APHIS Details Plan for Lacey Act Declaration Enforcement

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October 8, 2008

In the October 8, 2008 edition of the Federal Register, the Animal and Plant Health Inspection Service (APHIS) will publish a notice detailing the Federal Government’s plan to implement and enforce the new Lacey Act provisions contained in the 2008 Farm Bill.

As previously reported, effective May 22, 2008, the Lacey Act as amended makes it unlawful to import, export, transport, sell, receive, acquire, or purchase in interstate or foreign commerce any plant, with limited exceptions, taken, possessed, transported or sold in violation of the laws of United States or any foreign law that protects plants.

In addition, section 3 of the Lacey Act, as amended (16 U.S.C. 3372), makes it unlawful beginning December 15, 2008, to import certain plants and plant products without an import declaration containing the scientific name of the plant, value of the importation, quantity of the plant, and the name of the country from which the plant was harvested.

APHIS is the lead organization in the interagency working group composed of representatives from U.S. Fish and Wildlife Service, Customs and Border Protection (CBP), Department of Commerce, and other relevant agencies, charged with implementing the new provisions.

CBP, which already collects some Lacey Act information, is currently developing an electronic system to collect the remaining data by the Farm Bill. APHIS intends to begin enforcement of the declaration requirements upon completion of the electronic system, which CBP expects to occur by April 1, 2009. Prior to the availability of electronic filing, from December 15, 2008, until completion of the electronic filing system, APHIS will make a paper declaration form available for voluntary submission.

Once the electronic system is completed, APHIS is proposing a phase-in based on chapters of the Harmonized Tariff Schedule (HTS) for determining which products will require declarations. The proposed schedule of the phase-in is as follows:

• Phase I: Present-March 2009,   voluntary plant import declaration form available on APHIS website and accepted after December 18, 2008; domestic and international outreach.
• Phase II: Beginning April 1, 2009, or as soon as an electronic system is available, importers of products in HTS Ch. 44 (wood & articles thereof) and Ch. 46 (live trees, plants, bulbs, ornamental foliage, etc.), will be required to file declarations. 
• Phase III: Beginning July 1, 2009, importers of products in HTS Ch. 47 (wood pulp), Ch. 48 (paper & articles thereof), Ch. 92 (musical instruments), and Ch. 94 (furniture), will be required to file declarations.
• Phase IV: After September 30, 2009, APHIS will begin enforcement of declaration of additional chapters containing plants and plant products covered by the Lacey Act, including Ch. 12 (oil seeds, misc. grain, seed, fruit, plant, etc.), Ch. 13 (gums, lacs, resins, vegetable saps, extracts, etc.), Ch. 14 (vegetable plaiting materials and products not elsewhere specified), Ch. 45 (cork and articles thereof), Ch. 46 (basket ware and wickerwork), Ch. 66 (umbrellas, walking sticks, riding crops), Ch. 82 (tools), Ch. 93 (guns), Ch. 95 (toys, games, and sporting equipment), Ch. 96 (brooms, pencils, and buttons), Ch. 97 (works of art), and more. 

No agency with Lacey Act enforcement authority will bring prosecutions or forfeiture actions for failing to complete the paper declaration form before the electronic system is available. However, any person who submits a form containing false information may be prosecuted.

After the electronic declaration system becomes available, APHIS reminds importers that violations of the Lacey Act provisions may be prosecuted in three basic ways: 1) civil monetary penalties; 2) criminal-fines and penalties and potential incarceration; or 3) forfeiture-dispossession of the plant, fish, or wildlife in question.