APHIS Sends List of Applicants for Lacey Act ALR/BRASS Pilot to CBP, Etc.

The pilot is initially open to those entities currently participating in CBP's expedited border release program, ALR/BRASS, whose products require a Lacey Act declaration during the current phase of enforcement. The current enforcement phase is limited to nine HTS headings in Chapter 44 (wood and articles of wood).

Those listed as participating in the pilot will not be removed from ALR/BRASS or have their C4 Code deactivated.

Non-Applicants Slated for ALR/BRASS Removal, C4 Code Deactivation

For those that do not participate in the pilot, APHIS has stated that they would be removed from ALR/BRASS and their C4 codes would be deactivated. The target date for CBP to take this action had previously been announced as June 1, 2009.

According to APHIS sources, it is now up to CBP to act.

(APHIS is implementing the Lacey Act ALR/BRASS pilot program using a two-step process. In Step 1, the ALR/BRASS participant will file with APHIS an advance estimated monthly declaration (estimated PPQ 505) on or before the 15th day of the month prior to the reporting period. For Step 2, the participant must file with APHIS a reconciliation report within 15 days after the end of the month, for the previous month, that provides information on the actual shipments made. The first reconciliation report, for June, is due by July 15, 2009.)

Next Phase of Lacey Act Enforcement on Track for October 1

CBP officials at a May 2009 COAC meeting stated that the next phase of Lacey Act enforcement, which will cover other headings in Chapter 44 (including plywood, veneered panels, densified wood, etc.) and the first five headings in Chapter 47 (wood pulp), is still on track to begin on October 1, 2009. CBP officials also noted concerns about providing accurate Lacey Act declarations for particleboard.

Definitions of Common Cultivar/Food Crop Still Under Development

"Common cultivars" (except trees) and "common food crops" are exempt from the Lacey Act declaration requirements. Their definitions are still under development and a rulemaking (likely an interim final rule) will not be issued in June 2009. APHIS sources state that with the current phase and next phase of enforcement only covering certain HTS headings in Chapters 44 and 47, it is thought to not be urgent.

Talking to Congress to Address Implementation Problems

CBP officials at the May 2009 COAC meeting also stated that they continue to meet with other agencies and with Congressional staff to discuss Lacey Act implementation, and there are still a number of problems which defy easy solution. There are also concerns about the quality and form (some of it on paper rather than electronic) of declaration data received to date, and whether the collective information will be useful for the report to Congress that is due by approximately the end of 2010.

(See ITT's Online Archives or 05/29/09 news, 09052905, for most recent prior summary on this pilot. See ITT's Online Archives or 05/13/09 news, 09051310, for BP summary of APHIS' filing instructions and form for ALR/BRASS pilot.)

¹Though some still use the term Line Release, CBP has stated that the BRASS system replaced the former Line Release system. BRASS tracks and releases repetitive shipments at land border locations.

(In February 2009, APHIS published a revised, phased-in enforcement plan for the Lacey Act declaration. Under this plan, the first phase of enforcement would have begun on April 1, 2009 for certain headings of HTS Chapter 44. However, enforcement of the declaration requirement for HTS Chapter 44 was delayed until May 1. CBP then further delayed enforcement of the declaration for ALR/BRASS participants until June 1, 2009, to give these participants the option to participate in a Blanket Declaration Pilot Program. Note that acceptance of the electronic declaration began on April 1 as scheduled. In addition, the prohibition of violative imports took effect on May 22, 2008.

The 2008 Farm Bill (the Food, Conservation, and Energy Act of 2008), effective May 22, 2008, amended the Lacey Act to make it unlawful to import, export, transport, sell, receive, acquire, or purchase in interstate or foreign commerce a broader range of plants, with some limited exceptions, taken or traded in violation of the laws of the United States, a U.S. State, or other countries. It also made it unlawful to make or submit any false record, account or label for any false identification of, this broader group of plants covered by the Act. Finally, it introduced the requirement for an import declaration for plants entering the United States and provides for both civil and criminal penalties for failure to comply.)