APHIS Officials to Take a ‘Pragmatic Approach’ to New Lacey Act Declaration for Imported Plants and Plant Products

(International Trade Today)

The USDA’s Animal and Plant Health Inspection Service held a public meeting on October 14, 2008 to discuss the Lacey Act Amendment declaration requirement1 for imported plants and plant products that is scheduled to be enforced on a phased-in basis once the declaration can be filed electronically (approximately April 1, 2009).

Highlights of this meeting include the following statements by officials (note that some decisions on product exclusions may not be final):

Core Purpose of Lacey Act Amendments is to Stem Illegal Logging
The core purpose of the Lacey Act amendments is the prevention of illegal logging. It is not to ‘push the envelope or to hang people up on technicalities.’ (The Lacey Act amendments require an import declaration for plants and plant products that includes the scientific name of any plant, a description of the value, quantity, and the name of the country from where the plant was taken. If a plant species and/or country of origin cannot be determined, the plant declaration must include a list of possible plant species found in the product and/or a list of possible countries from which the plant originated.)

HTS Chapter 44 Wood and Chapter 6 Plants are the Focus of Act
HTS Chapter 44 (wood and articles of wood) and Chapter 6 (live trees, plants, bulbs, ornamental foliage, etc.) products are clearly the focus of the Lacey Act amendments, and are therefore the first product groups to be subject to enforcement of the declaration requirement.

Textile and Apparel Goods
The definition of common cultivars (a categorical exemption) is expected to include cotton, which would exempt cotton and its products from the declaration requirements. In addition, other plant-based textiles and their products are expected to be exempt from the declaration requirements.

Manuals, Hangtags, and Labels Accompanying Products
Manuals and instructions, labels, and hangtags, which accompany products, are not expected to require a declaration.

Plant-Based Plastics, Etc.
Plant-based plastics, polyethylene, adhesives, and cellulosic products are still under discussion, but are unlikely to require a declaration.

Personal Use Shipments
Officials are leaning toward exempting personal use shipments from the declaration requirements.

Re-Imported Products
Officials have not yet discussed the issue of whether re-imported products would be subject to the declaration requirement.

FTZ Shipments
The declaration would be required upon entry into the foreign trade zone.

T&E, FROB, IE Shipments
Transportation and Exportation (T&E) shipments, Foreign Cargo Remaining On Board (FROB), and Immediate Exportation (IE) shipments would not be subject to the declaration requirement as they are not “imported”.

Carnets
Carnets have not been discussed yet, but officials are leaning toward not requiring a declaration for carnets.

Importers Should Wait for Electronic Option to File Declarations
Importers should not file any declarations until the electronic option is available. Once the electronic system is up and running, importers need to be ready to submit the declaration according to the product phase-in schedule. (Should it become apparent that the legacy Fish and Wildlife Service (FWS) electronic system will not be ready for the declaration until some months after April 2009, officials may have to reconsider the use of paper declarations.)

Additional Information:

• APHIS’ proposed phase-in schedule (D/N APHIS-2008-0119) available at here (PDF).
• Lacey Act amendments “Hot Issues” page available here (PDF).
• Amended version of law (showing P.L. 110-236 amendments) available at here (PDF).
• APHIS PowerPoint presentation on notice (dated 10/06/08) available at here (PDF).
• APHIS genus/species “look up” guide available here.