Update on APHIS ANPR on New Lacey Declaration Exceptions, Report to Congress Expected Soon
Officials at the Animal and Plant Health Inspection Service state that the June 30 advance notice of proposed rulemaking asking for comments on specific proposals for the Lacey Act Declaration for imported plants and plant products - such as de minimis exceptions for (i) small amounts of plant materials and (ii) composite plant materials - was issued pursuant to APHIS' general regulatory authority. In addition, officials expect the agency to issue its long-awaited report1 to Congress on the Lacey Act Amendments2 by August 29, 2011.
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No Need to Resubmit Comments, but More Targeted or New Comments Welcome
The officials stated that there is no need to resubmit comments that have already been submitted to APHIS in response to previous notices. For example, comments that were submitted in response to APHIS' February notice on its review of the declaration requirements (a prerequisite to submitting its mandatory report to Congress on the Lacey Act Amendments) do not have to be resubmitted. (See ITT's Online Archives or 03/14/11 news, 11031460, for BP reminder on the April 14 deadline for comments.)
However, the ANPR contains a number of specific proposals, so more targeted or new comments may be appropriate.
ANPR Is Not in Response to "Regulatory Option" Provided by Law
The Lacey Act Amendments state that 180 days after its review of the declaration requirements is completed, APHIS has the authority to issue regulations to (1) limit the declaration's requirements to specific plants only, for the (i) unknown species/country requirement, or (ii) average recycled content requirements, or modify these two requirements in other ways as warranted by the review results; (2) limit the scope of the exclusion for packaging; (3) etc.
APHIS sources state that the June 30 ANPR is not in response to this authority, which is optional and not mandatory.
Officials Expect to Submit Report to Congress on Lacey Before September
Officials stated that their report to Congress on the Lacey Act Amendments is expected to be submitted to Congress before the comment period closes on the ANPR, which is August 29, 2011.
(Officials also noted that the Justice Department was involved in developing the ANPR, adding that with regard to the authority for APHIS to set de minimis exceptions, the law does not provide for them; however, it does not prohibit them either.)
1The 2008 Act requires APHIS to include certain information in its report to Congress, including:
- an evaluation of the effectiveness, in terms of enforcement, of each type of information the import declaration requires, including the (1) scientific name of any plant contained in the importation, (2) value of the importation, (3) quantity and unit of measure of the plant, and (4) name of the country from which the plant was taken.
- an evaluation of the enforcement effectiveness of listing each plant species that may have been used if the species used varies and is unknown, and/or each country from which the plant used may have been taken, if the plant is commonly taken from more than one country and the country of harvest is unknown.
- an evaluation of the enforcement effectiveness of the average percent content requirement, without regard to the species or country, for paper or paperboard products containing recycled content.
- an assessment of the potential to harmonize the above requirements with other applicable import regulations in existence as of the date of the report.
- any recommendations for legislation that would assist in the identification of plants that are imported into the U.S. in violation of the declaration requirement.
- an analysis of the impact of the 2008 Act’s plant import, export, etc. prohibitions and the declaration requirement on the cost of legal plant imports and the extent and methodology of illegal logging practices and trafficking.
2The Lacey Act was amended on May 22, 2008, by making it unlawful to import, export, transport, sell, receive, acquire, or purchase in interstate or foreign commerce a broad 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. The amendments made it unlawful to make or submit any false information or label; implemented an import declaration requirement; and provided for civil and criminal penalties.
(See ITT's Online Archives or 06/30/11 news, 11063014, for BP summary of the APHIS ANPR.)