Lacey Act Implementation Plan: De Minimis Exception, 31697-31702 [2018-14630]

Agencies

• DEPARTMENT OF AGRICULTURE
• Animal and Plant Health Inspection Service

[Federal Register Volume 83, Number 131 (Monday, July 9, 2018)]
[Proposed Rules]
[Pages 31697-31702]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2018-14630]


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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.

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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 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 https://www.regulations.gov/#!docketDetail;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 https://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

[[Page 31698]]

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.
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    \1\ To view the advance notice of proposed rulemaking and the 
comments we received, go to https://www.regulations.gov/#!docketDetail;D=APHIS-2010-0129.
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    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

[[Page 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 Sec.  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

[[Page 31700]]

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

[[Page 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

0
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).

0
2. Section 357.1 is revised to read as follows:


Sec.  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.
0
3. Section 357.2 is amended as follows:
0
a. By adding definitions for Import and Person in alphabetical order; 
and
0
b. By revising the definition for Plant.
    The additions and revision read as follows:


Sec.  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:

[[Page 31702]]

    (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.
* * * * *
0
4. Section 357.3 is added to read as follows:


Sec.  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)

0
5. Section 357.4 is added to read as follows:


Sec.  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.
0
6. Section 357.5 is added to read as follows:


Sec.  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