Lacey Act Implementation Plan: De Minimis Exception, 12207-12213 [2020-04165]

Agencies

• DEPARTMENT OF AGRICULTURE
• Animal and Plant Health Inspection Service

[Federal Register Volume 85, Number 41 (Monday, March 2, 2020)]
[Rules and Regulations]
[Pages 12207-12213]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2020-04165]



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Federal Register / Vol. 85, No. 41 / Monday, March 2, 2020 / Rules 
and Regulations

[[Page 12207]]



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: Final 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 amending the regulations 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.

DATES: Effective April 1, 2020.

FOR FURTHER INFORMATION CONTACT: Mrs. Dorothy Wayson, Agriculturist, 
Permitting and Compliance Coordination, PPQ, APHIS, 4700 River Road 
Unit 60, Riverdale, MD 20737-1236; (301) 851-2036.

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 to collect information regarding 
the content of a shipment, which aids in combatting illegal trade in 
timber and timber products by ensuring importers provide required 
information. 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 
requirement is intended to apply to imported products that contain 
minimal plant material. This final rule establishes limited exceptions 
to the declaration requirement for entries of products containing 
minimal plant material. This action relieves 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 sections 3372(f), 3373, and 3374 of this title.''

Summary of Major Provisions of the Regulatory Action

    This final rule establishes certain exceptions from the requirement 
that a declaration be filed when importing certain plants and plant 
products. Specifically, it establishes an exception to the declaration 
requirement for products with minimal amounts of plant material. The 
final rule also establishes 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 provide additional context for the exceptions.

Costs and Benefits

    To the extent that the rule provides exceptions to declaration 
submission, it will benefit certain U.S. importers. It relieves 
importers of the burden of submitting declarations for products with 
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, makes 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. 
Information from the declaration is also used to monitor compliance 
with Lacey Act prohibitions. 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 July 9, 2018, we published in the Federal Register (83 FR 31697-
31702, Docket No. APHIS-2013-0055) a

[[Page 12208]]

proposal \1\ to amend the regulations by establishing an exception to 
the declaration requirement for products containing a minimal amount of 
plant materials. We also proposed that all Lacey Act declarations be 
submitted within 3 business days of importation.
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    \1\ To view the proposed rule, supporting document, and the 
comments we received, go to https://www.regulations.gov/#!docketDetail;D=APHIS-2013-0055.
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    We solicited comments concerning our proposal for 60 days ending 
September 7, 2018. We received 11 comments by that date. They were from 
private citizens, trade and industry associations, courier delivery 
services, and conservation groups. They are discussed below by topic.

Scope

    Two commenters stated that it is unclear from the rule if the 
exceptions to the declaration requirement would apply only to those 
products on the Lacey enforcement schedule or if they would apply to 
all products, and asked that we clarify the scope of the proposed rule.
    The de minimis exception to the declaration requirement will apply 
to all products subject to the Lacey Act. Importers of articles 
currently listed on the Lacey Act enforcement schedule will receive the 
most immediate benefit from the exception.\2\
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    \2\ The Lacey Act plant declaration enforcement schedule can be 
viewed on the APHIS website at https://www.aphis.usda.gov/plant_health/lacey_act.
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    Another commenter stated that the economic analysis must consider 
the full scope of the proposal and not just current practice. The same 
commenter added that the Animal and Plant Health Inspection Service 
(APHIS) only considered the impact on importers and wholesalers, noting 
that it is common for manufacturers, retailers, and distributors to 
also directly import wood products.
    Impacts of the exception to the declaration requirement for 
articles currently listed on the Lacey Act enforcement schedule were 
evaluated in the initial regulatory impact analysis. We have prepared a 
final regulatory impact analysis for this rule in which we evaluate 
potential impacts of the de minimis exception to the declaration 
requirement for articles currently in the enforcement schedule. The de 
minimis exception will not immediately impact articles that are not yet 
on the enforcement schedule because they do not currently require 
submission of a declaration. Impacts on manufacturers and retailers are 
included in the Regulatory Impact Analysis & Final Regulatory 
Flexibility Analysis supporting this rule. A summary of the analysis 
appears below under the heading ``Executive Orders 12866, 13563, 13771, 
and Regulatory Flexibility Act.'' Copies of the full analysis are 
available on the Regulations.gov website (see footnote 1 in this 
document for a link to Regulations.gov) or by contacting the person 
listed under FOR FURTHER INFORMATION CONTACT. For the sake of clarity, 
the term ``importer'' is used to represent import agents, as well as 
wholesalers, manufacturers, retailers, and distributors who import 
products directly.

