Lacey Act Update: Proposed Rule on Definitions for Exempt and Regulated Articles Is Published

(Lexology – Karen Lobdell, Drinker Biddle & Reath LLP)

The Animal and Plant Health Inspection Service (APHIS) published the long-awaited Proposed Rule August 4, 2010, providing the definitions for Exempt and Regulated Articles under the Lacey Act. [...]

APHIS plans to supplement these definitions by providing guidance in the form of a list of examples of plant taxa or commodities that qualify for exemption. The United States Department of Agriculture and Department of Interior will develop and maintain this list on a website, updating it as necessary. Updates will also be noted on the APHIS website. The list will not be exhaustive, and will also provide an email address to which the public can send inquiries regarding specific taxa or commodities, and request additional taxa and commodities be added to the list.

Comments on this Proposed Rule are being accepted on or before October 4, 2010, and may be submitted on the Federal eRulemaking Portal.

Finally, we note that on August 4, 2010, CBP advised the Commercial Operations Advisory Committee (COAC) at its quarterly meeting that there are currently no plans for additional phases to be implemented to the Lacey Act to include more HTSUS Headings. This had been a concern for the trade since the previous FR Notice had indicated that there was a possibility of additional phases being implemented after September 1, 2010. Read more here.

Lacey Act Declaration Reminder

Units of Measure Must Now be Metric

Clients are reminded that as per U.S. Animal and Plant Health Inspection Service (APHIS) all plant material quantities be reported on the Lacey Act declaration should now be using standardized metric units (such as kg, m, m2, m3).

The values are to reflect the actual plant content in the product and not necessarily the product as a whole.

APHIS is no longer accepting other counts of items (e.g., PCS - pieces, No - number, boxes, etc) as valid units of measure.

APHIS notes that counts of items do not adequately address the “quantity of the plant material” required by the Act.(3372.f.1.A.ii) Counts do not allow for differences in size or weight between items, nor do they accurately reflect the actual plant content in a shipment.

Metric Units Now Required on Lacey Act Declarations

(World Trade Interactive)

The Lacey Act amendments of 2008 require the Department of Agriculture’s Animal and Plant Health Inspection Service to collect information on the importation of plant material using a Plant and Plant Product Declaration (form PPQ-505). This information must include the quantity and unit of measure of the imported plant material.

In an effort to create a uniform dataset, APHIS is requiring that plant material quantities be reported on the declaration using standardized metric units (kilograms, meters, square meters, etc.). These values should reflect the actual plant content in the product and not necessarily the product as a whole. While this requirement took effect May 1, APHIS is allowing a two-month grace period (ending July 1) to allow industry to make the needed changes to declaration procedures.

As a result of this change, APHIS will no longer accept counts of items (pieces, boxes, etc.) as valid units of measure on the declaration. APHIS states that item counts do not allow for differences in size or weight between items and do not accurately reflect the actual plant content in a shipment.

USDA Clarification on Quantity and Unit of Measure [Lacey Act Amendments]

(CIFFA eBulletin)

The Lacey Act Amendments of 2008 require APHIS to collect information on the importation of plant material, using a Plant and Plant Product Declaration (known as the PPQ505). The quantity and unit of measure of the imported plant material must be declared. In an effort to create a uniform dataset, APHIS will no longer accept counts of items (PCS - pieces, No - number, Boxes, etc) as valid units of measure. Counts of items do not adequately address the “quantity of the plant material” required by the Act.(3372.f.1.A.ii) Counts do not allow for differences in size or weight between items, nor do they accurately reflect the actual plant content in a shipment.

Beginning May 1, 2010, APHIS is requiring that plant material quantities be reported on the declaration using standardized metric units (kg, m, m2, m3). The values should reflect the actual plant content in the product and not necessarily the product as a whole. For an example click here.

Next Phase of Lacey Act Declaration Enforcement Slated to Begin April 1

(World Trade Interactive)

The next phase of enforcement of the import declaration requirement under the Lacey Act is slated to begin April 1.

