APHIS Issues Q&A, Draft Declaration, Etc. for Lacey Act Amendments

(The Lacey Act combats trafficking in illegal wildlife, fish, and plants. The 2008 Farm Bill amended the Lacey Act by expanding its protection to a broader range of plants and plant products, including illegally logged timber and its products.

The Animal and Plant Health Inspection Service (APHIS) has formed an InteragencyTask Force to address the new Lacey Act Amendments and to develop a reasonable implementation plan for the declaration requirement. The task force includes representatives from APHIS, U.S. Customs and Border Protection (CBP), Fish and Wildlife Service (FWS), the Department of Justice (DOJ), and other agencies. APHIS is accepting comments on the Lacey Act Amendments and its proposed phase-in enforcement schedule for the declaration, until December 8, 2008.)

The following summary is based on an APHIS presentation, a question and answer document on the implementation of the Lacey Act Amendments, a video recording of the October 14, 2008 APHIS meeting on the Lacey Act Amendments held in Washington D.C., as well as other resources listed at the end of this summary.

The Lacey Act Amendments primarily make three changes:

1. Import/export, etc. prohibition. Effective May 22, 2008, (with certain exceptions) it is illegal to import, export, transport, sell, receive, acquire or purchase in interstate or foreign commerce, any plant or plant product (including illegally logged timber and timber products) taken or traded in violation of a U.S. State law or most foreign laws. APHIS has stated that this prohibition is the main focus of the Lacey Act Amendments (see below).

Enforcement actions may be taken for any violations committed on or after May 22, 2008. Enforcement action is not limited to timber and products from timber; however, government officials at the meeting indicated that illegally logged timber, and the wood products made from such timber, were the most important enforcement focus.

Enforcement action plans, or specific countries or products to be targeted, have not been determined. Enforcement actions can be anticipated if and when there is legally sufficient evidence of a violation that was committed on or after May 22, 2008.

1. False information prohibition. Effective May 22, 2008, it is unlawful to make or submit any false record, account, or label for, or any false identification of, any plant. This prohibition extends to the information submitted on the declaration, even if voluntarily submitted prior to the phased-in enforcement date for that product.
2. Declaration requirement. A declaration will be required at time of importation for plants and plant products that fall under the scope of the declaration requirement, unless excluded. The declaration requires the genus and species of the plant, the name of the country where the plant was harvested, the value and quantity of the importation, and other information.

Effective when enforcement begins (expected in April 2009) on a phased-in basis, it will be unlawful to import any covered plant or plant product without a declaration if this requirement has been phased in for enforcement purposes. A policy for how to handle non-compliant shipments is under development and is expected to be issued by April 2009.

(Although the declaration requirement is technically effective December 15, 2008, it is expected to be voluntary and not enforced on a phased-in basis until April 2009, when an electronic declaration form is available. For certain imports not conducive to electronic filing, a paper form will still be accepted.)

Products subject to seizure if declaration inaccurate. A product covered by the declaration requirement is subject to seizure and forfeiture if the declaration is inaccurate (see 2. above). Any potential harshness resulting from such a forfeiture is subject to relief under remission or mitigation provisions of the seizing agency. Guidelines on remission and mitigation are expected to be issued before enforcement begins in April 2009.

(One official noted however, that the "heart" of the Lacey Act Amendments is not the declaration requirement but the new import/export/etc. prohibition (see 1. above). The declaration does not ask if the shipment is illegal or legal, so a false declaration in and of itself may not provide a basis for seizure and forfeiture unless there is a violation of the new import/export/etc. prohibitions.)

Draft declaration form available. APHIS has made available a draft paper "Plant and Plant Product Declaration Form," with instructions. Although APHIS expects that the vast majority of importers subject to the Lacey Act Amendments will never use the paper form, they are making the draft available so the trade can better understand what information will be entered into an electronic system. The form will also be available for formal public comment in November 2008.

(The declaration information will be collected (and transmitted to APHIS) by CBP, which hopes to use a legacy FWS electronic system for this purpose. Officials at the APHIS meeting indicated that the use of this system by April 2009 is planned but cannot be assured. If it is still not ready several months after that date, CBP and APHIS may have to contemplate requiring the submission of a paper declaration.)

"Further from the Forest" Products

As the scope of the Lacey Act Amendments is very broad and could arguably affect all matter of products that could contain plant parts, the task force is working with Congress to clarify the new law's intent, as some products get "further and further away from the forest." The task force wants to be as pragmatic as possible in implementing the amendments, and will be working to clarify how or if APHIS will implement the Lacey Act amendments for those "further from the forest" products.

Tobacco, Wine, and Cotton

APHIS plans to define the terms "common food crops" and "common cultivars (except trees)" that are exempt, in an interim rule expected to be issued by April 2009. The definitions are likely to be broad and generally worded; however, examples are expected to be provided.

