New APHIS Special Use Code Guide for Lacey Declaration, Warns on "Due Care"

(APHIS has stated that “due care” means that degree of care which a reasonably prudent person would exercise under the same or similar circumstances. It is applied differently to different categories of persons with varying degrees of knowledge and responsibility.

For example, zoo curators, as professionals, are expected to apply their knowledge to each purchase of wildlife. If they know that a reptile is Australian and that Australia does not allow export of that reptile without special permits, they would fail to exercise due care unless they check for those permits. On the other hand, the airline company which shipped the reptile might not have the expertise to know that Australia does not normally allow that particular reptile to be exported. However, if an airline is notified of the problem and still transships the reptile, then it would probably fail to pass the due care test.)

Chart of Special Use Codes

APHIS has updated its chart of Special Use Codes to address issues that were raised in response to Federal Register notices regarding efficient and accurate completion of the Plant and Plant Product Declaration Form, the PPQ 505. APHIS also provides an explanation of each of these Special Use Codes to address the issues.

The issues currently fall into three categories: (1) the possible use of shorthand for common trade groupings of species; (2) the possible difficulties involving in identifying composite, recycled, reused or reclaimed materials to the genus and/or species level; and, (3) the difficulty in identifying the genus and species for certain articles manufactured prior to the passage of the Lacey Act Amendments.

Special Use, genus & species codes. The revised chart lists the Special Use Codes, and each acceptable Genus and Species code, as follows:

*The previous two “Composite Materials” and “Recycled and Reclaimed Materials” Special Use groups are combined into one - called “Composite, Recycled, or Reused Plant Materials.” Note that “Driftwood” has been removed and now falls under the newly added “Reclaimed” Special Use. The prior Species Code for driftwood was “Reclaimed” and the new Species Code for “Reclaimed” (including driftwood) is “Recycled.” Also the Species Code for “Reused” has been changed from “Reclaimed” to “Reused.”

**This Special Use group was previously called “Other. Also, Musical Instrument(s) traveling to/from Performance is removed as a Special Use. According to the April 2010 Lacey Act Primer, musical instruments for performance should be reported on the PPQ 505, in box 10, and should be entered as Musical Instruments for use in performance” or, “Musical Instruments returning from performance.”

Country of Harvest. The “Country Code” column for this chart has been removed. Text has been added to state that the Country of Harvest will be known for many such entries and, if so, must be provided. If circumstances associated with the product in question are such that the country of harvest is unknown, each country of from which the plant material may have been taken must be listed. However, if this list would include more than 10 countries, a Special Use Code of “**” (two asterisks) may be used.

No Enforcement Action if Guidance is Followed

APHIS’ guidance newly states that the proper use of a Species Grouping Code in a PPQ 505 fulfills the requirements of the Lacey Act regarding the declaration of genus and species. A declaration in which a species grouping code is used to identify genus and species must include all other information required by the Lacey Act.

Provided that the other Special Use Codes listed above are properly (truthfully, accurately, completely, and appropriately pursuant to this guidance) used in a PPQ 505 that is otherwise in compliance with the requirements of the Lacey Act, APHIS will not refer for prosecution or take any other enforcement action as to such a PPQ 505 filed while this guidance is in effect, based on any failure to provide genus, species or country of harvest information as set forth in the Lacey Act amendments.

Explanation of Special Use Codes

APHIS’ new guide also includes new or revised explanations of each of the Special Use Codes provided for in the chart above.

Species Groupings

The guidance provides the following revised information on when Species Groupings can be used (additional information is underlined):

The amended Lacey Act explicitly states that the import declaration must contain both the genus and the species of the imported plant material. It further requires that if the species of plant used to produce the product that is the subject of the importation varies, and the species used to produce the plant is unknown, the declaration shall contain a list of each species of plant that may have been used to produce the plant product (previously said a list of all possible species that may be present in the product).

SPF is shorthand grouping. APHIS states that it understands that some products are commonly traded under shorthand names that stand for a specific collection of species of plants. It has been recommended that APHIS develop a list of shorthand designations that would satisfy the requirement to provide detailed genus and species information for such common nomenclature groups on each PPQ 505. The shorthand designations would stand for a specific list of species, thus satisfying the declaration requirement more efficiently.

APHIS to date has identified just one such species grouping: SPF (Spruce, Pine, Fir). SPF is a common grade of lumber manufactured from varying proportions of spruce, pine or fir species. SPF imports are a combination of several distinct species, but identifying the particular species in any individual shipment would be difficult, costly, and/or time consuming.