Under the amendments to the Lacey Act that included in the 2008 Farm Bill, imports of certain plants and plant products must be accompanied by an import declaration that contains, among other things, the scientific name of the plant, the value of the importation, the quantity of the plant and the name of the country from where the plant was harvested. For paper and paperboard products containing recycled content, the declaration also must include the average percent of recycled content without regard for species or country of harvest.

The import declaration requirement currently applies to items classified under HTSUS headings 4402 (wood charcoal); 4412 (plywood, veneered panels), except 4412.99.06 and 4412.99.57; 4414 (wooden frames); 4419 (tableware and kitchenware); and 4420 (wood marquetry, caskets, statuettes).

Beginning April 1, this requirement will be expanded to include items classified under the following HTSUS headings.

• 4421 (other articles of wood)
• 6602 (walking sticks, whips, crops)
• 8201 (hand tools)
• 9201 (pianos)
• 9202 (other stringed instruments)
• 9302 (revolvers and pistols)
• 9305.10.20 (parts and accessories for revolvers and pistols)
• 9401.69 (seats with wood frames)
• 9504.20 (articles and accessories for billiards)
• 9703 (sculptures)

USDA has previously stated that for any future enforcement phases it intends to provide at least six months’ notice to affected persons and industries to facilitate compliance. Last fall USDA indicated that the next phase would begin no earlier than Sept. 1.

Survey Regarding U.S. Lacey Act Implementation – Deadline Today

(IE Canada)

Today is the last day to provide input to the survey established by I.E.Canada and the Canadian Manufacturers and Exporters regarding implementation of amendments to the Lacey Act. The overall results of this survey will assist with advocacy efforts in the U.S., and be shared with the Canadian Embassy in Washington.

The survey, which covers issues such as requests for compliance certificates from U.S. customers and import declarations under the Lacey Act, is available on Survey Monkey here.

Questions about the survey should be directed to Carol Osmond at cosmond@iecanada.com.

Implementation of Revised Lacey Act Provisions

(USDA/APHIS via World Trade Interactive)

Declaration Enforcement Postponed for Numerous Products

The U.S. Department of Agriculture, Animal and Plant Health Inspection Service, has issued a notice modifying the schedule of enforcement of the import declaration requirement under the Lacey Act amendments. This modification postpones enforcement for numerous products. Comments on this action are due by Nov. 2 (refer to APHIS-2008-0119 for contact details).

Under the Lacey Act amendments included in the 2008 Farm Bill, imports of certain plants and plant products must be accompanied by an import declaration that contains, among other things, the scientific name of the plant, the value of the importation, the quantity of the plant and the name of the country from where the plant was harvested. For paper and paperboard products containing recycled content, the declaration also must include the average percent of recycled content without regard for species or country of harvest. USDA began phasing in its enforcement of this requirement in December 2008.

After a review of comments received, further internal consideration and experience with implementation of the first phase of enforcement of the declaration requirement, the USDA has revised the phase-in schedule as follows. USDA emphasizes, however, that Lacey Act amendment provisions other than the import declaration are already effective and that actions to enforce those provisions may be taken at any time.

Revised List for Phase III

Phase III, which is scheduled to begin Oct. 1, now covers only items classified in the following HTSUS headings.

• 4402 (wood charcoal)
• 4412 (plywood, veneered panels), except 4412.99.06 and 4412.99.57
• 4414 (wooden frames)
• 4419 (tableware and kitchenware)
• 4420 (wood marquetry, caskets, statuettes)

Revised List for Phase IV

Phase IV, scheduled to begin April 1, 2010, has been substantially revised and now covers the following HTSUS headings.

• 4421 (other articles of wood)
• 6602 (walking sticks, whips, crops)
• 8201 (hand tools)
• 9201 (pianos)
• 9202 (other stringed instruments)
• 9302 (revolvers and pistols)
• 9305.10.20 (parts and accessories for revolvers and pistols)
• 9401.69 (seats with wood frames)
• 9504.20 (articles and accessories for billiards)
• 9703 (sculptures)

Future Changes

USDA states that there will be no further additions to phases III or IV and that it intends to provide at least six months’ notice to persons and industries affected by any future changes to facilitate compliance with the new requirements.

