Background

The Lacey Act is a wildlife protection statute that combats trafficking in illegal wildlife, fish, and plants. Section 8204 of the 2008 Food, Conservation, and Energy Act of 2008 (the Farm Bill) amends the Lacey Act to expand its protection to a broader range of plant and plant products. In particular, 16 U.S.C. 3372(f) prohibits the importation of plants and plant products without an import declaration. The US Department of Agriculture, Animal and Plant Health Inspection Service (APHIS), is the lead agency – with the Office of the US Trade Representative, US Fish & Wildlife Service, US Customs and Border Protection, and US Department of Justice part of an interagency group implementing the amendment.

The import declaration form will be available December 15, 2008, which starts a phased program of implementation ending March 2009. The second phase starts on April 1, 2009 and covers Harmonized Tariff Schedule chapters 6 (live trees, plants, ornamental foliage, etc.), and 44 (wood and articles of wood). The third phase begins July 1, 2009, and covers Harmonized Tariff Schedule chapters 47 (wood pulp), 48 (paper & articles of), 92 (musical instruments), and 94 (furniture). AHPIS will consider all comments received on or before December 8, 2008.

Import Declaration Requirements

The declaration must be made at the time of importation. The draft declaration form includes the scientific name of the plant, value of the importation, quantity of the plant, and name of the country from which the plant was harvested. Electronic filing is planned.

“Plant” includes any wild member of the plant kingdom, or any tree. For plant products, if the plant species is unknown, importers will have to declare the name of each species that may have been used to produce the product. Also, if a plant product is made of plant species commonly harvested in more than one country, and the country is unknown, the importer will be required to declare the name of each country where the plant may have been harvested.

A.        Scope of Import Declaration Requirements

The import declaration requirement likely imposes unreasonable burdens on importers. The amendment may cover musical instruments, tools, umbrellas, sporting goods, printed matter, products manufactured from plant-based resins, pharmaceuticals, and textiles. The label on a wine bottle, tags on clothes, or manuals accompanying electronic devices may have to be declared. Personal shipments may have to be declared. When the third phase ends, importers may have to declare HTS chapters covering grains, fruit, cork, basket wares, guns, toys, games, brooms, pencils and buttons as part of a new phase.

B.        Penalties for Non-compliance

Penalties for noncompliance include monetary penalties, incarceration, or forfeiture of the plant, fish, or wildlife at issue.

C.        Exemptions

The amendment, however, exempts packaging material unless the material itself is being imported. “Common Cultivars” and “Common Food Crops” are excluded, but the agencies have not yet defined “Common Cultivars” and “Common Food Crops.” For example, APHIS has indicated that it will likely define a common food crop as “something that can be consumed by a human.” Cotton may be regulated as a cultivar subject to exemption, but APHIS has not made a final decision. According to APHIS, carriers like FedEx or DHL likely will not be held responsible for the declaration requirement. There is no de minimis exemption for small amounts of plant content.

Congressional Response

APHIS held a public meeting on October 14, 2008, where a letter from Congress supporting the goal of combating illegal logging but urging caution in implementing the amendment was circulated. Senate Agriculture Committee Chairman Tom Harkin (D-Iowa), Senate Finance Committee Chairman Max Baucus (D-Mont.), House Ways and Means Committee Chairman Charles Rangel (D-N.Y.) and House Natural Resources Committee Chairman Nick Rahall (D-W.Va.) signed the letter – as well as Rep. Earl Blumenauer (D-Ore.) and Sen. Ron Wyden (D-Ore.).

The letter calls for an interpretation of packaging materials that includes “inter alia, tags, labels, manuals, warranty cards, wrap, boxes, cardboard or paper inserts, bottle corks, and pallets.” The letter proposes an exclusion from the declaration requirement that includes cosmetics and personal care products, rubber or cork products and beverages -- in addition to footwear, textiles and apparel. The letter also seeks to extend the phase-in periods to six months.

Conclusion

Because the Lacey Act amendment requiring an import declaration for plants and plant products is one of the most significant changes in import policy in years, importers should mobilize to shape the implementation. The amendment can serve to combat environmental degradation and illegal logging. Importers from all industries, however, should be concerned by its broad scope and civil and criminal penalties for non-compliance. As noted, implementing agencies have not made a final decision regarding several vital areas. APHIS will consider all comments received on or before December 8, 2008. Arent Fox has substantial capabilities in representing importers before federal agencies and Congress. For more information, please contact our team members.