October 8, 2008
On October 8, 2008, APHIS, the Animal and Plant Health Inspection Service of the US Department of Agriculture issued a Notice of Implementation of the Lacy Act Requirements (73 FR 58925) announcing a phase-in period associated with the declaration requirements for importation of goods that are plants, or contain plant or wood materials. The notice provides that for approximately the first five months of implementation, submission of paper declarations will be voluntary. Once an electronic filing system is up and running, compliance will be mandatory, with a phased-in product schedule discussed below.
APHIS is accepting comments on the plan up until December 8, 2008.
In May of this year, Congress passed a provision in the Farm Bill that amended the Lacey Act (the Act that combats trafficking in ‘‘illegal’’ wildlife, fish, and plants) which makes it unlawful for any person to import or export certain plant or wood products taken from a foreign country.
The legislation re-defines "plant" to mean any wild member of the plant kingdom, including roots, seed, parts and products thereof, and including trees from either natural or planted forest stands.
There are exceptions for:
- common cultivars, except trees and common food crops (including roots, seed, parts or products thereof),
- scientific specimens of plant genetic material to be used only for laboratory or field research and
- any plant that is to remain planted or to be planted or replanted.
The exceptions 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.
Import Declaration Requirements
Under the amended Lacey Act, beginning December 15, 2008, importers are supposed to submit a declaration for the subject plants and plant products. The declaration is to specify:
- The scientific name of any plant (including the genus and species) contained in the importation,
- A description of the value and quantity (including the unit of measure) of the importation and
- The name of the country from which the plant was taken.
Clarification of Declaration Requirements
In its notice of PRM, APHIS states that all declarations will have to comply with the following requirements:
- If the plant species used to produce the imported plant product varies and that species is unknown, the declaration must contain the name of each plant species that may have been used to produce the plant product.
- If the plant species used to produce the imported plant product 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 must contain the name of each country from which the plant may have been taken.
- If a paper or paperboard plant product includes recycled plant product, the declaration must 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.
Scope Of Coverage
All covered plants and plant products will require an import declaration. The scope of products that will require a declaration under the Lacey Act is broad, and includes certain live plants, plant parts, lumber, wood pulp, paper and paperboard, and products containing certain plant material or products, such as, furniture, tools, umbrellas, sporting goods, printed matter, musical instruments, products manufactured from plant-based resins, and textiles.
Declarations, however, need not be filed for plants or plant material used exclusively as packaging material to support, protect or carry another item, unless the packaging material itself is the item being imported.
Implementation Schedule & Voluntary Submission
CBP is currently developing an electronic reporting system that will collect the required data and it anticipates completing the electronic system by April 1, 2009.
APHIS states that it intends to begin enforcement of the declaration requirements upon completion of the electronic system. In the meantime, from December 15, 2008, to April 1, 2009, or as soon thereafter as the electronic system is available, APHIS will make a paper declaration form available for voluntary submission
APHIS will publish a notice in the Federal Register announcing the availability of the paper form and soliciting comments from the public (as well as affected agencies).
On April 1, 2009, enforcement is to begin with Harmonized Tariff Schedule (HTS) Chapters Ch. 44 (wood & articles of wood) and Ch. 6 (live trees, plants, bulbs, cut flowers, ornamental foliage, etc.).
On July 1, 2009, other chapters, such as: Ch. 47 (wood pulp), Ch. 48 (paper & articles of), Ch. 92 (musical instruments), and Ch. 94 (furniture) would follow.
Then, by September 30, 2009, and based on experience with the implementation of the electronic system for declaration data collection, USDA plans to phase in enforcement of the declaration requirements for additional chapters, including (but not limited to):
- Ch. 12 (oil seeds, misc. grain, seed, fruit, plant, etc.),
- Ch. 13 (gums, lacs, resins, vegetable saps, extracts, etc.),
- Ch. 14 (vegetable plaiting materials and products not elsewhere specified or included),
- Ch. 45 (cork and articles of),
- Ch. 46 (basket ware and wickerwork),
- Ch. 66 (umbrellas, walking sticks, riding crops),
- Ch. 82 (tools),
- Ch. 93 (guns),
- Ch. 95 (toys, games and sporting equipment),
- Ch. 96 (brooms, pencils, and buttons), and
- Ch. 97 (works of art).
No agencies with Lacey Act enforcement authority are to bring enforcement actions for failing to complete the paper declaration form before the electronic system for data collection is available (April 1, 2009, or later).