Importers of Plant and Plant Products (Including Paper, Paper Products, Furniture) Must Declare Plant Species and Country of Origin

By Robert A. Shapiro partner at Thompson Coburn LLP
Orisia Gammell associate at Thompson Coburn LLP

FOR IMMEDIATE RELEASE

For media inquiries please call Marc Witengier 314.552.6564

The 2008 Farm Bill amended the Lacey Act to require importers to declare the origin and species of certain imported plants and “plant products”. The statute provides that this reporting requirement is to become effective on December 15, 2008.

On October 8th, 2008, Animal and Plant Health Inspection Service (“APHIS”) published Notice And Request For Comments (“Notice”) regarding its implementation of this provision. In the notice, APHIS proposes the implementation of a voluntary paper form declaration until Customs and Border Protection (“CBP”) develops an automated system for the collection of the necessary information. It is anticipated that CBP will develop the necessary automated interface by April 1, 2009. Thereafter, APHIS will implement a phased implementation of the Lacey Act’s enforcement provisions, depending on the nature of the imported product.

Plant Products

While the Farm Bill does not define “plant products”, the Lacey Act excludes from the reporting requirement “plants used exclusively as packaging material to support, protect, or carry another item, unless the packaging material itself is the item being imported.” In the Notice, APHIS explains that because of the narrow scope of this exclusionary language, the term “plant products”

This is, indeed, a broad interpretation of this term, and would arguably include a large portion of the tariff. While the purpose of this Notice is not to discuss the definition of plant products, one would expect the comments and the public meeting to focus on this issue.

Import Declaration

The extensive scope of the Lacey Act amendment as expressed by APHIS is offset, somewhat, by the adoption of a more reasonable implementation schedule.

The Farm Bill requires importers to declare (1) the scientific name of the plant; (2) the value of the import; (3) the quantity of the plant; and (4) the country from which the plant was harvested for certain plant and plant products imported into the United States. If the plant species from which a plant product is made varies and is unknown, the importer is required to declare the name of each species of plant that may have been used to produce the plant product. Similarly, if the plant product is made from a plant species which is commonly taken from more than one country, the importer will have to declare the name of each country from which the plant may have been taken.

If a paper or paperboard plant product includes recycled plant content, the importer will only be required to specify the average percent of recycled content in the product, and not be required to specify the species or country of origin for the recycled content. However, if the product also contains non-recycled plant materials, the declaration requirements apply to the non-recycled plant content.

APHIS recognizes that it will be difficult to efficiently implement these reporting requirements in a manual environment. CBP already collects some Lacey Act information and is currently developing an electronic system that will be able to collect the data required to be declared. CBP anticipates the electronic system to be completed by April 1, 2009. In the meantime, the following declaration schedule will be implemented:

• December 15, 2008 until April 1, 2009 - A paper declaration form will be available. Submission of the paper declaration will be voluntary, and importers will not be prosecuted or penalized for failing to complete the paper declaration form. However, importers submitting forms containing false information may be prosecuted.
• April 1, 2009 (or as soon thereafter as the electronic system is available) - CBP will begin enforcement reporting requirements for products classified under the following Harmonized Tariff Schedule (“HTS”) chapters:
  • HTS chapter 44: wood and wood products
  • HTS chapter 6: certain live plants
• July 1, 2009 - CBP will extend its enforcement to products classified under the following HTS chapters:
  • HTS chapter 47: wood pulp
  • HTS chapter 48: paper articles
  • HTS chapter 92: musical instruments
  • HTS chapter 94: furniture
• September 30, 2009 - CBP will phase in enforcement of the declaration requirements for additional chapters containing plants and plant products covered by the Lacey Act, including, but not limited to, the following:
  • HTS chapter 12: oil seeds, misc. grain seed, fruit, etc.
  • HTS chapter 13: gums, lacs, resins, vegetable saps, extracts, etc.
  • HTS chapter 14: vegetable plaiting materials and products not elsewhere specified
  • HTS chapter 45: cork and articles of
  • HTS chapter 46: basket ware and wickerwork
  • HTS chapter 66: umbrellas, walking sticks, riding crops
  • HTS chapter 82: tools
  • HTS chapter 93: guns
  • HTS chapter 95: toys, games, and sporting equipment
  • HTS chapter 96: brooms, pencils, and buttons
  • HTS chapter 97: works of art

A specific phase in schedule for these additional chapters will be published in a subsequent Federal Register notice.

Public Meeting

APHIS will be hosting a public meeting on implementation of the Revised Lacey Act provisions on Tuesday, October 14, 2008, from 10 a.m. until 12 p.m. The meeting will be held in the Jefferson Auditorium, South Agriculture Building, U.S. Department of Agriculture, 1400 Independence Avenue, SW, Washington DC. The purpose of the meeting is to provide information on the declaration requirements, the declaration enforcement phase-in plan, the scope of the new requirements, and the enforcement of provisions already in effect, as well as to provide the public with an opportunity to ask questions. APHIS will consider comments filed with the agency until December 8, 2008.