Lacey Act Update: APHIS to Expand Enforcement of Lacey Act Declaration Requirements Beginning April 1, 2010
Beginning on April 1, 2010, the U.S. Department of Agriculture’s Animal and Plant Health Inspection Service (APHIS) will begin enforcing Lacey Act importer plant product declaration requirements for additional products included in eight chapters of the Harmonized Tariff Schedule of the United States (HTSUS). The detailed reporting requirements for these additional categories of imported product made from or containing plant products are part of the revised Lacey Act enforcement schedule announced by APHIS in its September 2, 2009, Federal Register notice. The declaration requirements of the Lacey Act became effective on December 15, 2008, and enforcement of those requirements is being phased in.
The Lacey Act makes it unlawful to import certain plants and plant products without an import declaration. The declaration must contain, among other things, the scientific name of the plant, value of the importation, quantity of the plant and name of the country where the plant was harvested. The declaration may be submitted as a paper form available on the APHIS Web site or as an electronic submission through the U.S. Customs and Border Protection (CBP) Automated Commercial System (ACS).
Products Covered by Phase IV Enforcement Implementation
Beginning April 1, 2010, APHIS will begin enforcing importer plant product declaration requirements for products included in the following HTSUS Chapters—
(4421- Other articles of wood, which includes, among others, wood blinds, shutters, screens and shades; wood dowel pins; toothpicks, tongue depressors, candy sticks, ice cream sticks, drink mixers; and pickets, paling, posts and rails)
(6602- Walking sticks, whips, crops)
(8201- Hand tools)
(9201- Pianos, 9202- Other stringed instruments)
(9302- Revolvers and pistols, 93051020- Parts and accessories for revolvers and pistols)
(940169- Seats with wood frames)
(950420- Articles and accessories for billiards)
APHIS continues to consider enforcement implementation regarding declaration requirements pertaining to products included in subchapters of HTSUS Chapter 44 (wood and articles of wood), Chapter 47 (wood pulp), Chapter 92 (musical instruments), Chapter 48 (paper and articles of paper), Chapter 66 (umbrellas, walking sticks and riding crops), Chapter 94 (furniture) and Chapter 95 (toys, games and sporting equipment) that was originally scheduled to begin on April 1, 2010. Declaration for these products will not be required until after September 1, 2010. Additionally, APHIS indicates that it will provide at least six months’ notice of any additions or alterations to the published phase-in schedule.
It is important to note that the declaration requirements continue to be enforced for those products identified in enforcement Phases II and III.
Criminal and Civil Penalties for Violations of the Lacey Act
Regardless of the phase-in of declaration requirements, the Lacey Act amendments became effective May 22, 2008. Importers and manufacturers who fail to exercise due care, thereby importing, exporting, transporting, selling, receiving, acquiring or purchasing illegally sourced wood and other plant products can now be prosecuted regardless of knowledge or intent. The Act also penalizes failing to follow declaration requirements once enforced, making false statements and mislabeling products.
By way of example, on November 17, 2009, agents of U.S. Fish and Wildlife Service (FWS) and local police raided Gibson Guitars of Nashville, Tennessee, in the first major enforcement of the 2008 Lacey Act amendments. It has been widely reported that agents seized wood, guitars, computers and boxes of files from Gibson headquarters based on a sealed affidavit alleging illegal import of rosewood from Madagascar. While the facts and legal implications of the Gibson case are not yet public, the raid underscores the importance of careful compliance with the new Lacey Act requirements.
Enforcement of the Lacey Act’s criminal and civil penalties is being handled jointly by the Department of Justice, CBP, APHIS and FWS. Knowing violations of the Act may result in a felony conviction with up to five years in prison, extensive fines (e.g., criminal penalties of up to $20,000 per violation) and forfeiture. Felony charges may be extended for knowing violation of the declaration requirements. Criminal misdemeanor may be charged where an importer “in the exercise of due care” should have known products in its possession were illegally sourced. The Lacey Act clearly mandates that manufacturers and other importers exercise “due care” in sourcing plant materials and reporting plant material content in imports to the United States.
For additional information, please visit the APHIS Web site, http://www.aphis.usda.gov/, which specifies the declaration implementation schedule and which will be updated as new information regarding the Lacey Act becomes available.
 See 74 Fed. Reg. 45415 (Sept. 2, 2009)
|Lars-Erik A. Hjelm
|Erik D. Johansen
|Sally S. Laing