Commercial Information Circulars

24-hour hotline : 23 922 922

e-mail address : enquiry@tid.gov.hk

Ref : EIC 111/2

13 October 2008

Dear Sirs,

Commercial Information Circular No. 506/2008

US : Implementation of Revised Lacey Act Provisions

The US Department of Agriculture (USDA) announced in the Federal Register (FR) notice of 8 October 2008 about the implementation of revised Lacey Act provisions. The purpose of the notice is to inform the public about the new Lacey Act provisions, particularly the declaration requirements and the government's plan to implement and enforce the declaration requirements. Interested parties may submit comments on the requirements to USDA by 8 December 2008. A copy (pdf format) of the FR notice is appended to this circular for reference.

DETAILS

2. The trade was informed via Commercial Information Circular No. 326/2008 dated 12 June 2008 that the Food, Conservation, and Energy Act of 2008, effective 22 May 2008, amended the Lacey Act by expanding its protection to a broader range of plants and plant products (Section 8204. Prevention of Illegal Logging Practices) and beginning 15 December 2008, importers are required to submit a declaration for certain plants and plant products.

Scope of plants and plant products covered

3. Under the Lacey Act, as amended, ''Plant'' means: ''Any wild member of the plant kingdom, including roots, seeds, parts or product thereof, and including trees from either natural or planted forest stands.'' There are three categorical exemptions: (a) common cultivars, except trees, and common food crops (including roots, seeds, parts, or products thereof); (b) scientific specimens of plant genetic material (including roots, seeds, germplasm, parts, or products thereof) that are to be used only for laboratory or field research; and (c) plants that are to remain planted or to be planted or replanted. The amendments, including the declaration requirements, still apply for items described under (b) and (c) if the plant is listed: (i) in an appendix to the Convention on International Trade in Endangered Species of Wild Fauna and Flora; (ii) as an endangered or threatened species under the Endangered Species Act of 1973; or (iii) pursuant to any State law that provides for the conservation of species that are indigenous to the State and are threatened with extinction.

4. All covered plants and plant products will require an import declaration, except for those used exclusively as packaging material to support, protect, or carry another item, unless the packaging material itself is the item being imported. Thus, the scope of products that will require a declaration under the Lacey Act is broad and includes certain live plants, plant parts, lumber, wood pulp, paper and paperboard, and products containing certain plant material or products, which may include certain furniture, tools, umbrellas, sporting goods, printed matter, musical instruments, products manufactured from plant-based resins, and textiles. USDA and the US Department of the Interior have been given authority under the Lacey Act to define the terms ''common cultivar'' and ''common food crop.'' The US Animal and Plant Health Inspection Service (APHIS) of USDA and the US Fish and Wildlife Service are currently working on a joint rulemaking that will define those terms, thus clarifying the application of the declaration requirements.

Implementation plan for declaration requirements

5. The US Customs and Border Protection (CBP) is currently developing an electronic system that will collect the data required to be declared, and USDA intends to begin enforcement of the declaration requirements upon completion of the electronic system. CBP anticipates completing the electronic system by 1 April 2009. USDA will publish a notice in the FR announcing the specific dates in which enforcement of the declaration requirements will begin once the electronic system is near completion.

6. Once the electronic system is completed, all agencies with Lacey Act enforcement authority will employ a phase-in approach to enforcement of the Lacey Act declaration requirements. Prior to the availability of electronic filing, from 15 December 2008, to 1 April 2009, or as soon thereafter as the electronic system is available, APHIS will make a paper declaration form available for voluntary submission. No agencies with Lacey Act enforcement authority will bring prosecutions or forfeiture actions for failing to complete the paper declaration form before the electronic system for data collection is available (1 April 2009, or after); however, any person who submits a form containing false information may be prosecuted.

7. On 1 April 2009, or as soon thereafter as the electronic system for collecting the declaration is available, USDA will begin enforcement of the declaration for wood and certain wood products and certain live plants and related products. The proposed phase-in enforcement schedule of the declaration requirements for goods of, or containing, plants or plant products is described in the table below:

8. After 30 September 2009, based on experience with the implementation of the electronic system for declaration data collection, USDA 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) Chapter 12 (oil seeds, misc. grain, seed, fruit, plant, etc.), Chapter 13 (gums, lacs, resins, vegetable saps, extracts, etc.), Chapter 14 (vegetable plaiting materials and products not elsewhere specified or included), Chapter 45 (cork and articles of), Chapter 46 (basket ware and wickerwork), Chapter 66 (umbrellas, walking sticks, riding crops), Chapter 82 (tools), Chapter 93 (guns), Chapter 95 (toys, games and sporting equipment), Chapter 96 (brooms, pencils, and buttons), and Chapter 97 (works of art). USDA will announce a specific phase-in schedule for those Chapters in a subsequent FR notice.

Public meeting

9. USDA will host a public meeting on implementation of the amendments to the Lacey Act on 14 October 2008 (10 am - 12 pm). The meeting will be held in Washington, DC. The purpose of the meeting is to provide the public with information on the declaration requirements and declaration enforcement phase-in plan, enforcement of provisions that are already in effect, scope, and other related issues, as well as to provide the public with an opportunity to ask questions of the agencies involved in the implementation of the declaration requirements and enforcement of the Lacey Act. Additional meetings are likely to be held this winter near key port locations in the US. USDA will announce the locations and dates of those meetings in the FR.

Additional information

10. APHIS will provide the latest information regarding the Lacey Act on the following website: http://www.aphis.usda.gov. The website currently contains the amended Lacey Act; a PowerPoint presentation covering background and context, new requirements, commodities and products covered, information on prohibitions, and the current status of implementation of the declaration requirements of the Lacey Act; frequently asked questions; and the phase-in implementation plan.

ENQUIRIES

11. For enquiries concerning the content of this circular, please contact the undersigned at 2398 5682.

Yours faithfully,

(Miss Bonny CHAO)
for Director-General of Trade and Industry