The New Import Declaration Requirement For Plants And Plant Products Under The Lacey Act

Beginning May 1, 2009, some U.S. importers must submit an "import declaration" to Customs and Border Protection (CBP) for certain plants and plant based products at the time of importation. The declaration requirement arises from the 2008 Farm Bill that significantly amended the Lacey Act.[1] While the definition of "plant" based components under the Lacey Act is broad, the U.S. Department of Agriculture's Animal and Plant Health Inspection Service (APHIS), the lead agency tasked with implementing the new requirement, announced its intention to enforce the declaration requirement under a phase-in schedule.[2] Specifically, APHIS will implement the reporting requirement based on Harmonized Tariff Schedule (HTS) chapters beginning May 1, 2009.[3] Importers of plants and plant based products should therefore review the Lacey Act amendments and HTS carefully to determine whether filing a declaration will be mandatory in May, or upon any of the later enforcement dates.

Revised Definition of the Term Plant or Plant Product

Under the new provisions of the Lacey Act, a "plant" is broadly defined to mean "any wild member of the plant kingdom, including roots, seeds, parts, or product thereof, and including trees from either natural or planted forest stands."[4] However, there are three categorical exclusions:

• Common cultivars, except trees, and common food crops;
• Scientific specimens of plant genetic material to be used only for laboratory or field research, unless they are listed under the Convention on International Trade in Endangered Species of Wild Fauna and Flora (CITES), the Endangered Species Act (ESA), or a state endangered species list; and
• Live trees or other live plants that are to remain planted or to be planted or replanted, unless they are listed under CITES, ESA, or a state endangered species list.

Because of the inclusion of "product[s] thereof" in the revised definition of plant, the definition encompasses not only certain live plants, but also any products that contain plant material such as lumber, wood pulp, paper and paperboard, and furniture, to name a few.

Plant Product Import Declaration

If an imported product is a "plant" or contains plant based components, the law now requires that a plant product declaration (form PPQ 505) be filed with CBP at the time of importation. The declaration generally must include: (1) the scientific name of any plant contained in the imported product; (2) the value and quantity, including the unit measure, of the plant; and (3) the plant's country of harvest. Plant-based packaging material, defined as anything used to package an item being imported, is exempt from filing an import declaration. Failure to file a required declaration, or providing false or misleading information in a declaration, may result in both civil and criminal penalties.

Phased-In Enforcement

As noted above, however, enforcement of the import declaration requirement will be phased in for plant and plant based products listed under specified chapters of the HTS. Under the currently proposed schedule, beginning May 1, 2009, importers must file a declaration for imported products listed under the following subsections of HTS Chapter 44 ("Wood and articles of wood"):

• 4401: Fuel wood;
• 4403: Wood in the rough;
• 4404: Hoopwood, poles, posts, stakes;
• 4406: Railway and tramway sleepers;
• 4407: Wood sawn or chipped lengthwise;
• 4408: Sheets for veneering;
• 4409: Wood continuously shaped;
• 4417: Tools, tool handles, broom handles; and
• 4418: Builders' joinery.

APHIS has further announced its intention to begin enforcement relating to additional HTS categories some time between October 1, 2009 and March 31, 2010, and even more categories some time between April 1, 2010 and September 30, 2010.[5]

While the primary purpose of the declaration is data acquisition and accountability to combat illegal logging and harvesting of trees and plants, the declaration will force importers to exercise greater due diligence regarding the plant and tree sources used in their products. Importers should be prepared to work closely with their plant and plant product suppliers in order to obtain the information necessary for declaration. Importers of plant based products not listed under the specified chapters of the HTS scheduled for enforcement may also need to assure their customers that they are currently not required to file an import declaration form.

[1] See H.R.2419, Sec. 8204.

[2] See 75 Fed. Reg. 5911 (February 3, 2009).

[3] See http://www.aphis.usda.gov/plant_health/lacey_act/downloads/lacey_trade6.1.pdf.

[4] 16 U.S.C. § 3371(f)(1)

[5] See 75 Fed. Reg. 5911 (February 3, 2009).