On October 8, 2008, the Animal and Plant Health Inspection Service (APHIS) at the Department of Agriculture (USDA) published a notice in the Federal Register informing the public of the new import declaration requirements pursuant to the amended Lacey Act and the Federal Government’s implementation plan for such declaration requirements. The notice also clarifies, to some extent, the scope of the plants and plant products covered by the Lacey Act. It also proposes a phase-in schedule for enforcement of the declaration requirements, which will become effective December 15, 2008. The deadline for public comments on the APHIS proposed implementation and enforcement plan is December 8, 2008.

Background

As reported in our August 2008 Customs Update, under the substantially expanded Lacey Act provisions – which are intended to curtail imports of illegally obtained plants and plant products – importers will be required to submit at the time of importation a declaration that identifies the scientific name of any and all plant(s) contained in the importation, the value and quantity of the importation, and the country of origin from which the plant was sourced.

The declaration requirement has raised serious concerns among the trade community, including: the potentially broad but currently unknown complete product coverage of the new declaration requirements; uncertainty regarding the enforcement approach by the agencies with Lacey Act enforcement authority; and the possibility of civil and criminal liability (in addition to the forfeiture of the imported plant or plant-derived product in question) for failure to comply with the new import declaration requirements.

Additional Scope Information Provided, But Much Uncertainty Remains

The October 8 APHIS notice acknowledges the broad scope of the amended Lacey Act and lists some (although not necessarily all) of the Harmonized Tariff Schedule (HTS) chapters in which there will be products subject to the new import declaration requirements.1

Importantly, at a public meeting regarding the new Lacey Act provisions on October 14, the relevant government agencies reiterated that there is no de minimis standard pursuant to which products containing small amounts of plants or plant materials may be exempted from either the substantive Lacey Act requirements or the import declaration requirements. Hence, an apparel article containing even a small amount of rayon or wooden buttons appears to be covered by the requirement, even though the apparel chapters (Chapters 62 and 63 are not listed in the APHIS notice).2 Similarly, uncertainty remains as to whether paper labels, stickers, tags and instructional inserts and booklets that generally accompany imported products may be subject to the declaration requirements. The notice also references three categorical exemptions from the definition of “Plant,” including “common cultivars” (except trees) and “common food crops.” These two terms, however, are not defined. APHIS and the U.S. Fish and Wildlife Service at the Department of the Interior are currently working on a joint rulemaking that will define those terms.

Department of Justice Plans Immediate Enforcement of Substantive Lacey Act Provisions

Since enactment of the new Lacey Act provisions, the Justice Department has repeatedly stated that the substantive provisions – i.e., that the transport, importation, or possession of plants and plant products harvested illegally under foreign law – are enforceable today. The Justice Department reiterated this position at the October 14 meeting regarding the new provisions, and emphasized that the it is currently looking at prosecuting potential violators. Of particular concern, in addition to the possibility of criminal and civil penalties, is the Department of Justice’s view that there is no “innocent owner” defense for U.S. importers or customers in Lacey Act seizure and forfeiture actions. Thus, even if a U.S. importer or customer takes prudent measures to ensure that its products were not harvested in violation of foreign law, the plants or plant products in question may be seized and forfeited without there being a viable defense for the importer or customer.

Proposed Phase-In Enforcement of the New Declaration Requirements 

APHIS plans to phase-in enforcement in three phases:

Phase I – Present to March 31, 2009 – voluntary Plant Protection and Quarantine (PPQ) Plant Import Form will be available on USDA’s web site, and accepted after December 15, 2008.

Phase II – April 1, 2009 (or when electronic system to collect data is available) – enforcement of import declaration requirement for HTS Chapters: 

  • 44 (wood and articles of)
  • 6 (live trees, plants, bulbs, cut flowers, ornamental foliage, etc.)

Phase III – July 1, 2009 (approximately) – enforcement of import declaration requirement for HTS Chapters: 

  • 47 (wood pulp) 
  • 48 (paper and articles of)
  •  92 (musical instruments) 
  • 94 (furniture) 
  • Plus chapters included in Phase II

After September 30, 2009 – additional products will be subject to phase-in enforcement. The specific timetable for this new phase-in stage will be announced in a subsequent Federal Register notice, and will include, among others, additional products in the following HTS Chapters:

  • 12 (oil seeds, misc. grain, seed, fruit, plant, etc.) 
  • 13 (gums, lacs, resins, vegetable saps, extracts, etc.)
  • 14 (vegetable plaiting materials and products not elsewhere specified or included) 
  • 45 (cork and articles of) 
  • 46 (basket ware and wickerwork) 
  • 66 (umbrellas, walking sticks, riding crops) 
  • 82 (tools) 
  • 93 (guns) 
  • 95 (toys, games and sporting equipment)
  • 96 (brooms, pencils, and buttons) 
  • 97 (works of art)

Please note that prior to the availability of electronic filing, from December 15, 2008 to April 1, 2009 (or soon after the electronic system is available), APHIS will make a paper declaration form available for voluntary submission. The notice explicitly states that the Government will not bring prosecutions or forfeiture actions “for failing to complete the paper declaration form” before the electronic system for data collection is available. However, any person who submits a declaration form containing false information may be prosecuted. Once the electronic system is available, the import declaration will be required and enforced.

Opportunity for Comments and Public Hearing

Public comments are being accepted by APHIS on its proposed implementation and enforcement of the new Lacey Act import declaration requirements through December 8, 2008. APHIS held a public meeting on the implementation of the amendments to the Lacey Act on October 14, 2008.

Members of Congress Issue Letter To Guide Implementation

In an letter dated October 10, 2008, six Members of Congress expressed concern regarding APHIS’ intended implementation of the new Lacey Act provisions, as described in the APHIS October 8, 2008 Federal Register notice.3 The letter recommends further delay in the proposed phased-in implementation of the import declaration requirements, and limiting the number of products covered by the phase-in of import declaration requirements.4 It also indicates that Congress intended that only formal consumption entries be covered by this requirement. The letter is not binding on the regulatory agencies, but could be a helpful interpretive aid, given the positions of the signatories of the letter.