Congress proposes relaxed phase-in of Lacey Act
• USDA to phase in Lacey Act import declaration enforcement
• Regulators near compromise on Lacey Act enforcement
Chief congressional proponents of the Lacey Act amendments on Tuesday outlined a much more measured phase-in schedule and narrower scope for implementing sweeping new import declaration requirements for wood and wood-based products.
The guidance was included in a letter that endorsed the efforts of four federal agencies trying to minimize the unintended impact of the law passed last May as part of the Farm Bill.
The measure is designed to stem the flow of goods made from illegally harvested wood and document the foreign sources of wood-based products to help with compliance and target conservation efforts at affected areas.
Last week, the U.S. Department of Agriculture published a notice proposing to delay enforcement of the declaration by making it voluntary for companies to file a paper-based form until at least April 1, when an electronic system is expected to be ready to process submissions. After that time, enforcement of products would be phased in.
Under the stepped approach, wood products that are most clearly covered by the law would be required to be listed on the plant product declaration, followed on July 1 by wood pulp, paper products, musical instruments, and furniture. After Sept. 30, a phased in schedule for additional products with smaller amounts of wood components found in other chapters of the harmonized tariff schedule, such as resins and oil seeds, will be announced based on the experience of the first two phases.
But in the letter to Agriculture’s Animal and Plant Health Inspection Service, Customs and Border Protection, the Fish and Wildlife Service and the Justice Department, key lawmakers said the agencies should go further in limiting the products covered by the phase-in schedule and expand the period of each phase to six months to give importers “clear and predictable” guidance to comply with the filing requirement.
The first six-month phase should include items such as logs, timber, sawn wood and solid wood flooring. The second phase could include bent wood furniture, cribs, wooden picture frames, plywood, engineered flooring and wood pulp. Subsequent phases would cover certain paper products, wood blinds, billiard cues and musical instruments.
The members of Congress also said some products — such as beverages, cosmetics, footwear, textiles and apparel, cork and rubber — should be exempted from the import declaration requirement during the first two years that the law is in force.
The letter was signed by Oregon Democrats Sen. Ron Wyden and Rep. Earl Blumenauer, as well as the chairmen of the House Natural Resources, and Ways and Means committees, and the Senate Agriculture and Finance committees.
Importers originally faced a Dec. 15 deadline to begin filing paper declarations specifying the scientific name and species of any wood or plant material contained in a product, and the country of harvest.
The broad nature of the act scared international traders who worried that even products with trace amounts of wood byproduct would be covered, making it difficult to obtain the information from their overseas suppliers. They also feared the use of paper documents would create bureaucratic problems and slow down the cross-border movement of goods now processed by electronic means.
The lawmakers urged the agencies to explicitly state their intent to adopt the phase-in schedule.
“Importers need the assurance that they will not be subject to civil enforcement or prosecution for complying with the phased-in electronic declaration process prior to the date that U.S. Customs and Border Protection implements the declaration requirement for a particular product. Written notification from the relevant enforcement agencies is essential to provide such assurance,” they wrote.
The letter reiterated that the law gives the Agriculture Department flexibility to implement the law in a way that limits the burden on importers and exporters. It supported the enforcement delay until an electronic filing system is available.
“A critical reason for including the declaration requirement in the law is to provide relevant government agencies ' environmental and other interest groups, with usable data for the purposes of identifying products of potentially illegally harvested plants. We believe an electronic information collection system is essential to achieving this goal.
“We further recognize that paperless entry processing is critical to the smooth operation of supply chains, ensuring the timely and cost-efficient delivery of merchandise,” the lawmakers said.
“This would greatly reduce the burden on implementing agencies and maximize the accuracy and value of the declarations submitted by importers. Phased-in enforcement would also provide the importer community with time to set up the business processes necessary to obtain the required declaration information.”
The members of Congress also made clear that the Lacey Act amendments should not cover tags, labels, manuals, warranty cards, boxes, pallets and other packaging material that accompany a shipment. Enforcement is limited to items on formal consumption entries and does not include personal items, mail, transportation and exportation entries, temporary importations and most foreign trade zone entries, they said.
The letter also called on the executive branch to establish a Web-based database containing:
' The genus, species and common trade names for plants.
' A continuously updated compilation of foreign laws related to harvesting, transporting and selling plants.
' A reference of available tools for tracking wood and assessing and addressing risk of illegal sourcing within a wood supply chain.
The intent of the Web site is to help companies comply with the law but would not replace their need to exercise proper care to avoid violating the law.
Forty-eight trade associations and environmental groups issued a statement strongly supporting the implementation principles spelled out by the lawmakers.
A representative for an environmental group said at a public meeting hosted by USDA that he was “encouraged by the common ground” between the environmental community and industry to implement the wood protection law in a meaningful way.
Cathy Sauceda, director of import safety and interagency requirements at CBP, said during the information session that the tentative April 1 enforcement deadline proposed by the agencies could be pushed back depending on the status of the electronic system being developed.
USDA will publish a final rulemaking before April 1 once the implementation strategy has been finalized in consultation with Congress and an interagency working group. ' Eric Kulisch