Beveridge & Diamond
 

Upcoming Deadlines Under Lacey Act Amendments

Beveridge & Diamond, P.C., November 25, 2008

The Lacey Act is the U.S. wildlife protection statute designed to combat illegal trafficking in wildlife, fish and certain plants.  Recent amendments to the Lacey Act, aimed in part at curbing illegal logging, expand its protections to include any wild member of the plant kingdom (including trees from natural or planted forest stands), and any products made thereof.  Thus provisions of this statute now apply to a broad range of plant products such as timber, furniture, wood pulp, paper and paperboard, books, musical instruments, tools, products manufactured from plant-based resins, pharmaceuticals, and plant-based textiles, among others.

As described in more detail below, the deadline for submitting public comments on certain new Lacey Act provisions is December 8, 2008.  Under the statute, new import declaration provisions become effective December 15, 2008; however, prior to the availability of an electronic filing system (anticipated by April 1, 2009) the requirement to file a declaration will not be enforced. 

Ban on Commerce in Illegally Sourced Plants and Plant Products; False Labeling

The amended Lacey Act makes it unlawful, as of May 22, 2008, to import, export, transport, sell, receive, acquire, or purchase in interstate or foreign commerce any plant or plant product that was illegally sourced from a U.S. state or tribal land or any foreign country.  Illegally sourced plants may include trees or wild plants that were:  (1) stolen; (2) taken from officially protected areas such as parks and reserves; (3) taken without or contrary to required authorization; (4) taken without payment of the applicable taxes, royalties or fees; or (5) shipped in violation of governing export or transshipment laws, such as log export bans.  The amendments also make it unlawful, as of May 22, 2008, to falsely identify or label any plant or plant product covered by the Act.

New Declaration Requirement for Imported Plants and Plant Products

Additional provisions will make it unlawful to import covered plants and plant products without filing an import declaration.  The declaration must include:  (1) scientific names of all plant species; (2) country of harvest; (3) quantity (including unit of measure); and (4) value of imported plants or plant products.  A paper import declaration form will be available for voluntary submissions made from December 15, 2008 to April 1, 2009.  On April 1, 2009, or as soon thereafter as the electronic system for collecting the declaration is available, the import declaration requirement will begin to be enforced according to the phase-in schedule proposed below.

If the plant species or country of origin cannot be determined conclusively for a plant product, the declaration must include a list of possible plant species found in the product and/or a list of each country from which the plant may have been harvested.  Declarations for paper and paperboard products made of recycled content do not need to name the species and source of the recycled material.  For these products, an importer is obligated to list the average percent of recycled content as well as species and origin information for any non-recycled plant material contained in the products.  Packaging material used exclusively to support, protect, or carry another item will not require an import declaration, unless the packaging material itself is being imported.

Proposed Phase-In Schedule for Import Declaration Enforcement

The U.S. Department of Agriculture‚Äôs Animal and Plant Health Inspection Service (APHIS) is working with Customs and Border Protection (CBP) and other agencies to implement the amended Act.  Enforcement of the import declaration requirement will not begin until the CBP completes an electronic system to be used to collect the import declaration data (anticipated April 1, 2009).  Once the electronic system is in place, agencies with Lacey Act authority will phase-in enforcement of import declaration requirements as follows:

Beginning on April 1, 2009 (or as soon thereafter as an electronic system is available), enforcement will begin for import declarations on wood and articles of wood, live trees, plants, bulbs, cut flowers, and ornamental foliage (items described in chapters 44 and 6 of the Harmonized Tariff Schedule).

Beginning approximately July 1, 2009, import declaration enforcement is anticipated with regard to wood pulp, paper and paper articles, musical instruments, and furniture (items described in chapters 47, 48, 92 and 94 of the Harmonized Tariff Schedule).

After September 30, 2009, enforcement of the declaration requirements will be phased in for additional Harmonized Tariff Schedule chapters, including chapter 12 (oil seeds, grain, seed, fruit, etc.), chapter 13 (gums, resins, vegetable saps, extracts, etc.), chapter 14 (vegetable plaiting materials and products not otherwise specified or included), chapter 45 (cork and articles of cork), chapter 46 (basket ware and wicker), chapter 66 (umbrellas, walking sticks, riding crops), chapter 82 (tools and cutlery), chapter 93 (guns), chapter 95 (toys, games, sporting equipment), chapter 96 (miscellaneous manufactured articles, such as brooms, pencils, and buttons), and chapter 97 (works of art).  Specific dates for enforcement of the initial and subsequent phases will be announced in the Federal Register.

Exemptions and Exclusions

As referenced above, packaging material used exclusively to support, protect, or carry another item will not require import certification, unless the packaging material itself is being imported.  Other items are excluded from the definition of plants:  (1) live plants or trees intended for replanting, unless listed on the Convention on International Trade in Endangered Species of Wild Fauna and Flora, the Endangered Species Act or a state endangered species list; (2) scientific specimens to be used only for research, unless they are listed as in item 1, above; and (3) common cultivars and food crops (to be defined via a joint rulemaking by USDA and the Department of the Interior).

Opportunities to Comment

APHIS is accepting public comments until December 8, 2008 on the new Lacey Act provisions and implementation of the import declaration requirements.  Additional opportunities for public comment are expected for the information collection requirements of the draft import declaration form, definitions of key terms to be developed via joint rulemaking, and other topics related to implementation and enforcement.

To view the amendments to the Lacey Act click here or go to: http://www.aphis.usda.gov/plant_health/lacey_act/downloads/
background--redlinedLaceyamndmnt--forests--may08.pdf

For additional information or guidance regarding the Lacey Act amendment, please contact Laura Duncan (lduncan@bdlaw.com) or Holly Cannon (dcannon@bdlaw.com).