Commercial Information Circulars

24-hour hotline : 23 922 922

e-mail address : enquiry@tid.gov.hk

Ref : EIC 111/2

12 June 2008

Dear Sirs,

Commercial Information Circular No. 326/2008

US : Food, Conservation, and Energy Act of 2008

The US Congress passed on 22 May 2008 the Food, Conservation, and Energy Act of 2008 which, among other things, expands the scope of plants covered by the Lacey Act and imposes a new import declaration requirement for plants and plant products.

DETAILS

2. The Lacey Act prohibits trade in wildlife, fish, and plants that have been illegally taken, possessed, transported or sold. Penalties under the Act include civil administrative penalties, forfeiture of the trafficked good, criminal fines or imprisonment. The text of the Lacey Act is available at the website 
   http://www.access.gpo.gov/uscode/title16/chapter53_.html.

Expanded Scope of Plants in the Lacey Act

3. As far as plants are concerned, the Food, Conservation, and Energy Act of 2008 broadens the definition of "plant" and "plants" under the Lacey Act to cover any wild member of the plant kingdom, including roots, seeds, parts or products thereof, and including trees from either natural or planted forest stands. The definition does not include (a) common cultivars, except trees, and common food crops (including roots, seeds, parts or products thereof); (b) scientific specimens of plant genetic material (including roots, seeds, germplasm, parts or products thereof) to be used only for laboratory or field research; and (c) any plant that is to remain planted or to be planted or replanted. However, exceptions (b) and (c) do not apply if the plant is listed in an appendix to the Convention on International Trade in Endangered Species of Wild Fauna and Flora, 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 indigenous species that are threatened with extinction.

4. In addition, the Food, Conservation, and Energy Act of 2008 also extends the prohibited acts under the Lacey Act to cover taking, possessing, transporting, or sale of plants in violation of foreign law. Specifically, it is now unlawful to import, export, transport, sell, receive, acquire, or purchase in interstate or foreign commerce any plant taken, possessed, transported or sold (a) in violation of any law or regulation relevant to plant protection of any US state or foreign country; (b) without payment of appropriate royalties, taxes, or stumpage fees required for the plant by any law or regulation of any US state or foreign country; or (c) in violation of any limitation governing the export or transhipment of plants under any law or regulation of any US state or foreign country.

New Import Declaration Requirement for Plants

5. Effective 180 days after enactment of the Food, Conservation, and Energy Act of 2008, all importers will be required to file a declaration upon importation for plants (including plant products) covered in the Lacey Act. The declaration will have to contain (a) the scientific name of any plant (including the genus and species of the plant) contained in the importation; (b) a description of the value of the importation and the quantity (including the unit of measure) of the plant; and (c) the name of the country from which the plant was taken. As stated in the 2008 Act, in the near term,

- in the case where the species of plant used to produce the plant product varies and the actual species is unknown, declarations relating to plant products should include the name of each species of plant that may have been used to produce the plant product;

- in the case where the species concerned is commonly taken from more than one country and the country from which the plant was taken and used to produce the plant product is unknown, the declaration should include the name of each country from which the plant may have been taken; and

- in the case where a paper or paperboard plant product includes recycled plant product, the declaration should contain the average percent recycled content without regard for the species or country of origin of the recycled plant product, in addition to the information for the non-recycled plant content otherwise required.

The declaration requirement will not apply to plants used exclusively as packaging material to support, protect or carry another item, unless the packaging material itself is the item being imported. The US Department of Agriculture will work with other agencies to promulgate detailed regulations respecting the import declaration requirement.

6. For specific provisions of the Food, Conservation, and Energy Act of 2008 which amend the Lacey Act, please refer to Section 8204 of the 2008 Act at:
   http:// frwebgate.access.gpo.gov/cgi-bin/getdoc.cgi?dbname="110_cong_bills&docid="f:h2419enr.txt.pdf.

ENQUIRIES

7. For enquiries concerning the content of this circular, please contact the undersigned at 2398 5682.

Yours faithfully,

 

(Miss Bonny CHAO)
for Director-General of Trade and Industry