Tuesday, January 20, 2009

Update Regarding Implementation of the Lacey Act Amendments

(The Canadian Embassy — DFAIT)

1. Estimated Administrative Burden
On January 5, 2009, APHIS published a notice in the Federal Register requesting an extension of approval to collect information under the Lacey Act.

Under the US Paperwork Reduction Act, an executive agency must seek approval for any “information collection” (the objective is to minimize the amount of unnecessary paperwork imposed by the government). APHIS had previously sought and received emergency approval to collect information on its paper import declaration issued in early December 2008. Now it is seeking an extension of that approval for all purposes.

As a part of the extension request, APHIS is required to estimate the amount of administrative burden resulting from the requirement to file an import declaration, the number of anticipated respondents per year, and the average number of responses per respondent. In its notice, APHIS is seeking comments to assist them in evaluating the following:(1) Evaluate whether the collection of information is necessary for the proper performance of the functions of the Agency, including whether the information will have practical utility;

(2) Evaluate the accuracy of our estimate of the burden of the information collection, including the validity of the methodology and assumptions used;

(3) Enhance the quality, utility, and clarity of the information to be collected; and

(4) Minimize the burden of the information collection on those who are to respond, through use, as appropriate, of automated, electronic, mechanical, and other collection technologies, e.g., permitting electronic submission of responses.

We have clarified that the request for an extension applies to the import declaration requirement, writ large, and not/not only to the paper version of the import declaration. The estimates have been based in part on the presence of an electronic means of submitting this information. Comments are due on March 6, 2009.

2. Revise Implementation Plan Notice
We have learned that APHIS will be publishing shortly (January 16 expected date) another notice in the Federal Register setting out a revised implementation plan. This plan apparently takes into consideration comments received on APHIS’s initial Notice of October 8. Details of the plan are sketchy at this moment. However, we have been told the implementation phase-ins will now be 6 months apart (as opposed to 3 months), that the initially contemplated phase-in period will be 18 months (instead of 6 months), Chapter 6 has been dropped from initial stages of the implementation plan (the only products affected after exclusions were Christmas trees, which were considered low risk) and that the products will be identified to below the HTSUS Chapter level (to 4 and in some cases 6 digits).

Moreover, we understand that APHIS has given serious consideration to the “blanket” or accumulated declaration alternative and the use of common commerical terms, such as SFP and hem-fir, although these will not be addressed in the plan. The plan apparently is still to use the Fish and Wildlife Service legacy database for the collection of information. We have no information about integration of this system with existing CBP portals.

3. “Common Cultivar” and “Common Food Crop” Definitions
We have been advised that APHIS will not/not publish its definitions for “common cultivar” and “common food crop” for at least a few months, given that the definitions are not relevant to product categories implicated in the initial phases of the implementation plan, further reinforcing our information that Chapter 6 will be dropped from initial phases.