APHIS Expects to Send Lacey Declaration Report to OMB by Late Jan 2012, Definitions Soon

Final Rule to Define Common Cultivar and Common Food Crop Expected Soon

APHIS officials state that the agency is very close to completing its final rule defining the categorical exemption¹ for common cultivars (except trees) and common food crops. In August 2010, APHIS had proposed definitions for these two exemptions that would apply to entire species and hybrids of plants grown on a commercial scale (e.g. cotton, tomatoes, soybeans) that are not endangered or protected.²

A list of examples of plant taxa or commodities that would qualify for such an exemption was also proposed to be issued separately, along with a process to request additions to the list. (See ITT’s Online Archives 10080415 for summary of proposed rule.)

Report to Congress on Lacey Declaration’s Impact, Etc. Could Lead to Changes, Etc.

While the report is still under review, it is expected to be finished and sent to OMB by the end of January 2012. If the OMB formal review process results in the approval of the report by the affected agencies, it will be sent to Congress. Sources speculate that the report could be sent to Congress as early as February 2012. The trade is interested in seeing if the report recommends any changes, etc.

The 2008 Lacey Act Amendments³ require APHIS to submit a report to Congress on the enforcement value of the declaration, its effect on the cost of legal plant imports, and any recommendations for new legislation.

The report is required to include (partial list):

• 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.

¹There are three categories of plants that are exempt from the provisions of the Lacey Act as amended. These categories are: (1) common cultivars (except trees), and common food crops (including roots, seeds, parts, or products thereof); (2) scientific specimens of plant genetic material (including roots, seeds, germplasm, parts, or products thereof) that are to be used only for laboratory or field research; (3) plants that are to remain planted or to be planted or replanted.

²The categorical exemption for “common cultivar” was proposed to be a plant (except a tree) that:

• has been developed through selective breeding or other means for specific morphological or physiological characteristics; and
• is a species or hybrid that is cultivated on a commercial scale; and
• is not listed: (1) in an appendix to the Convention on International Trade in Endangered Species of Wild Fauna and Flora (CITES); (2) as an endangered or threatened species under the Endangered Species Act of 1973 (16 USC 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.

The categorical exemption for “common food crop” was proposed to be a plant that:

• has been raised, grown, or cultivated for human or animal consumption, and
• is a species or hybrid that is cultivated on a commercial scale; and
• is not listed: (1) in an appendix to CITES; (2) as an endangered or threatened species under the Endangered Species Act of 1973 (16 USC 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.

³The 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 and 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 also 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 [Ref 08100805] for more information.)

(See ITT's Online Archives 11120720 for most recent update on the report and definitions final rule. See ITT’s Online Archives 11090622 for summary on status of APHIS issuing its report Congress and its final rule defining common cultivar and common food crop.

See ITT’s Online Archives 11022808 for summary on APHIS request for comments on its review of the Lacey Act declaration, which it said would be included in its report to Congress.

See ITT’s Online Archives 11063014 for summary of APHIS advance notice of proposed rulemaking (ANPR) to create a ‘de minimis’ declaration exception for small quantities, how to deal with products that contain composite plant materials, the use of species groupings, etc.)