In addition, USDA is seeking comments on the following HTSUS headings currently under consideration for subsequent enforcement phases that would be scheduled to begin on or after Sept. 1, 2010.

• 4405 (wood wool [excelsior])
• 4410 (particle board)
• 4411 (fiberboard of wood)
• 4412 (plywood, including 4412.99.06 and 4412.99.57)
• 4413 (densified wood)
• 4415 (packing cases, boxes, crates, drums)
• 4416 (casks, barrels, vats, tubs)
• 4701 (mechanical wood pulp)
• 4702 (chemical wood pulp, dissolving)
• 4703 (chemical wood pulp, sulfate)
• 4704 (chemical wood pulp, sulfite)
• 4705 (combination mechanical and chemical)
• 4801 (newsprint)
• 4802 (uncoated writing paper)
• 4803 (toilet or facial tissue stock)
• 4804 (uncoated kraft paper)
• 4805 (other uncoated paper and board)
• 4806 (vegetable parchment, etc.)
• 4807 (composite paper and board)
• 4808 (corrugated paper and board)
• 4809 (carbon paper)
• 4810 (coated paper and board)
• 4811 (paper coated, etc.)
• 6601 (umbrellas)
• 6603 (umbrella parts)
• 9205 (wind musical instruments)
• 9401 (seats)
• 9403.30 (wooden office furniture)
• 9403.40 (wooden kitchen furniture)
• 9403.50 (wooden bedroom furniture)
• 9403.60 (other wooden furniture)
• 9403.81 (furniture of cane, osier, bamboo, rattan or similar materials)
• 9504 (articles for arcade, table or parlor games)


Finally, USDA continues to consider the applicability of the import declaration requirement to other products not included in the revised phase-in schedule or listed above and seeks comment on how this requirement should be enforced as to additional goods classified under the following HTSUS chapters.

• chapter 48 (paper and articles of)
• chapter 82 (tools, implements)
• chapter 89 (ships, boats and floating structures)
• chapter 93 (arms and ammunition)
• chapter 94 (furniture, etc.)
• chapter 95 (toys, games and sporting equipment)
• chapter 96 (brooms, pencils, buttons)

Enforcement Delayed for Composite, Recycled, Reused Materials

Several commenters contended that identifying composite and recycled or reused materials (e.g., medium density fiberboard, particleboard and scrap wood) to the genus and/or species level would be difficult and in some cases impossible. In response to those comments, USDA has decided to further delay enforcement of the declaration requirement for these products so that it would begin no earlier than Sept. 1, 2010.

Use of Spp. to Identify Species of Imported Plants

Several commenters proposed that USDA allow for importers to provide only the genus name in circumstances where the individual species would be difficult to identify. USDA has responded by stating that in circumstances where the list of possible species in a particular product includes all species in a genus, it is acceptable to use “spp.” following the genus name on the import declaration form. However, when reference to all possible species in a genus is not accurate (based on geographical or other factors), importers are expected to provide either the single genus and species or a specific list on the import declaration form of all possible species that may have been used to produce the plant product.

Federal Register Reference: Implementation of Revised Lacey Act Provisions, September 2, 2009 available here (PDF).

CP Notice: U.S. Department of Agriculture (USDA) Animal and Plant Health Inspection Service (APHIS) Lacey Act Blanket Declaration Pilot Program

(CP Rail)

This is further to our Customer Bulletin of March 24, 2009, concerning USDA APHIS implementation of the Revised Lacey Act Provisions.

This update will be of particular interest to Shippers and U.S. Importers who:

a) Ship / Import goods to the U.S. subject to Lacey Act provisions b) Participate in U.S. Customs and Border Protection's (USCBP)

Automated Line Release (ALR) program The USDA is introducing a blanket Declaration Pilot Program for shippers using the USCBP ALR program.

The Pilot Program allows importers and shippers currently using ALR codes to continue doing so provided they participate in the Pilot. Those who do not participate in the program will have their ALR C4 code inactivated effective June 1, 2009.

