The 2008 Farm Bill raises new risks for importers of plants and plant-derived products, including wood products. The new law expands the scope of the Lacey Act to cover products containing wood, paper, and other plant-derived materials, such as wooden furniture. The expanded Lacey Act provisions will require, effective December 15, 2008, an import declaration for all shipments of products containing plant materials, including wood-derived products. The scope of the new import requirements is broad and could impose significant new liabilities for importers.

2008 Farm Bill Expands the Scope of the Lacey Act

The 2008 Farm Bill was enacted on June 2008 and amends the 1981 Lacey Act Amendments. These amendments regulate the importation, exportation, and sale of fish, wildlife, and, until this year, U.S.-derived plant products. The new provisions expand the scope of the Lacey Act to prohibit the importation of plants and plant products that were acquired in violation of foreign laws. The new provisions redefine the term “plant” to mean any wild member of the plant kingdom, including roots, seed, parts and products thereof, and, in an important change, trees from either natural or planted forest stands. The term “plant” excludes: 1

(i) Common cultivars and common food crops (including roots and seeds);

(ii) Scientific plant specimens for laboratory or field research; and

(iii) Any plant that is to remain planted or to be planted or replanted.

New Requirements for Importers

The new provisions also create new import declaration requirements intended to curtail imports of illegally sourced plants and plant products, including timber. The U.S. Department of Agriculture’s Animal and Plant Health Inspection Service (APHIS), the lead agency with respect to the Lacey Act, and the Customs and Border Patrol Service (CBP) have advised that, effective December 15, 2008, importers of covered plants must submit at the time of entry a declaration that includes the following information:

  • The scientific name of any plant(s) contained in the importation;
  • The value and quantity of the importation;
  • The country of origin from which the plant was sourced. 2

The new provisions also require a different importer declaration for plant products. The plant product declaration requirements vary depending on whether the importer has knowledge of the species of plant used to produce the plant product, whether the species of plant used to produce the plant product is from multiple countries, and whether the plant product contains recycled materials.

An importer declaration is not required if plants are used exclusively as packing material for another item, unless the packing material is the actual item being imported.

APHIS and CBP are currently developing the format of the declarations and guidelines for whether the guidelines must be submitted in paper and/or electronic form. Both federal agencies are expected to enact regulations in late 2008 or early 2009 to implement these new requirements. Interim guidance may be available as early as September 2008.

Will Your Products be Affected?

The new import declaration requirements are broad and likely cover these imported goods:

  • Wooden furniture
  • Particle board and plywood
  • Hardwood flooring
  • Goods containing Rayon
  • Objects with wooden handles or other wooden components (e.g., hammers, axes, shovels and cookware, clothing containing wooden buttons or ornamentation)
  • Paper and paper products
  • Other imported goods containing plant products.

Sanctions for Non-Compliance

The Lacey Act amendments provide for civil and criminal penalties for violations. Failure to comply with the import declaration requirement could result in civil or criminal liability associated with the omission of, or provision of false, material information on the product’s entry documentation. If the required information is not provided, the goods also could be seized and forfeited by CBP.

Options for Importers

Importers of plants and plant products should prepare for the possible implementation of these requirements on December 15, 2008. Possible preparatory steps include:

(i) Obtaining required information from foreign suppliers, manufacturers and exporters to ensure compliance with the new Lacey Act requirements;

(ii) Conducting due diligence with respect to their imported products, their products’ constituent materials, and source(s) of supply; and

(iii) Working with APHIS and CBP regarding implementation of the declaration requirements.

Conclusion

The expanded scope of the Lacey Act raises significant new obligations for importers of plants and plant products. Hogan & Hartson would be pleased to work with importers to consider the implications of these new requirements and to develop a strategy to limit their potential liability.