USDA Proposes Phased-in Implementation of New Lacey Act Declaration Requirement for Imported Goods

(Sandler, Travis & Rosenberg, P.A.)

Importers of most goods subject to the new declaration requirement under the amended Lacey Act will no longer need to comply with the December 15 statutory deadline under a new proposal from the Department of Agriculture. The USDA is proposing to begin a phased-in enforcement around April 1, 2009, but most importers would not have to comply until at least July 1, 2009. The proposal appears to respond to the concerns that both industry and federal agencies have expressed about their ability to meet the impending compliance deadline. The USDA has also provided more details about the products that are and are not subject to this requirement.

Enforcement
Under the 2008 Farm Bill, importers of plants or plant products, including wood and wood products, must submit upon entry a declaration that includes the genus and species of the plant(s) used, the value and quantity of the importation and the country of origin of the imported product. U.S. Customs and Border Protection is currently developing an electronic system that will collect this information, and the USDA states that it intends to begin enforcement of the declaration requirement once that process is completed (currently anticipated around April 1, 2009). In addition, the USDA has proposed the following enforcement schedule:

• From the present to March 31, 2009, the USDA will make available on its Web site a paper declaration form that will be accepted after December 15. The department will also conduct domestic and international outreach concerning the declaration requirement. There will be no prosecutions during this time for failing to complete the paper declaration form; however, any person who submits a form containing false information may be prosecuted.

• Beginning April 1, 2009, (or as soon thereafter as an electronic system to collect the required declarations is available), the USDA will enforce the declaration requirement for HTSUS chapters 44 (wood and articles thereof) and 6 (live trees, plants, bulbs, cut flowers, ornamental foliage, etc.).

• Beginning July 1, 2009 (approximate), the USDA will enforce the declaration requirement for the above chapters as well as chapters 47 (wood pulp), 48 (paper and articles thereof), 92 (musical instruments) and 94 (furniture).

• After September 2009 there will be phased-in enforcement for additional chapters, including (but not limited to) 12 (oil seeds, miscellaneous grains, seeds, fruits, plants, etc.), 13 (gums, lacs, resins, vegetable saps, extracts, etc.), 14 (vegetable plaiting materials and products not elsewhere specified or included), 45 (cork and articles thereof), 46 (basket ware and wickerwork), 66 (umbrellas, walking sticks, riding crops), 82 (tools), 93 (guns), 95 (toys, games and sporting equipment), 96 (brooms, pencils and buttons) and 97 (works of art). A specific phase-in schedule for these chapters will be announced later.

Scope
The USDA states that the scope of products that will require a declaration under the Lacey Act amendments is broad and includes certain live plants (not to be replanted), plant parts, lumber, wood pulp, paper and paperboard, and products containing certain plant material or products, which may include certain furniture, tools, umbrellas, sporting goods, printed matter, musical instruments, products manufactured from plant-based resins and textiles. The department has indicated that it does not believe it has the authority to set a de minimis standard under which products with only trace amounts of covered plants or plant products would be excluded from the declaration requirement.

Exemptions
There are three categorical exemptions from the new declaration requirement, including common cultivars (except trees) and common food crops. The USDA and the Interior Department are currently working on a joint rulemaking that will define these terms.

Comments/Meeting
The USDA is accepting public comments on its implementation of the declaration requirement, including the above enforcement schedule, by Dec. 8. In addition, the USDA will host a public meeting on these issues Oct. 14 in Washington, D.C. Additional meetings are likely to be held this winter near key port locations and will be announced at a later date.

ST&R is closely following all issues concerning the Lacey Act amendments and can help you understand how it applies to your company’s products and operations. For more information, including assistance in preparing comments on the USDA’s proposal, please contact:

Edward Steiner, Washington, D.C.
Tel: (202) 216-9307 • Fax: (202) 842-2247
esteiner@strtrade.com