APHIS Sends Lacey Act Definitions Proposed Rule to OMB for Approval
The Animal and Plant Health Inspection Service has asked the Office of Management and Budget to review and approve its proposed rule to establish definitions for the terms “common cultivar” (except trees) and “common food crop”, which are among the categorical exemptions to the Lacey Act Amendments requirements.
Sign up for a free preview to unlock the rest of this article
If your job depends on informed compliance, you need International Trade Today. Delivered every business day and available any time online, only International Trade Today helps you stay current on the increasingly complex international trade regulatory environment.
APHIS states that these proposed definitions will clarify which plants1 and plant products are subject to the provisions of the amended Act, including the declaration requirement for imported plants and plant products.
Target Publication Date for Proposed Rule is August 2010
According to OMB’s announcement on APHIS’ filing of the proposed rule, its target date for publication is August 2010, with comments due in October 2010.
(The Lacey Act (16 USC 3371 et seq.) combats trafficking in “illegal” wildlife, fish, or plants. The Food, Conservation, and Energy Act of 2008 amended the Lacey Act on May 22, 2008, by making it unlawful to import, export, transport, sell, receive, acquire, or purchase in interstate or foreign commerce a broader range of plants, as well as plant products, with some limited exceptions, taken or traded in violation of the laws of the U.S., a U.S. State, or other countries.
In addition, the amendments made it unlawful to make or submit any false record, account or label for any false identification of, the plants and products covered by the Act. It also introduced the requirement for an import declaration for certain plants and plant products entering the U.S. Lastly, the amendments provide for both civil and criminal penalties for failure to comply.
Enforcement actions may be taken for any violations committed on or after May 22, 2008. However, that the requirement to provide a declaration under the amended Act did not become effective until December 15, 2008. Moreover, enforcement of the declaration requirement is being phased-in. The most recent enforcement phase, Phase IV, took effect on April 1, 2010.)
1Under the Lacey Act, as amended, ‘‘plant’’ means: ‘‘Any wild member of the plant kingdom, including roots, seeds, parts or product thereof, and including trees from either natural or planted forest stands.” There are some exclusions. Common cultivars (except trees) and common food crops are excluded from the definition of plant. In addition, a scientific specimen of plant genetic material that is to be used only for laboratory or field research and any plant that is to remain planted or to be planted or replanted is also excluded from the definition of plant, unless the plant is listed under the Endangered Species Act or a similar State law, or is listed in an appendix to the Convention on International Trade in Endangered Species of Wild Fauna and Flora (CITES).
Note that packaging material is exempt from the Lacey Act’s declaration requirement unless the packaging material itself is the item being imported or it is used for some other purpose than supporting, protecting or carrying another item.
(See ITT’s Online Archives or 04/23/10 news, (Ref: 10042305) for BP summary of CBP‘s plans to have ACE accept Lacey Act Declaration data by Sept 2010.
See ITT’s Online Archives or 04/13/10 news, (Ref: 10041305), for BP summary of APHIS plans to conduct a review and report to Congress on the declaration, its revised primer, etc.)
OMB announcement (dated 04/22/10) available at http://www.reginfo.gov/public/ (go to “Regulatory Review” on left side of web page, and click on “Regulations under EO 12866 Review” to see APHIS proposed rule posting)
APHIS Lacey Act Web Page available at http://www.aphis.usda.gov/plant_health/lacey_act/index.shtml