Officials at the meeting noted that anything that is consumed by humans as food (including wine) is expected to be excluded as a common food crop. Common cultivar exclusions are expected to include cotton and tobacco (and their products).

Other Plant Based Textiles

No date has been set for implementation of declaration requirement for other textiles and apparel that are made from plants - if there will be implementation. The issue is still on the table, but its consideration has been postponed to a later date.

Label on Bottles, Manuals with VCRs, Hangtags on Garments

Although a strict reading of the Lacey Act Amendments could require a declaration for labels on bottles, or manuals with VCRs, APHIS has no intention of enforcing the declaration requirement in such situations.

However, hangtags on garments could be a different story if (non-cotton, plant-based) garments fall within what could require a declaration; however, the enforcement of the declaration requirement for such products is not on APHIS' horizon.

Plant-Based Plastics, Cellulosics

It is likely that cellulosics will fall outside the scope of the declaration requirement. However, the issue of whether to require a declaration for plant-based plastics and cellulosics is still on the table.

Personal Shipments

APHIS is leaning toward exempting personal shipments from the declaration requirements.

Express Consignment Shipments

APHIS has made no decision yet on express consignment shipments.

Carnets, T&E, IE, and FROB Cargo, FTZ Cargo

The Task Force is leaning toward excluding carnet importations from the declaration requirements. Transportation and Export (T&E), Import and Export (IE), and Freight Remaining Onboard (FROB) cargo are expected to be exempt from the declaration as there is no "importation." For Foreign Trade Zone goods, the declaration would be required at the time the CBP Form 214 (or e214) is filed.

Six Congressmen Ask for Leniency in Declaration's Enforcement, Etc.

A letter sent to the Administration prior to the October 14th meeting from six Congressmen, including four Committee Chairs (House Ways and Means, Senate Finance, House Natural Resources, and Senate Agriculture), urge a more lenient enforcement approach to the declaration requirement. They urge (partial list):

phasing in the declaration's enforcement by tariff number

six months for each phase-in period

the first enforcement phase include logs and timber, sawn wood, lumber and solid wood flooring

the second enforcement phase include bent wood furniture, cribs, wooden picture frames, plywood, engineered flooring, and wood pulp

subsequent enforcement phases cover certain paper products, wooden blinds, billiard cues, and musical instruments

exempting from the first two years of enforcement: beverages, cosmetics and personal care products, footwear, textiles and apparel, and rubber or cork products.

interpreting the "packaging material" exclusion to include tags, labels, manuals, warranty cards, wrap, boxes, cardboard or paper inserts, bottle corks and pallets

excluding informal entries, personal importations, mail (unless subject to formal entry), T&E entries, Immediate Transportation (IT) movements, carnet importations, and (unless there is evidence of a violation) FTZ and warehouse entries

establishing a U.S. government website that contains a database of (1) genus and species and common/trade name information for plants, (2) foreign laws on illegal logging, (3) references to available tools for tracking wood and assessing illegal sources within a wood supply chain, etc.

new funding for a streamlined electronic declaration database system

(A second letter lists the names of trade associations and others that are supportive of the views in the Congressional letter.)

(See ITT's Online Archives or 10/08/08 news, 08100805, for BP summary of APHIS' proposed phase-in schedule for the declaration.

See ITT's Online Archives or 10/15/08 news, 08101505, for initial BP summary of the October 14, 2008 meeting.

See ITT's Online Archives or 09/19/08 news, 08091905, for BP summary that submission of declaration expected to initially be voluntary on December 15, 2008. See ITT's Online Archives or 08/18/08 news, 08081805, for BP summary of the enacted provisions of the declaration. )

- Comments on all aspects of Lacey Act Amendments to be considered if submitted by December 8, 2008.

- Email Lacey Act Amendment questions to lacey.act.declaration@aphis.usda.gov

APHIS Web Page for Lacey Act Amendments http://www.aphis.usda.gov/plant_health/lacey_act/index.shtml

APHIS Lacey Act Amendments Q&A available at http://www.aphis.usda.gov/plant_health/lacey_act/downloads/Lacey_Act_Q&A.pdf

October 14, 2008 Meeting PowerPoint presentation (dated 10/06/08) available at http://www.aphis.usda.gov/plant_health/lacey_act/downloads/laceyact_powerpoint.pdf

90 minute WMV video of October 14, 2008 meeting available (scroll down) at http://www.aphis.usda.gov/plant_health/lacey_act/index.shtml

The Lacey Act as amended by H.R. 2149 available at http://www.aphis.usda.gov/plant_health/lacey_act/downloads/background--redlinedLaceyamndmnt--forests--may08.pdf

The Lacey Act Amendments (request by email to documents@brokerpower.com)

Draft Plant and Plant Product Declaration form (dated 10/10/08) and instructions (request form by email to documents@brokerpower.com)

October 10, 2008 Letter from six congressmen (request letter by email to documents@brokerpower.com) and October 14 letter of support from trade associations (request letter by email to documents@brokerpower.com)