Definitions

    We proposed 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.
    Some commenters expressed concern that the definition of import 
that we proposed is too broad. These commenters stated that adopting 
this definition would increase regulatory burden on importers and place 
burden on individuals traveling with their musical instruments. The 
commenters stated that the declaration requirement should apply only to 
formal consumption entries, and not to informal entries, personal 
importations, transit and exportation customs bonds, carnet 
importations, foreign trade zones, and warehouse entries (with some 
exceptions). Two commenters stated that APHIS should align the 
definition of import with the customs definition.
    The definition of import that we proposed is the same as the 
definition in the Lacey Act. In a notice published in the Federal 
Register on February 3, 2009 (74 FR 5911, Docket No. APHIS-2008-
0119),\3\ we stated that we would be enforcing the declaration 
requirement only for formal consumption entries (i.e., most commercial 
shipments). In that notice we also stated that we did not intend yet to 
enforce the declaration requirement for informal entries (i.e., most 
personal shipments), personal importations, 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), or upon admittance into a U.S. 
foreign trade zone or bonded warehouse. We clarified that the 
declaration is currently being enforced for all formal consumption 
entries of plant and plant products into the United States, including 
those entries from foreign trade zones and bonded warehouses, in a 
notice published in the Federal Register on June 16, 2016 (81 FR 39247-
39248, Docket No. APHIS-2008-0119).
---------------------------------------------------------------------------

    \3\ To view the notice and the comments we received, go to 
https://www.regulations.gov/#!docketDetail;D=APHIS-2008-0119.
---------------------------------------------------------------------------

    Some commenters stated that there should be an exception to the 
declaration requirement for items in transit. One commenter stated 
further that such an exception is supported by the definition of import 
suggested by the Model Law of International Trade in Wild Fauna and 
Flora.\4\
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    \4\ The Model Law can be viewed online at https://cites.org/sites/default/files/eng/prog/Legislation/E-Model%20law-updated-clean.pdf.
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    As we explained above, the definition of import that we proposed is 
the same definition that appears in the Lacey Act, and we have stated 
that we do not intend at this time to enforce the declaration 
requirement for in-transit movements.
    One commenter noted that the current declaration form asks for 
``country of harvest'' rather than ``the name of the country from which 
the plant was taken'' and suggested adding a definition of taken to 
prevent confusion.
    APHIS notes that the term taken is defined in 16 U.S.C. 3371(j). We 
agree with the commenter that a definition of taken, consistent with 
the language of the Act, should be added to the regulations. We have 
therefore added a definition of taken to read ``captured, killed, or 
collected, and with respect to a plant, also harvested, cut, logged, or 
removed'' to Sec.  357.2. This definition is the same definition that 
appears in the Act.

Declaration Requirement

    We proposed 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 provide additional context for the 
proposed exceptions.
    One commenter asked for clarification that this section does not 
require fewer fields than appear on the declaration form.
    The information specified in this section is the same information 
that is required by the Act. We continue to require additional 
information on the declaration form that links the declaration to the 
shipment. This is necessary to carry out the provisions of the Lacey 
Act. If we make any changes to the declaration form in the future, we 
will announce them through the stakeholder registry after receiving any 
necessary approvals under the

[[Page 12209]]

