Update on the New Declaration Requirement for Imported Goods of Wood or Plants(revision to the Lacey ACT)to be Delayed

Under provisions in the 2008 Farm Bill that amended the Lacey Act, the new law would require an import declaration for all wood or plant products stating the scientific name and source of the timber or plant that was used in the imported product. And, if not sure of the wood/plant genus and species and country of origin, the law would require the importer to list the names of each species of plant/wood that might have been used to produce the product or the name of each country from which the plant/wood might have been taken.  At a Sept. 17 meeting with industry and environmental groups, Congress agreed to a delay in the implementing of the declaration requirement from December 15, 2008 until April 1, 2009.  And neither U.S. Customs and Border Protection nor the Department of Justice would enforce the requirement until April 1, 2009.

It was further learned an agreement that implementation of the declaration requirement would be phased in, but it remains in draft form. The concept is that CBP will begin requiring declarations for core timber products first, then over time work its way out to other plant and wood products. There is still discussion about whether the phases will go HTSUS chapter by chapter or line by line.

Two important issues were not discussed at the meeting and remain to be addressed. These are:

• The filing requirement – would it be done post entry or at the time of entry. Would a database be established that would allow declarations to be submitted electronically instead of on paper. There was some discussion on whether declarations will be required even if the database is not ready by April 1 but no firm answer was given, indicating that paper declarations could be required once CBP begins phasing in enforcement on that date.
• The valuation of plant products as a component of another product (i.e., if importers are required to estimate the value of the plant component of the product or can simply note the value of the whole product). The latter element is particularly important for downstream composite products where the plant derivative accounts for only a small portion of the total value.
  We further understand federal agencies are looking for guidance from

On a number of other key issues, Congress was concerned on the scope of the declaration requirement:

• What products are covered?
• Whether or not agencies have authority to set de minimis standards under which products with only trace amounts of covered plants or plant products would be excluded from the declaration requirement.
• Agency authority to define “packaging materials,” which are excepted from the declaration requirement.
• Declarations associated with informal entry.

The Lacey Act Amendments have generated such concern among importers that Congressional sponsors of the legislation and committee staff are now working to address the serious implementation issues.  In fact, several House and Senate committees and offices recently formed a working group with interested stakeholders, including importers, brokers and environmentalists. National Customs Broker & Forwarders Association of America (NCBFAA) was chosen as one of four private sector groups to lead the negotiations to find workable solutions.  As a member of NCBFAA, John S. Connor, Inc. will continue to monitor the results of these negotiations and updated our customers accordingly.