Lacey Act
APHIS Proposes Definitions for Exempt and Regulations Articles
08/05/10 11:23 PM
On
August 4, 2010, the Animal and Plant Inspection
Service (APHIS), in response to amendments to the
Lacey Act, issued a proposed rule
in
the Federal Register establishing definitions
for the terms “common cultivar” and “common food
crop.” As amended, the Lacey Act now makes it
unlawful to: (1) import, export, transport,
sell, receive, acquire, or purchase in
interstate or foreign commerce any plant, with
limited exceptions, obtained in violation of any
Federal, State, tribal, or foreign law that
protects plants; (2) make or submit any false
record, account, or label for, or any false
identification of, any plant covered by the Act;
and (3) to import certain plants and plant
products without an import declaration. The
declaration must contain the scientific name of
the plant, value of the import, quantity of the
plant, and name of the country from which the
plant was harvested.
Under the proposed rule, “common cultivar” is defined as 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:
(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.
“Common food crop” is defined as 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:
(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.
The rule also provides definition for “plant” as “any wild member of the plant kingdom, including roots, seeds, parts or products thereof, and including trees from either natural or planted forest stands.”
In addition to the definitions, APHIS intends to provide guidance in the form of a list of examples of plant taxa or commodities that qualify for exemption from the provisions of the Act as common cultivars and common food crops. The U.S. Department of Agriculture (USDA) and the U.S. Department of the Interior (DOI) will develop and maintain this list on-line and will update as necessary. List updates will also be made available on APHIS’ web site.
Comments on the proposed rule are due October 4, 2010.
Under the proposed rule, “common cultivar” is defined as 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:
(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.
“Common food crop” is defined as 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:
(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.
The rule also provides definition for “plant” as “any wild member of the plant kingdom, including roots, seeds, parts or products thereof, and including trees from either natural or planted forest stands.”
In addition to the definitions, APHIS intends to provide guidance in the form of a list of examples of plant taxa or commodities that qualify for exemption from the provisions of the Act as common cultivars and common food crops. The U.S. Department of Agriculture (USDA) and the U.S. Department of the Interior (DOI) will develop and maintain this list on-line and will update as necessary. List updates will also be made available on APHIS’ web site.
Comments on the proposed rule are due October 4, 2010.
Gibson Guitar May Be First Prosecuted under Revised Lacey Act
11/19/09 03:55 PM
The
Nashville Business Journal has reported that on
November 10, 2009, U.S. Fish & Wildlife
Service agents executed a search warrant at the
Gibson Guitar Corporation’s (Gibson Guitar)
Nashville manufacturing plant. The search is
said to be part of an investigation into the use
of endangered rosewood from Madagascar in
violation of the revised Lace Act.
Gibson Guitar, heralded in the past for its pioneering efforts to use sustainable wood products, is the first U.S. company to face prosecution under the revised Lacey Act – a new federal law banning trade in articles made of or containing specifically designated wood. The company issued a statement in which it proclaims full cooperation with the U.S. Fish & Wildlife Service investigation into the wood procurement.
The Lacey Act was expanded by the 2008 Farm Bill (the Food, Conservation, and Energy Act of 2008) to include timber and wood products, making the U.S. the first in the world to regulate trade in plants. Among other things, the Lacey Act requires an import declaration for certain plants and plant products, including the plant’s geographical origin and biological genus.
Penalties for violations of the Lacey Act range from a forfeiture of goods to fines up to $500,000 and even imprisonment if the company is found to have knowingly engaged in trade of illegally sourced wood.
Gibson Guitar, heralded in the past for its pioneering efforts to use sustainable wood products, is the first U.S. company to face prosecution under the revised Lacey Act – a new federal law banning trade in articles made of or containing specifically designated wood. The company issued a statement in which it proclaims full cooperation with the U.S. Fish & Wildlife Service investigation into the wood procurement.
The Lacey Act was expanded by the 2008 Farm Bill (the Food, Conservation, and Energy Act of 2008) to include timber and wood products, making the U.S. the first in the world to regulate trade in plants. Among other things, the Lacey Act requires an import declaration for certain plants and plant products, including the plant’s geographical origin and biological genus.
Penalties for violations of the Lacey Act range from a forfeiture of goods to fines up to $500,000 and even imprisonment if the company is found to have knowingly engaged in trade of illegally sourced wood.
CBP Publishes Guidance on Lacey Act Declaration
10/16/09 12:30 PM
On
October 15, 2009, Customs and Border Protection
(CBP) posted guidance on the Lacey
Act on its website. The Lacey Act (16 U.S.C.
3371 et seq., the Act, as amended) makes it
unlawful to import, export, transport, sell,
receive, acquire, or purchase in interstate or
foreign commerce any plant, with some limited
exceptions, taken or traded in violation of the
laws of the United States, a U.S. State or a
foreign country.
On September 2, 2009, the U.S. Department of Agriculture (USDA) Animal and Plant Health Inspection Service (APHIS) published a notice in the Federal Register announcing a revised enforcement phase in plan for the Act’s requirement for a plant product import declaration (see 74 Fed. Reg. 45415 for details). The revised plan identifies a list of products and the associated Harmonized Tariff Schedule (HTS) Chapter or Heading as to which the requirement for a Plant Product Declaration Form (PPQ 505) is anticipated to be enforced.