The Lacey Act Blanket Declaration Pilot Program is open only to those entities currently participating in one of Customs and Border Protection's expedited border release programs, Automated Line Release (ALR) or Border Release Advance Screening and Selectivity (BRASS). This pilot program will test the feasibility of collecting the information required through the use of a periodic "blanket" declaration, with subsequent reconciliation reports.

Eligible importers who wish to participate in the pilot must send a letter to APHIS (to the address provided below) specifically requesting participation in the program. The letter must contain the importer's C4 code and the name and telephone number of an individual who will serve as a point of contact should APHIS require additional information.

The blanket declaration must be submitted in paper form and mailed to:
Lacey Act c/o U.S. Department of Agriculture
Box 10 4700 River Road • Riverdale, MD 20737

Canadian Pacific strongly encourages shippers and U.S. importers to review the details of this program. Participation will protect your Automated Line Release reporting privileges and help facilitate the cross border fluidity of your Lacey Act eligible goods.

Details on the USDA APHIS Program are available at the USDA website. Specific questions should be directed to your customs broker or the USDA APHIS.

Blanket Declaration Pilot Program for Automated Line Release or Border Release Advance Screening and Selectivity Programs [Lacey Act]

(CBP)

The government will begin a pilot program on May 1, 2009, initially open to those entities currently participating in one of CBP’s expedited border release programs, Automated Line Release (ALR) or Border Release Advance Screening and Selectivity (BRASS), and whose products require a Lacey Act declaration during the current phase of enforcement. This pilot program will test the feasibility of collecting the information required through the use of a periodic “blanket” declaration, with subsequent reconciliation reports. Entities currently participating in ALR or BRASS will be able to choose whether to remain active in the expedited program and participate in this pilot program or be removed from the expedited program.

If the participant’s choice is to be removed from the expedited program, no further action is necessary. Effective June 1, 2009, that participant’s C4 code will be inactivated. If the participant’s choice is to remain on the expedited release program and participate in the blanket declaration pilot program, the participant must notify APHIS and CBP that they wish to remain in ALR or BRASS and agree to provide information as required by the pilot program. We currently plan to implement the pilot program using the following two step process.

Step 1
The participant must file with APHIS an advance estimated PPQ 505. Initially, and for purposes of this pilot, the estimated PPQ 505 must be filed on a monthly basis. It must include all data elements required on the PPQ 505. Genus, species, value, and quantity fields should be an estimation of the participant’s planned imports during the next calendar month. The estimated PPQ 505 must be filed on or before the 15th day of the month prior to the reporting period. The deadline for the first estimated PPQ 505 is May 15, 2009, covering expedited release shipments planned for the month of June 2009.

Step 2
The participant must file with APHIS reconciliation within 15 days after the end of the month. This reconciliation will be submitted in a format to be established and made available on the APHIS website. The reconciliation will provide information on the actual shipments made during the previous month. The deadline for the first reconciliation is July 15, 2009.
Please see related guidance at the CBP website.

Lacey Act Import Declaration Now Required for Certain Wood Products

(World Trade Interactive)

The first phase of enforcement of the new Lacey Act import declaration requirement for plants and plant products went into effect May 1. Subsequent phases are scheduled to be rolled out every six months. U.S. Customs and Border Protection recently posted to its Web site guidance on complying with this requirement.

Covered Products
As of May 1, imports of the following products must accompanied by an import declaration (form PPQ 505) containing the scientific name of the plant from which they were obtained, the value of the importation, the quantity of the plant and the name of the country from which the plant was harvested.

• fuel wood (HTSUS 4401)
• wood in the rough (HTSUS 4403)
• hoopwood; poles, piles, stakes (HTSUS 4404)
• railway or tramway sleepers (HTSUS 4406)
• wood sawn or chipped lengthwise (HTSUS 4407)
• sheets for veneering (HTSUS 4408)
• wood continuously shaped (HTSUS 4409)
• tools, tool handles, broom handles (HTSUS 4417)
• builders’ joinery and carpentry of wood (HTSUS 4418)

Expedited Release
The government began May 1 a pilot program for those entities currently participating in Automated Line Release or Border Release Advance Screening and Selectivity whose products require a Lacey Act declaration during the current phase of enforcement. Under this pilot, participants must choose whether or not to remain active in the expedited program. If a participant opts to be removed, no further action is necessary and the C4 code will be inactivated effective June 1. Those who opt to remain in the expedited release program must complete the following two-step process.

