52 Groups Recommend 2nd Set of Business Friendly Changes to Lacey Declaration

The organizations represented include the Express Association of America, Greenpeace USA, Hardwood Federation, National Association of Manufacturers, National Customs Brokers and Forwarders Association of America, U.S. Business Alliance for Customs Modernization, Retail Industry Leaders Association, Sierra Club, Sustainable Futures Council, and the U.S. Association of Importers of Textiles and Apparel, among others.

(See ITT’s Online Archives or 07/21/09 news, 09072105, for BP summary of first set of “business friendly” recommendations from 47 groups.)

Regulations Should be Issued to Streamline Declaration Requirements

In 2008, the Chairmen of the House Ways and Means, Senate Finance, House Natural Resources, and Senate Agriculture Committees indicated by letter that the Administration was expected to use its rulemaking authority to modify the applicability of the declaration requirement, as needed. The 52 groups want the Administration to now take this step -- as soon as possible -- and definitely before the end of 2010.

The groups want regulations that clarify and streamline the declaration’s requirements. If it is deemed that the statute does not afford the Administration sufficient authority and a legislative clarification is needed (in addition to the 2008 letter), the 52 organizations are committed to work with Congress to make a simple technical fix.

Add No More Than One More Phase, Then Create New Process

The groups recommend that the Animal and Plant Health Inspection Service (APHIS) identify by October 1, 2010 another set of products (by tariff number), for Phase V of the enforcement of the Lacey declaration, with the list of products drawn from APHIS’ September 1, 2009 list. The trade would be given six months advance notice before the phase began. All remaining products, whether on the September 1 list or not, would be put “on hold” for 12 months.

During this period, APHIS would establish and initiate a new review and petition process whereby additional tariff numbers (or product categories) may be considered for coverage by, or exclusion from, the Lacey Act declaration requirement.

The review and petition process would occur once a year. Tariff numbers (or product categories) could be proposed for Lacey declaration coverage. APHIS would then publish a preliminary determination which analyses the risk of illegally sourced plant material being included in products under the tariff numbers and the ability to accurately identify source material. Comments would be due in 90 days. Final decisions on proposed phase-ins would be issued 6 months after the publication of the preliminary determination, with new phase-ins taking effect 12 months after the publication of the preliminary determination.

Exclude Highly Processed Products Such as Textiles

There are numerous products that include, incorporate or are made from some plant product but have since undergone numerous processing steps, making identification of the plant(s) extremely difficult for declaration purposes. In some instances, the amount of plant materials included in a product is quite small and would be considered a de minimis quantity.

Examples of products that should be excluded from the declaration as highly processed products include:

• Beverages
• Cosmetics and personal care products
• Footwear, textiles and apparel
• Rubber or cork products

Exclude Composite Engineered Wood for 3-5 Years

Under current production methods, it is difficult, if not impossible, to declare the genus and species of wood used in certain composite products such as particle board or medium density fiberboard (MDF), because these products are often made from by-products left over from the manufacture and processing of other wood products. This group has agreed that Lacey declarations for particleboard (HTS 4410) and fiberboard (HTS 4411) and other equivalent engineered composite materials, and any components thereof in other products, should not be mandatory until appropriate administration agencies determine it is feasible and practical to collect the required information.

Allow More Sub-Genus Species Groupings and ‘spp’

APHIS should have discretionary authority to accept the declaration of "spp" or other relevant sub-genus species groupings where it is not technically feasible, by reasonable and practical methods, to obtain and provide species-specific information. The Forest Products Lab should lead a process to determine when such situations exist, and shall provide opportunity for input as it reviews species groupings.

The groups note that for certain timber, the combination of information regarding country of origin and well-defined genus or sub-genus groupings is sufficient for the transparency that the Lacey Act seeks to foster.

Exempt Importations Prior to Lacey Act Amendments

The Lacey Act amendments should not apply to plant and plant products that were imported prior to the enactment of the amendments. To address the issue of pre-enactment harvest, the amendments should also not apply to finished wood products or parts thereof that are imported into the U.S. if the date of manufacture of those products occurred before the effective date of the amendments. Similarly, APHIS should modify its Declaration Form to permit an importer to indicate that finished articles or parts thereof contained within the importation were manufactured prior to the effective date of the Lacey Act amendments.

Add Benefits for Recycled Wood Products

Content composed of recycled or recovered wood products should be treated in the same manner as recycled paper products (e.g. by declaring percent content that is then exempted from species/genus declaration).

Have More Flexibility for PPQ 505 Declaration

The Administration should have more flexibility to reduce the burden on importers, customs brokers, and the administering agencies in instances where doing so would not undermine the benefits of the Lacey Declaration. Examples of when flexibility is warranted include:

• when shippers regularly import the same products from the same sources
• allowing alternative, electronic, internet-based filing options directly to APHIS
• allowing importers to consolidate on a single data line all components associated with a given species/country, so that the genus/species and country are only entered once

Other

APHIS should also make permanent the decision to apply the declaration requirement to formal consumption entries only. The agency should also ensure the exclusion for packaging material applies to hang tags, labels, stickers, instructions booklets, warranty cards, and other such items, such as wine corks. The groups are also asking APHIS to expedite issuance of the definitions of “common cultivar” and “common food crops.”

(The Lacey Act was amended on May 22, 2008, by making it unlawful to import, export, transport, sell, receive, acquire, or purchase in interstate or foreign commerce a broad range of plants, as well as plant products, with some limited exceptions, taken or traded in violation of the laws of the U.S., a U.S. State, or other countries. The amendments made it unlawful to make or submit any false information or label; they also implemented an import declaration requirement and provided for civil and criminal penalties.)

(See ITT’s Online Archives or 11/12/08 news, 08111205, for BP summary of APHIS and CBP discussing liberalization of the enforcment of the Lacey Declaration.)