Paperwork Reduction Act. We encourage interested persons to register 
for our stakeholder registry at https://public.govdelivery.com/accounts/USDAAPHIS/subscriber/new/ and select ``Lacey Act Declaration'' 
under Plant Health Information as a topic of interest.
    One commenter stated that the section should list the current 
enforcement schedule or reference the existence of a separate 
enforcement schedule in another section of the regulations.
    The enforcement schedule is available on the APHIS website at 
https://www.aphis.usda.gov/plant_health/lacey_act. The list is arranged 
by provisions of the Harmonized Tariff Schedule of the United States 
(HTSUS). Adding the enforcement schedule to the regulations is not 
feasible because HTSUS provisions change frequently. However, we agree 
with the commenter that a reference to available guidance, including 
the enforcement schedule, in the regulations would be helpful, and have 
amended Sec.  357.3 to add a new paragraph that directs the reader to 
the APHIS website for more information. Any new guidance or enforcement 
schedule, or modifications to a previous guidance or enforcement 
schedule document, will be issued with appropriate public notice and 
opportunity for feedback.

Exception From Declaration Requirement for Entries Containing Minimal 
Plant Materials

    We sought public comment on two options with respect to a de 
minimis exception to the declaration requirement. Under the first 
option, we proposed 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 proposed 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 invited 
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 could not be determined, we proposed 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 could not be determined, we proposed 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. We invited comment on what 
would be an appropriate maximum amount allowable by value or board feet 
under the de minimis exception.
    The commenters were generally supportive of the idea of 
establishing a de minimis exception from the plant declaration 
requirement for products with minimal amounts of plant material. These 
commenters stated that whatever approach is adopted, it should be 
simple, straightforward, and affordable for small and medium entities.
    One commenter suggested that we adopt a conservative approach to 
any exceptions so as not to exempt future product categories that 
include illegal timber even in small quantities.
    APHIS agrees with the commenter. Although importers will still be 
responsible for meeting Lacey Act requirements other than the 
declaration, setting the threshold for the de minimis exception to the 
declaration requirement at too high a level would not be consistent 
with the intent of the Lacey Act. For this reason we proposed and are 
adopting a threshold of 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 products in the same 10-digit HTSUS 
provision does not exceed 2.9 kilograms.
    One commenter stated that the declaration skews the volume figures 
because importers take different approaches to the reporting 
requirements. The commenter stated that some importers split the volume 
among possible species, while others report the maximum volume possible 
for each species. The same commenter also stated that for the value 
option, it is unclear how such a calculation would be made as the value 
of the imported item is known, but the value of the plant product prior 
to its incorporation into a final product may not be known.
    We agree with the commenter that implementation of de minimis 
exceptions based on volume or value would present challenges. We have 
therefore decided not to implement de minimis exceptions based on 
volume or value at this time. We will continue to consider ways to 
implement de minimis exceptions based on criteria other than weight to 
the plant declaration requirement.
    One commenter stated that they supported modified versions of the 
proposed weight and volume exceptions with fixed and measurable weight 
and volume limits per entry line. The commenter suggested that there 
also be a value threshold that works in tandem with either of the 
options (weight or volume) chosen to qualify for the de minimis 
exception.
    APHIS agrees that these modifications could provide an effective 
way to implement de minimis exceptions and will consider them if we 
propose additional exceptions in the future. One commenter supported 
providing multiple options to importers to determine if their product 
meets the threshold requirement (i.e., weight and value). The commenter 
stated that as proposed, the regulations would only allow importers to 
choose the second method of calculation if the first method cannot be 
calculated. The commenter suggested that we should provide importers 
with discretion to choose whichever option that makes most sense for 
their business operations. As noted above, we have decided to implement 
only the de minimis exception based on weight at this time. We will 
take these suggestions into consideration if we propose additional 
exceptions in the future.
    Commenters expressed concern that using percentage of weight would 
be a new process that importers would have to develop in order to take 
advantage of the de minimis exception.
    The commenters are correct that they may have to develop a new 
process to take advantage of the de minimis exception. We anticipate, 
however, that once importers have determined the percentage weight of 
an individual