• The participant must file with the Department of Agriculture an advance estimated PPQ 505 that includes all required data elements. The genus, species, value and quantity fields should be an estimation of the participant’s planned imports during the next calendar month. The estimated PPQ 505 must be filed on or before the 15th day of the month prior to the reporting period; e.g., the first estimated PPQ 505 will cover expedited release shipments planned for June and will be due by May 15.

• The participant must file with the USDA, within 15 days after the end of the month, a reconciliation that provides information on the actual shipments made during the previous month. The deadline for the first reconciliation is July 15. The USDA will make the format of the reconciliation available at a later date.

This process must be completed monthly during the pilot. The U.S. government will rely on the collected data in its reports to Congress and in determining possible refinements and extensions to enlarge the process and make it less burdensome for all involved.

Note: CBP has posted Guidance on the Lacey Act Declaration on its website here.

CN Message: Lacey Act Requirements

(CN via CSCB)

Reminder to all customers shipping plants and plant products to the U.S.: As previously communicated, the U.S. Animal and Plant Health Inspection Service (APHIS) announced an amendment to the Lacey Act, part of the 2008 Farm Bill (also known as the Food, Conservation, and Energy Act of 2008), the enforcement of which will be phased in beginning April 2009.

The Lacey Act now makes it unlawful to:

• import, export, transport, sell, receive, acquire, or purchase in interstate or foreign commerce any plant, with some limited exceptions, taken in violation of the laws of a U.S. state or any foreign law that protects plants.

• make or submit any false record, account, or label for, or any false identification of, any plant.• import certain plants and plant products without an import declaration. The declaration must contain, among other things, the scientific name of the plant, value of the importation, quantity of the plant, and name of the country from where the plant was harvested. For paper and paperboard products containing recycled content, the declaration also must include the average percent of recycled content without regard for species or country of harvest.

Please ensure you review Lacey Act requirements with your U.S. customs broker. It is your customs broker’s role to ensure all information pertinent to the Lacey Act declaration is provided to U.S. Customs and Border Protection (CBP) at the time that release entry is filed.

Commodities affected by the Lacey Act requirements are broad in scope and include any level of plant product that may be part of the commodity or manufactured into the components of the commodity with no minimum amount exempt.

Preventable customs holds or set-outs at the border due to non-regulatory compliance will be subject to applicable CN tariff items.

The notice is available on the CN website (PDF).

Update Regarding Implementation of Lacey Act Amendments

(Canadian Embassy via IE Canada)

A notice was published in the Federal Register earlier this week with the revised implementation plan for the Lacey Act amendments. A copy of the notice is available here.

Below is a further update provided by the Canadian Embassy regarding a recent meeting with the United States Trade Representative (USTR) with respect to the revised Lacey Act implementation plan. We were asked not to distribute this update until the revised implementation plan was published.

The information provided in this update should be verified against the Federal Register notice.

Canadian Embassy Update

On Thursday, January 15, Kevin Thompson, Counsellor (Trade Policy), Canadian Embassy and a representative from the European Commission Mission in Washington (EC) met with USTR to discuss the respective comments filed by Canada and the EC to the APHIS Lacey Act Implementation Plan Federal Register Notice of October 8. We wanted to use the opportunity to underscore key points in our respective submissions and to seek additional information on the next steps in the Administration’s implementation plan for the import declaration. The following are the key points coming out the meeting:

1. APHIS anticipates issuing a revised implementation plan and schedule early next week. There will be substantial changes to the schedule as it appeared in the October 8 Notice. The USG has revised its approach to identify a positive list of products for which the declaration will be required (as opposed to an all encompassing requirement, subject to exceptions).

