Importers rattled by the potential ramifi cations of the amendment to the Lacey Act can breathe a momentary sigh of relief. According to American Shipper, the government agencies involved in implementing the Lacey Act amendment have reached a compromise with industry groups that would phase in the implementation of the amendment.
The Lacey Act, enacted in 1900, is the nation’s oldest wildlife protection statute. The Act prohibits trade in wildlife, fi sh and plants that have been illegally taken, possessed, transported or sold. The Food, Conservation and Energy Act of 2008 (Farm Bill), passed on May 22, 2008, introduced amendments to the Lacey Act that expanded the Act’s protection to a broader range of plants and plant products, as well as wood that derives from plants illegally harvested in the country of origin. This expansion has the potential to affect approximately 8,000 provisions of the Harmonized Tariff Schedule of the United States (HTSUS) and 80 of 97 Chapters of the HTSUS. The products subject to the Lacey Act amendment could include items such as toys, sports equipment, umbrellas and even cigarettes.
Under the amendment, the importation of products in violation of the Lacey Act into the United States would be considered a federal crime, punishable by civil penalties up to $10,000 for each violation, and additional penalties under U.S. customs law, such as seizures of merchandise.
In addition to expanding the scope of products subject to Lacey Act protection, the Farm Bill legislation also requires importers to submit a declaration to the U.S. Department of Agriculture (USDA) at the time of importation, citing the scientifi c name of the plant, including genus and species, its value, quantity and name of the country from which the plant was taken (this may be different from the plant’s country of origin). If applicable, the declaration must also include the average percentage of recycled material in the product. If a variety of species is involved in producing the product, the name of each species must be listed on the declaration. In addition, if the species is taken from more than one country, the declaration must include each country name.
There are certain exclusions from Lacey Act coverage, including common food crops, scientifi c specimens for research and packaging material used to support, protect or carry another item. If the packaging is the imported item, however, it may not be excluded from the declaration requirement.
Under the Farm Bill, the declaration requirement was to be effective Dec. 15, 2008. The phased-in implementation approach proposed by U.S. Customs and Border Protection (CBP) and the USDA’s Animal Plant Health Inspection Services (APHIS) would eliminate this deadline. While the implementation schedule has not yet been fully developed, it is expected that, in Phase 1, the submission of the declaration between Dec. 15, 2008, and April 1, 2009, would be voluntary.
In Phase 2, after April 1, 2009, importers would be required to fi le the information, electronically or in paper form. This presumes that a software program exists that would accept such electronic declarations. CBP reports that it is optimistic that a U.S. Fish and Wildlife Service legacy software program would be able to interface with CBP’s automated trade processing system to allow transmission of the import declaration.
Phase 2 would limit declarations to the most obvious wood and plant products, such as fl ooring, furniture, paperboard and plywood. The products that fall within Phases 3 through 5 remain under review. Enforcement of gray-area products that involve processed-wood byproducts would be delayed to one of these phases, as would products such as musical instruments, toys and guns.
American Shipper reports that trade organizations are establishing a coalition to modify and/or postpone the Lacey Act amendments, which coalition would ask Congress to withhold enforcement of the law for an additional two years. CBP and the USDA will be educating the trade community about compliance with the Lacey Act and passing along information about the program as it is developed. In the meantime, we suggest that importers stay on top of the latest news regarding implementation of the Lacey Act and be prepared to make import declarations for applicable products by the proposed April 2009 deadline.