Update on Lacey Act Declaration: Review, Next Phase, Primer

Review and Report on Lacey Act Declaration

According to APHIS officials, the agency will be working on its review of the 2008 Lacey Act Amendments (including the declaration) during the summer of 2010. In conducting the review, APHIS will provide public notice and an opportunity for comments.

A report to Congress is due within six months of the review’s completion. The report must evaluate the effectiveness of the declaration requirements in assisting enforcement, and the potential to harmonize each of these requirements with other applicable import regulations. In addition, the report must include recommendations for appropriate legislation to assist in the identification of plants that are imported into the U.S. in violation of 16 USC 3372(f); and an analysis of the effect of requiring plant declarations on the cost of legal plant imports, etc.

(Also, no later than six months after the review is completed, regulations may be promulgated to: (i) limit the applicability of any of the plant product declaration requirements to specific plant products and make any other necessary modifications based on the review; and (ii) limit the scope of the exclusion for certain packaging material if such limitations are warranted as a result of the review.)

Next Enforcement Phase

Although some in the trade are expecting a new enforcement phase to be announced soon, APHIS sources would only note that any new phase would be announced six months prior to its start date. So, for example, a Phase V would have to be announced in May 2010 for it to begin in November 2010.

Exploring Use of a Website for Declarations

APHIS officials stated that the agency is looking into the possibility of accepting declarations via a website.

March 2010 Revised Lacey Act Primer

APHIS has issued a March 2010 version of its Lacey Act Primer. Changes reflected in the updated primer include:

Merchandise description. The Primer and APHIS sources indicate that with Phase IV that began on April 1, 2010, the following additional information may need to be included in Box 10 of the declaration (Description of Merchandise):

• for CITES Material -- enter ‘CITES permit number’
• for Goods Manufactured Prior to Amendment -- enter ‘Manufactured Prior to May 22, 2008’
• for musical instruments for performances -- enter “Musical instruments for use in performances’ or enter ‘Musical instruments returning from performance’
• If no wood content -- enter ‘No plant material present’

(Phase IV expanded enforcement coverage to include relevant items in:

Ch. 44 - 4421 (other articles of wood)

Ch. 66 - 6602 (walking sticks, whips, crops)

Ch. 82 - 8201 (hand tools)

Ch. 92 - 9201 (pianos), 9202 (other stringed instruments)

Ch. 93 - 9302 (revolvers and pistols), 9305.10.20 (parts and accessories for same)

Ch. 94 - 9401.69 (seats with wood frames)

Ch. 95 - 9504.20 (articles and accessories for billiards)

Ch. 97 - 9703 (sculptures))

No semi-colons. The Primer also states that semi-colons should not be used in any field of the electronic declaration, as they adversely affect the programming.

Fewer blanket declaration pages. APHIS edited the primer by removing several of the pages on the Blanket Declaration Pilot, which is only open to certain groups of importers that apply for the program (currently BRASS¹ and Automated Line Release (ALR) participants). Officials noted that the removed pages were no longer needed as pilot participants were making few errors.

(The Lacey Act (16 USC 3371 et seq.) combats trafficking in “illegal” wildlife, fish, or plants. The Food, Conservation, and Energy Act of 2008 amended the Lacey Act by making 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 U.S., 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 U.S. and provides for both civil and criminal penalties for failure to comply.)

¹Border Release Advance Screening and Selectivity

(See ITT’s Online Archives or 03/11/10 news, (Ref: 10031110), for BP summary of Lacey Act Declaration’s enforcement in Phase IV, and speculation on a possible Phase V. See ITT’s Online Archives or 03/01/10 news, (Ref: 10030115), for BP summary of the February 2010 version of APHIS’ Lacey Act Primer.

See ITT’s Online Archives or 12/09/09 news, (Ref: 09120910), for BP summary of APHIS guidance on HTS Chapter 44 articles containing composite/recycled/reused materials. See ITT’s Online Archives or 11/05/09 news, (Ref: 09110505), for BP summary on APHIS’ analysis of declaration data and there was no target date for definitions of common food crops or common cultivars.

See ITT’s Online Archives or 09/09/09 news, (Ref: 09090910), for most recent BP summary on Lacey Act ALR/BRASS pilot. See ITT’s Online Archives or 09/02/09 news, (Ref: 09090205), for BP summary of APHIS’ Revision to Phases III and IV of its enforcement phase-in for the Lacey Act Declaration. See ITT’s Online Archives or 03/25/09 news, (Ref: 09032515), for BP summary of update to PPQ 505 form.)

APHIS March 2010 Primer (not yet posted) available by emailing documents@brokerpower.com

APHIS Lacey Act web page available at http://www.aphis.usda.gov/plant_health/lacey_act/index.shtml