[[Page 12210]]

product unit and the maximum number of individual product units that 
will meet the de minimis threshold, they will be able to use that as a 
model for future shipments. We also anticipate that importers will only 
develop a new process if they consider doing so to be less onerous than 
filing the declaration.
    One commenter stated that the cost of any procedure that depends on 
trying to calculate the percentage of plant material as part of the 
importing process on a transaction-by-transaction basis would far 
outweigh any benefit gained from the proposed change and suggested that 
APHIS allow importers to register their standard products that meet the 
de minimis criteria, and in return APHIS would grant a blanket 
exception for that set of products. Another commenter supported the use 
of what they described as ``representative samples'' so that an 
importer could use that analysis on multiple entries eliminating the 
need for complex calculations on each and every entry.
    As we explained above, we expect that once importers determine the 
percentage weight for individual product units, they will be able to 
use that as a model for future shipments. With respect to registering 
representative samples or granting blanket exceptions, APHIS has 
concerns that such measures could be difficult to enforce and are not 
being pursued at this time.
    One commenter expressed support for the current exceptions from the 
declaration requirement for packaging material. The commenter stated 
that APHIS should retain these exceptions and make it clear that the 
requirements have not changed from current guidance.
    APHIS notes that for purposes of the Lacey Act plant declaration 
requirement, packaging material is any material used to support, 
protect, or carry another item. This includes, but is not limited to, 
items such as wood crating, wood pallets, cardboard boxes, and packing 
paper used as cushioning. Under 16 U.S.C. 3372(f)(3), packaging 
material is excluded from the declaration requirement unless the 
packaging material itself is the item being imported. This is unchanged 
by this final rule.
    It may take some time for the de minimis exception to be 
implemented in ACE. APHIS will announce the availability of the 
disclaim code through the stakeholder registry, and importers may begin 
using the disclaim code for the de minimis exception as soon as it is 
available in ACE.

Time Limit for Submission of Declarations

    Lacey Act plant declarations are required pursuant to the language 
of the statute ``upon importation,'' that is, upon landing in United 
States jurisdiction. We proposed to allow importers to file Lacey Act 
plant declarations within 3 business days of importation without facing 
any enforcement action or penalty for late filing. This change was 
intended to accommodate the needs of industry while ensuring that 
declarations are submitted in a timely manner for the purposes of the 
statute.
    Commenters were generally opposed to establishing a 3-day grace 
period. One commenter stated that allowing this grace period was 
contrary to the statute. Several commenters stated that allowing 
importers to file declarations within 3 days constituted establishing a 
new deadline where one did not exist before. Some commenters suggested 
setting longer time frames for the submissions of the declaration, 
either to correspond with customs regulations or to allow for 
administrative corrections.
    As we explained above, Lacey Act plant declarations are required to 
be filed upon landing in United States jurisdiction. Allowing importers 
to file declarations within 3 days would have established a grace 
period, not a new deadline. However, after considering the comments we 
received, we believe it is necessary to reexamine the establishment of 
a grace period and therefore are not adopting this aspect of the 
proposed rule at this time. We note that there are already mechanisms 
in place to allow importers to submit corrections to declarations. 
These mechanisms vary depending on which method of submission was used.