From what we were able to gleam, the implementation plan will be broken into three six month phases:

Phase I – April to September 30, 2009, covering
• 4401, 4403, 4404, 4407, 4408, 4409, 4417, 4418

Phase II – October 1 to March 31, 2010, covering
• 4402, 4405, 4410 to 4416, 4419, 4420 and 4701 to 4705

Phase III – April 1 to September 30, 2010
• 4421, 4801 to 4811 and 940169, 9403.03 to 9403.07

You will note the following:

• The 3 phases only apply to wood and wood products. Chapter 44 is divided into Phase I and II.

• Chapter 6 has been dropped off the implementation schedule (will not apply to horticultural plants or Christmas Trees)

• the implementation plan takes the USG to the end of the 2 year period before which a review can taken place under the legislation. Thus, product categories not on this list will likely not be subject to import declaration before the completion of the review. USG intends to conduct studies of whether to include other products beyond what is identified in this revised schedule.

• Chap 4706 and 4707 will not be included because this encompasses recovered (waste and scrap) material. Intention is not to collect information if the answer is already known.

• Import Declaration will only be required for the good that is being imported and that is identified on the implementation schedule (for instance, it will not be required for any manuals or labels that accompany the good being imported).

2. Phase I of the schedule is fixed. However, USG will be eliciting comments on Phases II and III. The USG encourages comments on an ongoing basis describing the process as very fluid.

3. In terms of the electronic entry system, CBP is currently working on modifications to the Automated Commercial System (ACS). Thus, in order to avoid duplication of information, the intention is not to have a completely separate system, but to integrate additional information requirements into existing ACS environment.

4. Ideally, USG would like to have electronic system operational for several weeks (possibly a month) before the declaration requirement becomes enforceable, to enable trade to practice. That’s the plan, although it may not be realistic.

5. Paper Declarations – no declarations have been filed to date. Apparently, APHIS has set up a mailbox for imports to send voluntary declarations.

6. Time of submission – the rules for when the import declaration will have to be submitted will likely be the same as existing rules for other types of customs documentation (time of entry, time of release)

7. Import declaration information will likely be governed by same confidentiality requirements as other types of customs documentation. However, it is anticipated that some form of aggregate information will be publicly released (ENGOs are pushing for this)

8. Database of internationally recognized scientific names. Currently, CBP is contemplating a drop-down menu for specifying scientific names.

9. Use of commercial short-form nomenclature (e.g. SPF). Unlikely at this stage. Statute requires genus and species.

10. Blanket or Simplified Declaration – Discussions are underway regarding the use of a simplified declaration such as that suggested by Canada. However, it appears unlikely that they will be able to implement by April 1. USTR would welcome any additional suggestions we would have to operationalize the simplified declaration.

11. Wood Packaging – Chapter 4415. USTR encourages us to raise this issue again in order to highlight difficulties.

Lacey Act Notification

The USDA notice (that originally was to have been published in the Federal Register Jan. 23 but was withdrawn for further review in light of a White House directive) can now be downloaded from our website (PDF).

USDA Eases Lacey Act Declaration Requirement for Imported Goods

(World Trade Interactive)

The Department of Agriculture has announced various steps that will ease the new import declaration requirement under the amended Lacey Act. These changes address the scope of the declaration requirement, the timeframe for implementation, the definition of certain terms, effects on trade and industry, and enforcement issues.

(The USDA notice had been scheduled to be published in the Federal Register Jan. 23 but has been withdrawn for further review in light of a White House directive.)

Enforcement Delayed
Imports of certain plants and plant products must be accompanied by import declaration containing the scientific name of the plant, the value of the importation, the quantity of the plant and the name of the country from where the plant was harvested. For paper and paperboard products containing recycled content the declaration must also include the average percent of recycled content regardless of species or country of harvest.

U.S. Customs and Border Protection is currently modifying the Automated Commercial System to collect this information and the USDA does not plan to begin enforcement of the declaration requirement until that process is completed, which CBP continues to anticipate will be no later than April 1, 2009.

However, in response to public comments, the USDA is extending the schedule of phased-in enforcement of the declaration requirement and has provided a list of products that fall within each phase, as follows.

