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APHIS Revises Enforcement Schedule for Lacey Act Import Declaration Requirement

Beveridge & Diamond, P.C., September 21, 2009

Update, September 2, 2009:  The USDA’s Animal and Plant Health Inspection Service (APHIS) gave notice of its intent to delay enforcement of the Lacey Act declaration requirement applicable to the import of specified wood products.  Certain products that were scheduled to require an import declaration beginning October 1, 2009 or April 1, 2010 are now not expected to require a declaration until September 1, 2010 or later.  Click here for a link to the September 2, 2009 Federal Register notice which contains the revised enforcement schedule.

Note that the substantive provisions of the Lacey Act amendments, which prohibit commerce in illegally sourced wood and wood products, remain in effect and are enforceable now.

See below for a full report on the Lacey Act Amendments.

The U.S. Lacey Act Amendments of 2008

The Lacey Act is a U.S. wildlife protection statute that was designed to combat illegal trafficking in wildlife, fish and certain plants.  Recent amendments to the Lacey Act, aimed primarily at preventing illegal logging, expand the law’s protections to include any wild member of the plant kingdom (including trees from natural or planted forest stands), and any products made thereof.  The Lacey Act amendments will require increased due diligence by businesses that buy and sell wood or wood products.

1.   Commerce in Illegally Sourced Plants and Plant Products Prohibited

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 taken, possessed, transported or sold in violation of the laws of the U.S., a U.S. state or tribal land or any foreign country.  (16 U.S.C. §3372(a).)  The Act includes criminal and civil penalties for any person who knew, or in the exercise of due care should have known, that they engaged in a commercial transaction involving illegally sourced plant products.

The definition of “plants” includes any wild member of the plant kingdom, including roots, seeds, trees from either natural or planted forest stands, and any products thereof; but does not include:  (i) common cultivars (except trees); (ii) common food crops; (iii) scientific specimens of plant genetic material for research; or (iv) any plant that is to remain planted or to be replanted.[1]  (16 U.S.C. § 3371(f).)

Illegally sourced plants may include trees or wild plants that were: (i) stolen; (ii) taken from officially protected areas such as parks and reserves; (iii) taken without or contrary to required authorization; (iv) taken without payment of the applicable taxes, royalties or fees; or (v) shipped in violation of governing export or transshipment laws, such as log export bans.  (16 U.S.C. § 3372(a).)

It is also unlawful under the Lacey Act to falsely identify or label any plant or plant product covered by the Act.  (16 U.S.C. § 3372(d).)

2.   New Declaration Requirement for Imported Plants and Plant Products

The Lacey Act amendments also require importers of certain plant products to file an import declaration.  (16 U.S.C. § 3372(f).)  Enforcement of the import declaration requirement began for certain specified wood products on April 1, 2009, and is being phased in for additional products identified by Harmonized Tariff Schedule (HTS) codes as outlined in the revised schedule available here.  Note that the enforcement schedule only applies with regard to the import declaration requirement.  There is no delay with regard to enforcement of the substantive requirements of the Lacey Act amendments.[2]

The import declaration must include the following information for each article or component of an article: (i) plant genus; (ii) species; (iii) country of harvest; (iv) quantity of plant material and unit of measure; and [if the product is paper or paperboard], (v) percent recycled material.

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.

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.[3]

Link to Plant and Plant Product Declaration Form, http://www.aphis.usda.gov/plant_health/lacey_act/downloads/
declarationform.pdf

3.   Agencies Responsible for Implementation of the Lacey Act Amendments

APHIS is working with representatives from Customs and Border Protection, the U.S. Department of Justice, U.S. Forest Service, U.S. Trade Representative, U.S. Department of State, U.S. Fish and Wildlife Service, Council on Environmental Quality, and Department of Commerce to implement the new provisions.  Link to APHIS website, http://www.aphis.usda.gov/plant_health/lacey_act/

4.   Opportunities to Comment

APHIS is accepting public comments on the revised plan to phase in enforcement of the import declaration requirements until November 2, 2009.

To view the 2008 amendments to the Lacey Act click here.

If you have questions regarding how the Lacey Act amendments apply to your business, please contact Laura Duncan at (415) 262-4003 (lduncan@bdlaw.com) or Paul Hagen (202) 789-6022 (phagen@bdlaw.com).



[1]  “Common cultivars” and “common food crops” are to be defined via a joint rulemaking by the U.S. Departments of Agriculture and Interior.

[2]  Under the substantive provisions of the Lacey Act amendments, persons who engage in commercial transactions involving products made of wood or wild plants are required to exercise due care to ensure that the plant materials in these products were legally sourced.  The substantive prohibition on commerce in illegally sourced plants and plant products is not limited to the products identified by Harmonized Tariff Schedule (HTS) codes in the import declaration enforcement schedule.

[3]  In addition to traditional boxes and packaging materials, APHIS has interpreted “packaging material” to include items such as manuals, tags, labels and warranty cards that are shipped with a product.

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