List of what SPF grouping includes. The SPF species grouping includes:

For such shipments of SPF, the importer may declare the genus as “Special” and the species as “SPF” to represent that the specific species are unknown but the SPF species grouping represents all possible species that may be present in the product. However, if a species of wood contained in the shipment does not fall under the species grouping list above, the SPF grouping may not be used in the declaration to identify the genus and species of plant or plant product being imported.

Other Species Groupings welcome. APHIS would welcome information from interested parties that would support the creation of additional such Species Groupings.

Composite, Recycled, Reused or Reclaimed Materials

The guidance provides the following revised information on the use of Composite, Recycled, Reused or Reclaimed Materials (additional information underlined):

Beginning October 1, 2009, APHIS began enforcement of the declaration requirements for goods in certain HTS subheadings that include some products that are composed in whole or in part of composite materials, such as medium density fiberboard, particle board, or paperboard; or recycled, reused, or reclaimed (including driftwood) materials.

Can use Special Use Code if exercised due care. APHIS notes that importers of such composite, recycled, reused or reclaimed materials may have difficulty identifying in their Lacey Act declarations the genus, species, and country of harvest of all plants in the products they are importing. If an importer of such materials is unable through the exercise of due care to determine the genus, species, and/or country of harvest of such materials, the importer should use the applicable Special Use Code set forth above.

By using the Special Use Code, the importer is representing that it is not possible through the exercise of due care to determine the genus, species, and/or country of harvest of such materials. If a product is not composed entirely of composite, recycled, reused or reclaimed materials, the importer must indicate the genus, species and country of harvest for all other product components.

(APHIS’ earlier guidance on Composite, Recycled, or Reused Materials noted that some products present a challenge to importers filing Lacey Act declarations as they are composed of composite, recycled, and/or reused materials.)

Other Special Cases

The guidance provides the following additional information on the use of Other Special Cases:

Items manufactured prior to May 22, 2008. In a limited number of situations, items presently on the declaration enforcement schedule may be manufactured in whole or in part prior to the effective date of the Lacey Act Amendments.

The manufacturer, prior to the Lacey Act Amendments, may not have tracked the sources or species of its raw materials. It may be impossible to trace back those sources after the fact. If an importer of such items manufactured prior to May 22, 2008, is unable through the exercise of due care to determine the genus, species and/or country of harvest of the plant materials contained in that item, the importer should use the applicable code set forth above.

By using the Special Use Code, the importer is representing that it is not possible through the exercise of due care to determine the genus, species and/or country of harvest of such materials. If a product is not manufactured entirely prior to May 22, 2008, the importer must indicate the genus, species and country of harvest for all product components manufactured after that date.

No plant material present. As APHIS stated in its September 2, 2009 Federal Register notice, the Lacey Act does not require that importers file a Plant and Plant Product Declaration for any shipment containing zero (0) plant material, even if the shipment contains goods in one of the HTS subheadings for which enforcement of the declaration requirement has commenced.

For example, both metal hammers and hammers with wooden handles are included in HTS Chapter 82. However, declarations only need to be filed for hammers with wooden handles. Notwithstanding that guidance, APIHS has been informed that some customs brokers have required importers of goods in one of the HTS subheadings for which enforcement of the declaration requirement has commenced to file a Lacey Act declaration even if the goods contain no plant material. Since filing a Lacey Act declaration is unnecessary for goods containing no plant material, importers facing such a demand from brokers should refer the broker to this guidance.

However, if for some unforeseen, reason the broker still requires the importer to submit a declaration for goods containing no plant material, APHIS has provided the above Special Use Code. This situation should not be common, and should only be used as needed.

(See ITT’s Online Archives or 12/08/10 news, 10120806, for BP summary of APHIS issuing a summary sheet on Special Use Codes.

See ITT’s Online Archives or 06/15/10 news, 10061444, for BP summary of APHIS’ updated guidance on Chapter 44 articles made with composite/recycled/reused materials.

See ITT’s Online Archives or 06/14/10 news, 10061424, for BP summary of APIHS issuing guidance on SPF as a Special Use Code.

See ITT’s Online Archives or 04/18/11 news, 11041817, for BP summary of CBP and APHIS officials reporting no real enforcement of the Lacey Act declaration yet.

See ITT’s Online Archives or 03/14/11 news, 11031460, for BP summary of APHIS requesting comments on its review of the Lacey Act declaration requirements.)