For those who have been losing sleep over the next phase of the Lacey Act implementation on October 1, 2009, you can breath a small sigh of relief. On September 2, 2009, the Animal and Plant Health Inspection Service (APHIS) issued a Notice in the Federal Register to announce revisions to the detailed phase-in schedule that was originally announced in October 2008, reducing the impacted products in upcoming phases.
The Lacey Act was enacted in 1900 and combats trafficking in illegal wildlife, fish or plants. The Food, Conservation and Energy Act of 2008, effective May 22, 2008, amended the Lacey Act by expanding its protection to a broader range of plants and plant products. As amended, the Lacey Act now makes it unlawful to:
- Import, export, transport, sell, receive, acquire or purchase in interstate or foreign commerce any plant, with some limited exceptions, taken in violation of the laws of a U.S. State or any foreign law that protects plants.
- Make or submit any false record, account, or label for false identification of any plant.
- Import certain plants and plant products without an import declaration.
The Act, as amended, posed numerous challenges to both the trade and the agencies responsible for enforcement. The level of detail required on the import declaration (genus and species) was at best difficult to obtain for most importers. Additionally, no electronic system was initially available (e.g. ACE) for submission of the declarations, creating difficulties not only for APHIS, but also for U.S. Customs and Border Protection (CBP), which was charged with enforcing collection of the documents on importation. Other areas of concern included:
- Lack of a blanket declaration option for shippers who import the same products from the same sources on a regular basis.
- Availability of species groupings using the definition and use of logically coherent groupings of plant species according to the current state of scientific knowledge.
- Determination of the accurate date of manufacture (trade feels this should be prospective only).
- Declaration of composite/particleboard (HTS 4410) and fiberboard (HS 4411) should not be mandatory until the agency determines it is feasible and practical to collect the information required. This would include other engineered composite materials made of sawdust and/or wood scraps or other manufacturing byproducts.
- Recycled wood products should be supported and treated in the same manner as recycled or recovered paper products for the purposes of the declaration requirement.
- APHIS had yet to provide definitions for potential exemptions that fall under “common cultivars” and “common food crops.”
Subsequent to review of the comments that were received on the October 2008 Notice announcing the initial phase-in implementation schedule, APHIS has now revised the phase-in schedule covering the period from December 25, 2008, to August 31, 2010. These revisions will begin with Phase III, which starts October 1, 2009, and are as follows:
- APHIS will further delay enforcement of the declaration of materials of composite and recycled or reused materials (e.g., medium density fiberboard, particleboard and scrap wood) to the genus and/or species level. Proposed enforcement of use of the declaration for these products will be no earlier than September 1, 2010.
- Specific commodities have been removed from Phase III and Phase IV of the schedule. Additionally, some HTS Headings have been added to Phase IV. Below is a chart reflecting the revised implementation schedule beginning October 1, 2009 (there were no changes to Phase I or II).
To view table click here.
It should be noted that many of the headings listed in Phase IV of the schedule contain goods that are not composed of wood or other plant material. APHIS has clarified that a declaration is not required for products that have no wood or plant product content. 1
APHIS has stated that there will be no further additions to Phase III or IV. Additionally, APHIS will provide at least six months’ notice on any further changes to the phase in schedule. Those changes will be announced in the Federal Register. It is possible that additional phases will be implemented on or after September 1, 2010. With this in mind, APHIS is seeking comments from the trade with respect to various Headings that are currently under consideration for future implementation. A complete list of those Headings can be found in the Federal Register Notice at http://www.aphis.usda.gov/plant_health/lacey_act/downloads/2008-0119.pdf.
APHIS is currently evaluating the options for blanket certification programs. A pilot program began on May 1, 2009, for those entities currently participating in Automated Line Release (ALR) and Border Release Advance Screening and Selectivity (BRASS) with products that require a Lacey Act declaration. The pilot program required participants to make a choice as to whether to remain active in the expedited program or be removed. For those eligible participants that chose not to participate, CBP will deactivate the respective Common Commodity Classification Code (C4) code(s). 2
The pilot program was designed to test the feasibility of collecting information required through the use of periodic “blanket” declarations, with subsequent reconciliation reports. To date, there are approximately 85 pilot participants and APHIS is considering whether to add additional entities to the pilot.
Although not all concerns from the trade have been addressed with the recent Federal Register Notice, some of the most problematic areas have been removed from the phasein schedule pending further review by APHIS to allow more time to evaluate options for enforcing declaration for these types of goods.
It is expected that further clarification regarding the definitions of common cultivars and common food crops will be forthcoming before the end of the year, in addition to updates concerning the progress of the blanket declaration pilot program.
There are still many pending commodity classifications under review with respect to application of the declaration under the Lacey Act. Importers should not only take notice of the recent revisions, but also review the pending HTS chapters/subchapters currently under consideration for subsequent phases that would be scheduled to begin September 1, 2010. With the agency currently seeking comments on these areas, now is a good time to bring concerns to the attention of APHIS to ensure future expansion of the declaration is handled in a manner that businesses can live with.