Miscellaneous

    Some commenters expressed concern that establishing a de minimis 
exception to the Lacey Act plant declaration requirement would increase 
the risk of plant pests and diseases being introduced into the United 
States.
    As we explained in the proposed rule, the intent of the Lacey Act 
is to prevent trade in illegally taken wildlife or plants. APHIS' 
authority to enforce the Lacey Act plant declaration requirement is 
distinct from our authority to regulate the movement of plant pests, 
noxious weeds, plants, plant products, and articles capable of 
harboring plant pests or noxious weeds in interstate commerce or 
foreign commerce under the Plant Protection Act (7 U.S.C. 7701 et seq.) 
We are making no changes to the plant protection regulations in this 
final rule.
    One commenter stated that APHIS should maintain the current 
exception from the declaration requirement for composite plant material 
that acknowledges the need to conduct reasonable due care without 
mandating the tracking and reporting of species. Another commenter 
noted that there is currently an administrative Special Use Designation 
for composite material and stated that establishing de minimis 
exceptions for composite products would be more complex and costly than 
continuing to use the administrative designation.
    APHIS notes that the provisions of the Act do not include permanent 
exceptions from the declaration requirement for composite products. On 
July 9, 2018, we published in the Federal Register an advance notice of 
proposed rulemaking (83 FR 31702-31704, Docket No. APHIS-2018-0017) \5\ 
seeking public comment on regulatory options that could address certain 
issues that have arisen with the implementation of the declaration 
requirement for composite plant materials. The concerns and 
recommendations of all the commenters will be considered if any new 
proposed regulations regarding the Lacey Act plant declaration are 
developed for composite materials.
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    \5\ To view the advance notice of proposed rulemaking and the 
comments we received, go to https://www.regulations.gov/#!docketDetail;D=APHIS-2018-0017.
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    One commenter recommended that we specifically include 
``hardboard'' among the examples of composite plant materials.
    We do not reference such examples in the proposed rule, but in the 
advance notice of proposed rulemaking we refer to ``pulp, paper, 
paperboard, medium density fiberboard, high density fiberboard, and 
particleboard.''
    A commenter stated that the final rule should include explicit 
provisions providing ample lead time of 1 year or longer for 
implementation by the regulated industry based on the complexity of 
product supply chains.
    In our February 2009 notice, we committed to providing affected 
individuals and industry with at least 6 months' notice for any 
products that would be added to the phase-in schedule. The phased-in 
enforcement schedule began April 1, 2009. The most recent phase (V) 
began on August 6, 2015. The enforcement schedule is available on the 
APHIS website at https://www.aphis.usda.gov/plant_health/lacey_act/.

[[Page 12211]]

    Therefore, for the reasons given in the proposed rule and in this 
document, we are adopting the proposed rule as a final rule, with the 
changes discussed in this document.

Executive Orders 12866, 13563, 13771, and Regulatory Flexibility Act

    This final 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 final rule 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 a final 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 on the Regulations.gov 
website (see footnote 1 in this document for a link to Regulations.gov) 
or by contacting the person listed under FOR FURTHER INFORMATION 
CONTACT.
    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 establishing an exception to the declaration requirement for 
products containing a minimal amount of plant material.
    This rule will benefit certain U.S. importers, large or small. The 
provisions of this rule relieve importers of the burden of submitting 
declarations for products containing very small amounts of plant 
material and 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 is currently being enforced for products in parts of 
the Harmonized Tariff Schedule of the United States (HTSUS) Chapters 
44, 66, 82, 92, 93, 94, 95, 96 and 97. Products in parts of HTSUS 
Chapters 33, 42, 44, 92 and 96 are to be included in the next phase of 
implementation.
    Some importers of products containing a minimal amount of plant 
material who have been required to file declarations upon importation 
of their products will be excepted from the declaration requirement. 
The cost savings from not having to file those declarations is one 
measure of the expected benefits of this rule. In 2018, there was an 
average of about 400 weekly shipments of commodities requiring 
declarations that contained amounts of plant material that possibly 
would have been eligible for de minimis status under this rule. Based 
on information available on those shipments, we estimate that between 
10 and 20 percent of those commodities would have actually met the 
definition for de minimis exception. Had those commodity shipments not 
needed to be accompanied by declarations, we estimate the annual cost 
savings for affected entities would have ranged in total from a low of 
about $31,800 to a high of about $229,500, with annual government 
processing savings of between about $250 and $500.
    In addition, we estimate that in 2018 about 1,300 weekly shipments 
of commodities contained amounts of plant material that possibly would 
have been eligible for de minimis status under the next phase of 
declaration enforcement. The cost savings for affected entities 
associated with those products would have ranged from about $103,300 to 
$745,900, with annual government processing savings of between about 
$800 and $1,600. In accordance with guidance on complying with 
Executive Order 13771, the primary estimate of the annual private 
sector cost savings, including those expected to be realized under the 
next phase of enforcement, is $555,300. This value is the mid-point 
estimate of cost savings annualized in perpetuity using a 7 percent 
discount rate.
    The total cost of compliance directly associated with the 
collection, compilation and submission of declarations currently 
enforced is estimated to be between $12.5 million and $45 million, and 
between $5 million and $18.2 million under the next phase of 
enforcement. The total estimated reduction in compliance costs under 
both the current and next phase of enforcement ranges from about 
$135,100 to about $975,400, representing an overall cost savings of 
between 0.8 and 1.5 percent.
    Both the declaration costs and the cost savings expected with this 
rule are small when compared to the value of the commodities imported. 
In 2018, the value of U.S. imports of products currently requiring a 
declaration totaled about $23.4 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 $3.2 billion. In 2018, the 
value of imported commodities that will be included in the next phase 
of enforcement and may contain small amounts of plant material was $2.6 
billion.
    Because enforcement of the declaration requirement is being phased 
in, some products that meet the de minimis criteria do not currently 
require a declaration; their importation will 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 HTSUS code are not part of 
the current enforcement schedule. While the volume of imported 
commodities for which the exceptions will be applicable could be large, 
the cost savings for affected importers are expected to be small 
relative to the value of the commodities. Regardless of the number of 
declaration exceptions for which an entity qualifies, those exceptions 
will benefit affected entities, large and small.