• Present–March 2009 (phase I): plant import declaration form available on USDA Web site; domestic and international outreach will be conducted

• April 1–Sept. 30, 2009 (phase II): HTS headings 4401(fuel wood), 4403 (wood in the rough), 4404 (hoopwood; poles, piles, stakes), 4406 (railway or tramway sleepers), 4407 (wood sawn or chipped lengthwise), 4408 (sheets for veneering), 4409 (wood continuously shaped), 4417 (tools, tool handles, broom handles), and 4418 (builders’ joinery and carpentry of wood)

• Oct. 1, 2009–March 31, 2010 (phase III): in addition to phase II, HTS headings 4402 (wood charcoal), 4405 (wood wool [excelsior]), 4410 (particle board), 4411 (fiberboard of wood), 4412 (plywood, veneered panels), 4413 (densified wood), 4414 (wooden frames), 4415 (packing cases, boxes, crates, drums), 4416 (casks, barrels, vats, tubs), 4419 (tableware and kitchenware), 4420 (wood marquetry; caskets; statuettes), 4701 (mechanical wood pulp), 4702 (chemical wood pulp, dissolving), 4703 (chemical wood pulp, sulfate), 4704 (chemical wood pulp, sulfite), and 4705 (combination mechanical and chemical)

• April 1–Sept. 30, 2010 (phase IV): in addition to phase III, HTS headings 4421 (articles of wood, not elsewhere specified or included), 4801 (newsprint), 4802 (uncoated writing paper), 4803 (toilet or facial tissue stock), 4804 (uncoated kraft paper), 4805 (other uncoated paper and board), 4806 (vegetable parchment, etc.), 4807 (composite paper and board), 4808 (corrugated paper and board), 4809 (carbon paper), 4810 (coated paper and board), 4811 (paper coated, etc. other than 4803, 4809 or 4810), 9401.69 (seats with wooden frames), 9403.30 (wooden office furniture), 9403.40 (wooden kitchen furniture), 9403.50 (wooden bedroom furniture), 9403.60 (other wooden furniture), 9403.90.70 (wooden furniture parts)

The USDA is seeking comments by March 24 on (a) the products covered under phases III and IV, (b) whether any additional HTS chapters should be included in this schedule and (c) how the declaration requirement should be enforced with respect to products not listed in this schedule.

Scope of Affected Goods Narrowed
The USDA will only require a declaration for the product being imported and not for sundries that ordinarily accompany it, such as tags, labels, manuals and warranty cards.

In addition, the USDA will only enforce the declaration requirement for formal consumption entries (i.e., most commercial shipments). It does not currently intend to enforce the declaration requirement with respect to informal entries (i.e., most personal shipments), personal importations or mail (unless subject to formal entry), transportation and exportation entries, in-transit movements, carnet importations (i.e., merchandise or equipment that will be re-exported within a year) and foreign-trade zone and warehouse entries.

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.

Risks and Rewards

(Bernie Hart — Gulf Shipper)

The top nine challenges in ’09 for global supply chains

Importers and exporters may face significant unexpected costs and increased disruptions in 2009 if they do not properly address challenges to their supply chains, sourcing strategies and the flow of working capital. Some of these are hangovers from 2008’s economic turbulence, while others are just starting to develop. But the outlook isn’t all bad. There also are some promising opportunities.

Below are nine trends that will challenge multinational businesses for at least the next 12 months…

New import challenges: The amended Lacey Act

The U.S. is now the first country in the world to prohibit the import, export, sale or trade in illegally harvested wood and wood products. An amendment to the 108-year-old Lacey Act will require detailed reporting (scientific name, quantity, value and country) of any plant matter incorporated into an imported product brought into the United States. This law broadly covers plants used in processing, no matter how miniscule the amount and no matter how far removed from the harvesting of the plant. The amendment could have significant consequences for U.S. importers who will be subject to new data reporting requirements. The specific scope of what items are covered under the amendment is still being defined, with Congress acting to reduce the burden on trade. For example, plant matter used in the creation of shipping labels and manuals may not have to be reported. The first phase of enforcement is expected to begin in April. Violations of the Lacey Act provisions are expected to be prosecuted through either civil or criminal enforcement actions.

