The Animal and Plant Health Inspection Service (APHIS) published the long-awaited Proposed Rule August 4, 2010, providing the definitions for Exempt and Regulated Articles under the Lacey Act. http://frwebgate2.access.gpo.gov/cgi-bin/PDFgate.cgi?WAISdocID=XLgbWt/0/2/0&WAISaction=retrieve
The Lacey Act was first enacted in 1900 and combats trafficking in illegal 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. As amended, the Lacey Act now makes it unlawful to:
- Import, export, transport, sell, receive, acquire or purchase in interstate or foreign commerce any plant, with some limited exceptions, taken in violation of the laws of a U.S. State or any foreign law that protects plants.
- Make or submit any false record, account, or label for false identification of any plant.
- Import certain plants and plant products without an import declaration.
Since the law was enacted, the trade, as well as government agencies responsible for enforcement, has struggled with ensuring compliance. Currently, enforcement of the declaration requirement is being phased in as described in previous notices published in the Federal Register (see 74 FR 5911-5913 and 74 FR 4515-4518).
Three categories of plants are exempt from provisions of the Lacey Act:
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 used only for laboratory or field research; 1
3. Plants that are to remain planted or to be planted or replanted.
The Definitions
Until now, definitions for "common cultivars" and "common foods crops" had not been provided to the trade. The proposed rule will establish a new part in the plant-related provisions of Title 7, Chapter III of the Code of Federal Regulations (CFR), which will contain these definitions.
In order to ensure that exemption from provisions of the Lacey Act applies only to plants that are common food crops or cultivars, the definitions are limited to plants of species grown on a commercial scale. The terms would apply to the entire species or hybrid of plant; the determination of whether a plant falls within these definitions is not made at the shipment or facility level.
Common Cultivar: A plant (except a tree) that:
(a) Has been developed through selective breeding or other means for specific morphological or physiological characteristics; and
(b) Is a species or hybrid that is cultivated on a commercial scale; and
(c) Is not listed in the appendix to CITES or 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.
Common Food Crop: A plant that:
(a) Has been raised, grown or cultivated for human or animal consumption, and
(b) Is a species or hybrid that is cultivated on a commercial scale; and
(c) Is not listed in the appendix to CITES or 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.
In addition to the above definitions, APHIS proposes to add a definition for "plant" consistent with the definition in the Act, to read as follows: "Any wild member of the plant kingdom, including roots, seeds, parts or products thereof, and including trees from either natural or planted forest stands."
APHIS plans to supplement these definitions by providing guidance in the form of a list of examples of plant taxa or commodities that qualify for exemption. The United States Department of Agriculture and Department of Interior will develop and maintain this list on a website, updating it as necessary. Updates will also be noted on the APHIS website. The list will not be exhaustive, and will also provide an email address to which the public can send inquiries regarding specific taxa or commodities, and request additional taxa and commodities be added to the list.
Comments on this Proposed Rule are being accepted on or before October 4, 2010, and may be submitted on the Federal eRulemaking Portal at http://www.regulations.gov/fdmspublic/component/main?main=DocketDetail&d=APHIS-2009-0018 .
Finally, we note that on August 4, 2010, CBP advised the Commercial Operations Advisory Committee (COAC) at its quarterly meeting that there are currently no plans for additional phases to be implemented to the Lacey Act to include more HTSUS Headings. This had been a concern for the trade since the previous FR Notice had indicated that there was a possibility of additional phases being implemented after September 1, 2010.
Footnotes
1 The amendments to the Lacey Act, including declaration requirements, still apply for items under 2 and 3 above if the plant is listed in an appendix to the Convention on International Trade in Endangered Species of Wild Fauna and Flora (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.
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