Executive Order 12372

    This program/activity is listed in the Catalog of Federal Domestic 
Assistance under No. 10.025 and is subject to Executive Order 12372, 
which requires intergovernmental consultation with

[[Page 12212]]

State and local officials. (See 2 CFR chapter IV.)

Executive Order 12988

    This final rule has been reviewed under Executive Order 12988, 
Civil Justice Reform. This rule: (1) Preempts all State and local laws 
and regulations that are inconsistent with this rule; (2) has no 
retroactive effect; and (3) does not require administrative proceedings 
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 13175, ``Consultation and Coordination with Indian 
Tribal Governments.'' Executive Order 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 their knowledge, have Tribal 
implications that require Tribal consultation under Executive Order 
13175. The USDA's Office of Tribal Relations (OTR) has assessed the 
impact of this rule on Indian tribes and determined that Tribal 
consultation under Executive Order 13175 is not required. If a Tribe 
requests consultation, APHIS will work with the OTR to ensure 
meaningful consultation is provided where changes, additions, and 
modifications identified herein are not expressly mandated by Congress.

Congressional Review Act

    Pursuant to the Congressional Review Act (5 U.S.C. 801 et seq.), 
the Office of Information and Regulatory Affairs designated this rule 
as not a major rule, as defined by 5 U.S.C. 804(2).

Paperwork Reduction Act

    In accordance with section 3507(d) of the Paperwork Reduction Act 
of 1995 (44 U.S.C. 3501 et seq.), the information collection 
requirements included in this final 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 rule, please contact Mr. Joseph Moxey, 
APHIS' Information Collection Coordinator, at (301) 851-2483.

List of Subjects in 7 CFR Part 357

    Endangered and threatened species, Plants (agriculture).

    Accordingly, we are amending 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.  [thinsp]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 in alphabetical order definitions for ``Import'' and 
``Person'';
0
b. By revising the definition of ``Plant''; and
0
c. By adding in alphabetical order a definition for ``Taken''.
    The additions and revision read as follows:


Sec.  [thinsp]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:
    (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.
    Taken. Captured, killed, or collected, and with respect to a plant, 
also harvested, cut, logged, or removed.
* * * * *

0
4. Sections 357.3 and 357.4 are added to read as follows:


Sec.  [thinsp]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

[[Page 12213]]

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.
    (c) Guidance on completion and submission of the declaration form 
can be found on the APHIS website at https://www.aphis.usda.gov/plant_health/lacey_act.

(Approved by the Office of Management and Budget under control number 
0579-0349)


Sec.  [thinsp]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 products in 
the same 10-digit provision of the Harmonized Tariff Schedule of the 
United States does not exceed 2.9 kilograms.
    (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.

    Done in Washington, DC, this 24th day of February 2020.
 Greg Ibach,
 Under Secretary for Marketing and Regulatory Programs.
[FR Doc. 2020-04165 Filed 2-28-20; 8:45 am]
BILLING CODE 3410-34-P