highly processed 
products composed of materials from phases II and III (e.g., paper and

[[Page 5912]]

furniture). We continue to consider the applicability of the 
declaration requirement to products not included in the current phase-
in schedule and we invite public comment on how the declaration 
requirement should be enforced as to these products.
    The proposed phased enforcement schedule through September 30, 
2010, is described in the table below. It is important to note that 
while enforcement of the declaration requirement will be phased in and 
will begin no earlier than April 1, 2009, the other Lacey Act 
amendments are already effective, and actions to enforce provisions of 
the Act other than the declaration requirement may be taken at any 
time. We invite public comment particularly on the products covered 
under phases III and IV of the revised plan, as well as on whether any 
additional Harmonized Tariff Schedule (HTS) chapters should be included 
in the current phase-in schedule.

  Phase-In Schedule of Enforcement of the Declaration Requirement for Goods of, or Containing, Plants or Plant
                                                   Products *
----------------------------------------------------------------------------------------------------------------
                                       II April 1, 2009-        III October 1, 2009-        IV April 1, 2010-
       I Present-March 2009            September 30, 2009          March 31, 2010          September 30, 2010
----------------------------------------------------------------------------------------------------------------
PPQ Plant Import Declaration Form  HTS Chapters:              HTS Chapters:             HTS Chapters:
 will be available on Web site,
 and accepted after December 15,
 2008.
Domestic and International         Ch. 44 Headings (wood &    Ch. 44 Headings (wood &   Ch. 44 Headings (wood &
 Outreach.                          articles of wood).         articles of wood).        articles of wood).
                                                                                        4421--(Articles of wood,
                                                                                         nesoi).
                                      4401--(Fuel wood).....     4402--(Wood charcoal)  Ch. 48 Headings (paper &
                                                                                         articles of).
                                      4403--(Wood in the         4405--(Wood wool          4801--(Newsprint).
                                       rough).                    [excelsior]).
                                      4404--(Hoopwood;           4410--(Particle           4802--(Uncoated
                                       poles, piles, stakes).     board).                   writing paper).
                                      4406--(Railway or          4411--(Fiberboard of      4803--(Toilet or
                                       tramway sleepers).         wood).                    facial tissue
                                                                                            stock).
                                      4407--(Wood sawn or        4412--(Plywood,           4804--(Uncoated kraft
                                       chipped lengthwise).       veneered panels).         paper).
                                      4408--(Sheets for          4413--(Densified          4805--(Other uncoated
                                       veneering).                wood).                    paper and board).
                                      4409--(Wood                4414--(Wooden frames)     4806--(Vegetable
                                       continuously shaped).                                parchment, etc.).
                                      4417--(Tools, tool         4415--(Packing cases,     4807--(Composite
                                       handles, broom             boxes, crates,            paper and board).
                                       handles).                  drums).
                                      4418--(Builders'           4416--(Casks,             4808--(Corrugated
                                       joinery and carpentry      barrels, vats, tubs).     paper and board).
                                       of wood).
                                                                 4419--(Tableware &        4809--(Carbon paper).
                                                                  kitchenware, of
                                                                  wood).
                                                                 4420--(Wood               4810--(Coated paper
                                                                  marquetry; caskets;       and board).
                                                                  statuettes).
                                                              Ch. 47 Headings (wood        4811--(paper coated,
                                                               pulp).                       etc., other than
                                                                                            4803, 4809, or
                                                                                            4810).
                                                                 4701--(Mechanical      Ch. 94 Headings
                                                                  wood pulp).            (furniture, etc.).
                                                                 4702--(Chemical wood      940169 (seats with
                                                                  pulp, dissolving).        wooden frames).
                                                                 4703--(Chemical wood      940330 (wooden office
                                                                  pulp, sulfate).           furniture).
                                                                 4704--(Chemical wood      940340 (wooden
                                                                  pulp, sulfite).           kitchen furniture).
                                                                 4705--(Combination        940350 (wooden
                                                                  mechanical and            bedroom furniture).
                                                                  chemical).
                                                                                           940360 (other wooden
                                                                                            furniture).
                                                                                           94039070 (wooden
                                                                                            furniture parts).
                                                              PLUS PHASE II...........  PLUS PHASES II & III.
----------------------------------------------------------------------------------------------------------------
* Declaration requirements are effective as of December 15, 2008. All declarations submitted must be accurate;
  false statements may be referred for enforcement. Failure to submit a declaration will not be prosecuted, and
  customs clearance will not be denied for lack of a declaration until after the phase-in date above.