In its guidance, CBP states that it has automated the process for collecting the PPQ 505 data elements. Data will be transmitted to CBP’s Automated Commercial System (ACS) through the Automated Broker Interface (ABI) in the cargo release module. Electronic filing of the PPQ 505 declaration will not preclude remote location filing. Additional information on how to electronically file the PPQ 505 data can be found in the Participating Government Agencies chapter in the Customs and Trade Automated Interface Requirements (CATAIR) page. An importer has the option to complete and present a paper PPQ 505 for each line. (Plant and Plant Product Declaration Form) If a paper form of the PPQ 505 is used, the importer must mail the form to USDA at the address on the form.
CBP states that it expects and urges most importers to use the electronic system to file the declaration. If an entry package is presented to CBP to obtain release, the CBP 3461 form will be annotated in Box 29 to indicate “PPQ 505-Paper” if the declaration is presented in paper or “PPQ 505-ABI” if the declaration information was submitted electronically. If a paper form is submitted to CBP as part of the entry package, the paper form will be returned to the importer (or importer’s representative) for mailing to USDA. CBP will not mail forms to USDA. As a reminder, providing false or misleading information to the U.S. government can result in civil or criminal actions against any involved party and may result in the seizure and forfeiture of the merchandise.
APHIS has been designated the lead regulatory agency for these new requirements and CBP is assisting APHIS with the electronic collection of data to fulfill the import declaration requirement. CBP will continue to work as part of the interagency working group, consulting with trading partners, importers, exporters, and other interested groups as the provisions of the Act are fully implemented. The most current information on implementation of the amended Lacey Act can be found on the USDA website.
If you have any CBP related questions, please contact Ms. Anne Rothrock, Office of International Trade, at (202) 863-6573.
On September 2, 2009, the U.S. Department of Agriculture (USDA) Animal and Plant Health Inspection Service (APHIS) published a notice in the Federal Register announcing a revised enforcement phase in plan for the Act’s requirement for a plant product import declaration (see 74 Fed. Reg. 45415 for details). The revised plan identifies a list of products and the associated Harmonized Tariff Schedule (HTS) Chapter or Heading as to which the requirement for a Plant Product Declaration Form (PPQ 505) is anticipated to be enforced.
In its guidance, CBP states that it has automated the process for collecting the PPQ 505 data elements. Data will be transmitted to CBP’s Automated Commercial System (ACS) through the Automated Broker Interface (ABI) in the cargo release module. Electronic filing of the PPQ 505 declaration will not preclude remote location filing. Additional information on how to electronically file the PPQ 505 data can be found in the Participating Government Agencies chapter in the Customs and Trade Automated Interface Requirements (CATAIR) page. An importer has the option to complete and present a paper PPQ 505 for each line. (Plant and Plant Product Declaration Form) If a paper form of the PPQ 505 is used, the importer must mail the form to USDA at the address on the form.
CBP states that it expects and urges most importers to use the electronic system to file the declaration. If an entry package is presented to CBP to obtain release, the CBP 3461 form will be annotated in Box 29 to indicate “PPQ 505-Paper” if the declaration is presented in paper or “PPQ 505-ABI” if the declaration information was submitted electronically. If a paper form is submitted to CBP as part of the entry package, the paper form will be returned to the importer (or importer’s representative) for mailing to USDA. CBP will not mail forms to USDA. As a reminder, providing false or misleading information to the U.S. government can result in civil or criminal actions against any involved party and may result in the seizure and forfeiture of the merchandise.
APHIS has been designated the lead regulatory agency for these new requirements and CBP is assisting APHIS with the electronic collection of data to fulfill the import declaration requirement. CBP will continue to work as part of the interagency working group, consulting with trading partners, importers, exporters, and other interested groups as the provisions of the Act are fully implemented. The most current information on implementation of the amended Lacey Act can be found on the USDA website.
If you have any CBP related questions, please contact Ms. Anne Rothrock, Office of International Trade, at (202) 863-6573.
Enforcement of Lacey Act Declaration Postponed for Certain Products
09/02/09 09:22 PM
On
September 2, 2009, the Department of Agriculture
Animal and Plant Health Inspection Service (USDA)
issued a notice in the Federal
Register that modifies the schedule of
enforcement of the declaration requirement for
goods of, or containing, plants or plant
products. The notice affects the enforcement
schedule from December 15, 2008 to August 31,
2010.
Phase III of the enforcement, scheduled to begin on October 1, 2009, was modified by removing certain items from this phase. Thus, beginning October 1, 2009, the declaration requirement will be enforced only for the items in the following HTS Chapter 44 headings:
• 4402 – Wood charcoal;
• 4412 – Plywood, veneered panels, except 4412.99.06 and 4412.99.57;
• 4414 – Wooden frames;
• 4419 – Tableware & kitchenware of wood; and
• 4420 – Wood marquetry, caskets, statuettes.