Read the complete article here.

Lacey Act Import Declaration Form

(IE Canada)

The Plant and Plant Product Declaration Form (PPQ Form 505), the import declaration form that has been developed for purposes of implementation of the Lacey Act Amendments, is available for use and has been posted on the APHIS website here (PDF).

As of December 15, 2008, this paper declaration form is being accepted on a voluntary basis. Filing of the declaration form will not become mandatory until April 2009, when Customs and Border Protection hopes to have an electronic process in place for filing the forms.

As the paper form will serve as the basis for the electronic declaration, IE Canada wants to receive comments that members may have regarding the form. Send your comments to Amesika Baeta at abaeta@iecanada.com.

Lacey Act Amendments – Deadline to Comment on NPRM December 8, 2008

(IE Canada)

A Notice of Proposed Rule-Making (NPRM) with respect to implementation of amendments to the Lacey Act appeared in the U.S. Federal Register on October 8, 2008. Comments must be submitted by December 8, 2008.

A copy of the NPRM is available on the United States Department of Agriculture website at here. This website also includes other useful information, including the transcript of a public meeting held on October 14, 2008 by the United States Animal and Plant Health Inspection Service (APHIS) to discuss implementation and answer questions regarding the new Lacey Act requirements.

The 2008 Farm Bill enacted in June 2008 expanded the Lacey Act to prohibit trade in products made from illegally harvested or traded plants and plant products, including trees. (The Lacey Act prohibits trade in wildlife, fish, and plants that have been illegally taken, possessed, transported or sold.) The amendments also established a new import declaration requirement for ALL plants and plant products imported into the United States, which must include the scientific name of any plant used to produce plant products, including the genus and species, and the country of harvest of the plant. This new import declaration is scheduled to be enforced on a phased-in basis once the declaration can be filed electronically (anticipated for April 1, 2009). Importers may file a paper declaration on a voluntary basis as of December 15, 2008.

A broad range of products is subject to the law, including furniture, paper, wood flooring, wine with corks, musical instruments, pharmaceutical products, textiles and wearing apparel, lipstick, cigarettes, dried soup, hairspray, umbrellas, boats, chewing gum, pots and pans with wooden handles, maple syrup and any product that comes with an instruction booklet or hang tags.

IE Canada would like to hear from those with concerns about implementation of the Lacey Act Amendments. If you wish to take advantage of this opportunity to comment on the Notice of Proposed Ruling Making. Please provide your comments to Amesika Baeta at abaeta@iecanada.com or (416) 595-5333, ext. 41 by Wednesday, December 3, 2008.

Live Teleconference: Lacey Act Changes

(Journal of Commerce)

The Journal of Commerce will be holding four important Teleconferences for November and December 2008, including Lacey Act Changes

Wednesday, Nov 19, 2008, 1:30PM EDT

• Moderator: Harry G. Butler, Editor, Official Export Guide and U.S. Custom House Guide
• Robert DeCamp, Director of Regulatory Affairs and Consulting, Deringer Logistics Consulting Group
• Susan Kohn Ross, International Trade Counsel, Mitchell Silberberg & Knupp LLP

To crack down on illegally harvested plants and plant-derived products, the Federal Government is imposing an extensive new reporting requirement for nearly all such items. The range of goods affected is broad, including paper goods, musical instruments, items with wooden handles, textiles, and more, and the information demanded is significant, including the scientific name of the plant(s) used in manufacturing as well as the country or countries where originally harvested. Even paper and paperboard products made of recycled plant content are subject to the new reporting requirement. In early October, the Animal and Plant Health Inspection Service issued a proposed schedule for implementation of the new reporting requirements. Comments are due by December 8 on the feasibility and details of the proposed implementation schedule, which requests voluntary filing via a paper form beginning Dec. 15 and staged mandatory filing commencing in April 2009.

Who Should Listen: • Importers • Customs Brokers • Foreign Suppliers • Manufacturers

Live participation is $99 and allows access to one phone line for an unlimited number of listeners. A live question and answer session will follow the presentations.

More events, and additional details, at the Journal of Commerce website.

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.