    With respect to the declaration requirement, the Federal 
enforcement agencies do not intend to refer for enforcement entries of 
products in HTS chapters not listed in the above phase-in schedule, 
during the respective timeframes, unless APHIS publishes another notice 
in the Federal Register announcing an amended implementation plan. Any 
such changes/additions would apply only to phases III or IV. There will 
be no further

[[Page 5913]]

changes to phase II. Should there be additions to phases III or IV, we 
intend to provide at least 6 months' notice to persons and industries 
affected by those changes to facilitate compliance with the new 
requirements. Changes will be announced in the Federal Register.
    The Federal Government will conduct studies in order to inform 
implementation of the amended Lacey Act, including with respect to 
products under HTS headings not listed in the current phase-in 
schedule. In addition, consistent with the requirements of the statute, 
we will review our experience with implementation and make decisions, 
including promulgating regulations, to guide any further phase in of 
the declaration requirement.

Applicability of the Declaration Requirement

    At present, we will be enforcing the declaration requirement only 
as to formal consumption entries (i.e., most commercial shipments). 
Also at this time, we do not intend to enforce the declaration 
requirement for informal entries (i.e., most personal shipments), 
personal importations, or mail (unless subject to formal entry), 
transportation and exportation entries, in-transit movements, carnet 
importations (i.e., merchandise or equipment that will be re-exported 
within a year), and foreign trade zone and warehouse entries; however, 
we welcome public comment on enforcement of the declaration requirement 
with regard to those types of entries. Further, we will only enforce a 
declaration for the product being imported and not for sundries that 
ordinarily accompany the product (e.g., tags, labels, manuals, and 
warranty cards).

Declaration Form

    A printable declaration form is currently available for voluntary 
submission on the Internet at https://www.aphis.usda.gov/plant_health/
lacey_act/index.shtml or from the person listed under FOR FURTHER 
INFORMATION CONTACT. You may submit completed declaration forms by mail 
to: The Lacey Act, c/o U.S. Dept of Agriculture, Box 10, 4700 River 
Road, Riverdale, MD 20737.
    As indicated previously, we intend to collect the data required by 
the amended Lacey Act electronically and anticipate the majority of 
importers will not need to submit a paper declaration form. No agencies 
with Lacey Act enforcement authority will bring prosecutions or 
forfeiture actions for failing to complete the paper declaration form 
before April 1, 2009; however, if any person submits a form and it 
contains false information, they may be prosecuted. We also invite 
public comment on the paper declaration form. Comments related to the 
content of the declaration form should be submitted by one of the 
methods provided under the heading ADDRESSES at the beginning of this 
notice and not to the Lacey Act mailbox. In accordance with the 
Paperwork Reduction Act of 1995 (44 U.S.C. 3501 et seq.), APHIS 
requested and received the Office of Management and Budget's emergency 
approval to collect information that the Lacey Act requires importers 
to include in the declaration and that is not already being collected 
for other purposes. The emergency approval is valid for 6 months and 
allowed us to collect the information and make the paper form available 
for immediate use. On January 5, 2009, we published an information 
collection notice in the Federal Register (74 FR 259-260, Docket No. 
APHIS-2008-0136) soliciting comments from the public (as well as 
affected agencies) on these information collection requirements and 
requesting an extension of the 6-month emergency approval.

Availability of Electronic System

    The Department of Homeland Security's Bureau of Customs and Border 
Protection (CBP) already collects some of the information that the 
Lacey Act amendments require importers to include in their 
declarations. CBP is currently modifying its Automated Commercial 
System (ACS) to collect the remaining data required to be declared. As 
noted in our October 2008 Federal Register notice, we intend to begin 
enforcement of the declaration requirements upon completion of those 
modifications. At this time, CBP still anticipates completing the 
changes to the system by April 1, 2009, and phase II remains scheduled 
to begin on April 1, 2009. If there are any changes to that date, we 
will notify the public through a Federal Register notice.

Additional Information

    APHIS will continue to provide the latest information regarding the 
Lacey Act on our Web site, https://www.aphis.usda.gov. The Web site 
currently contains the Lacey Act, as amended; a slideshow covering 
background and context, new requirements, commodities and products 
covered, information on prohibitions, and the current status of 
implementation of the declaration requirement of the Lacey Act; 
frequently asked questions; the phase-in implementation plan; and the 
paper declaration form. The Web site will be updated as new materials 
become available. We encourage persons interested in receiving timely 
updates on APHIS's Lacey Act efforts to register for our stakeholder 
registry at https://web01.aphis.usda.gov/PPQStakeWeb2.nsf and select 
``Lacey Act Declaration'' as a topic of interest.

    Done in Washington, DC, this 29th day of January 2009.
William H. Clay,
Acting Administrator, Animal and Plant Health Inspection Service.
 [FR Doc. E9-2232 Filed 1-29-09; 4:15 pm]
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