Phase IV of the enforcement, scheduled to begin April 1, 2009, has been substantially revised. There will be no further additions to phases III or IV.
USDA is seeking comments on the revised enforcement schedule as well as HTS chapters/subchapters currently under consideration to be enforced beginning September 1, 2010. Specifically, USDA seeks comments on the products in the following HTS chapters: 44, 47, 48, 66, 82, 89, 92, 93, 94, 95, and 96. More detailed explanation of the enforcement schedule and included products can be found in the notice.
USDA noted that, while enforcement of the import declaration requirement is being phased in, some of the Lacey Amendments are already effective, and actions to enforce provisions of the Act other than the declaration requirement may be taken at any time.
Phase III of the enforcement, scheduled to begin on October 1, 2009, was modified by removing certain items from this phase. Thus, beginning October 1, 2009, the declaration requirement will be enforced only for the items in the following HTS Chapter 44 headings:
• 4402 – Wood charcoal;
• 4412 – Plywood, veneered panels, except 4412.99.06 and 4412.99.57;
• 4414 – Wooden frames;
• 4419 – Tableware & kitchenware of wood; and
• 4420 – Wood marquetry, caskets, statuettes.
Phase IV of the enforcement, scheduled to begin April 1, 2009, has been substantially revised. There will be no further additions to phases III or IV.
USDA is seeking comments on the revised enforcement schedule as well as HTS chapters/subchapters currently under consideration to be enforced beginning September 1, 2010. Specifically, USDA seeks comments on the products in the following HTS chapters: 44, 47, 48, 66, 82, 89, 92, 93, 94, 95, and 96. More detailed explanation of the enforcement schedule and included products can be found in the notice.
USDA noted that, while enforcement of the import declaration requirement is being phased in, some of the Lacey Amendments are already effective, and actions to enforce provisions of the Act other than the declaration requirement may be taken at any time.
CBP Updates Guidance on the Lacey Act Declaration
05/06/09 02:43 PM
The U.S. Customs and Border Protection (CBP)
recently updated its
guidance
on the Lacey Act declaration. The update emphasized
that enforcement of the data collection
requirements under the Lacey Act began on May 1,
2009, and also included information regarding a
pilot program involving entities participating in
CBP’s expedited border release programs.
On May 1, 2009, CBP began a pilot program for entities involved in Automated Line Release (ALR) or Border Release Advance Screening and Selectivity (BRASS) expedited border release programs whose products require a Lacey Act declaration during the current phase of enforcement. The pilot program is intended to test the feasibility of collecting the information using periodic declarations with follow-up reconciliation reports.
Under the pilot, participants must chose to remain or be removed from the program. If a participant wishes to opt out from the expedited program, their C4 code is deactivated effective June 1, 2009 and no further action is required. If a participant opts to remain in the program, they must complete a two-step process.
First, the participant must file with the U.S. Department of Agriculture (USDA) Animal and Plant Health Inspection Service (APHIS) an advance PPQ 505 form, initially on a monthly basis, that includes genus, species, value, and quantity elements based on estimated imports during the next calendar month. The initial estimate had to be submitted by May 15, 2009, covering the expedited release shipments planned for June 2009.
During stage two of the process, the participant must file a reconciliation report with APHIS within 15 days after the month’s end. This report must provide the actual shipment information made during the previous month. The deadline for the first reconciliation reports is set for July 15, 2009.
This process must be repeated each month while the pilot program is in effect.
CBP also urged the importers to use the electronic system to file the declaration. When an entry package is presented to CBP to obtain release, the CBP 3461 will be annotated in Box 29 to indicate “PPQ 505-Paper” if the declaration is presented in paper and “PPQ 505–ABI” if the declaration information was submitted electronically.
On May 1, 2009, CBP began a pilot program for entities involved in Automated Line Release (ALR) or Border Release Advance Screening and Selectivity (BRASS) expedited border release programs whose products require a Lacey Act declaration during the current phase of enforcement. The pilot program is intended to test the feasibility of collecting the information using periodic declarations with follow-up reconciliation reports.
Under the pilot, participants must chose to remain or be removed from the program. If a participant wishes to opt out from the expedited program, their C4 code is deactivated effective June 1, 2009 and no further action is required. If a participant opts to remain in the program, they must complete a two-step process.
First, the participant must file with the U.S. Department of Agriculture (USDA) Animal and Plant Health Inspection Service (APHIS) an advance PPQ 505 form, initially on a monthly basis, that includes genus, species, value, and quantity elements based on estimated imports during the next calendar month. The initial estimate had to be submitted by May 15, 2009, covering the expedited release shipments planned for June 2009.
During stage two of the process, the participant must file a reconciliation report with APHIS within 15 days after the month’s end. This report must provide the actual shipment information made during the previous month. The deadline for the first reconciliation reports is set for July 15, 2009.
This process must be repeated each month while the pilot program is in effect.
CBP also urged the importers to use the electronic system to file the declaration. When an entry package is presented to CBP to obtain release, the CBP 3461 will be annotated in Box 29 to indicate “PPQ 505-Paper” if the declaration is presented in paper and “PPQ 505–ABI” if the declaration information was submitted electronically.