Issue 4: January 31, 2012
The Declaration Requirement: An experiment that failed
One of the most expensive and ineffective provisions of the 2008 Lacey amendment was the mandate that all products containing plant or plant material imported into the U.S. had to be accompanied by an import declaration form. This form had to include the scientific name of the plant, the value of the importation, the quantity of the plant, and the name of the country from which the plant was taken—a bureaucratic burden had never before been required since Lacey’s original enactment in 1900.
The declaration is such a heavy-handed regulatory overreach that even the Animal and Plant Health Inspection Services (APHIS)—the federal agency responsible for its implementation—described it as “burdensome,” “prohibitively expensive,” and “difficult if not impossible” to comply with.
Since its implementation in 2008, the declaration requirement has not been associated with a single conviction under the Lacey Act, nor have any of the current Lacey investigations originated from the declaration form.
Beyond lacking any real enforcement benefit, the process is burying the federal government—and honest business owners—under tons of paperwork, both figuratively and literally. According to APHIS’ own calculations, the agency is receiving approximately 9,200 declarations per week with annual burden to government and industry of up to $56 million.
Not only has this crush of paperwork forced APHIS to stop incorporating new HTS codes as required by statute, but there is no ability to examine these import declarations, which have been stockpiled in warehouses.
Quite simply, the declaration requirement is a four-year-old experiment that didn’t work. It has imposed unnecessary costs on businesses and the federal government without enhancing enforcement or the environmental goals of the law. APHIS is proposing regulations to mitigate the unnecessary burdens of this bureaucratic nightmare. But the simplest and most effective solution is to kill the declaration requirement entirely.
The absence of an import declaration in the statute prior to 2008 did not adversely impact the effectiveness of enforcement under the 108 year-old Lacey Act. We are confident that eliminating the failed declaration requirement will have no effect on Lacey over the next 108 years and beyond.
“They said it.”
“The declaration requirement is only a small part of the entire Lacey Act. Even if a shipment is exempt from the declaration requirement –the Lacey Act is still in force. Example: Bagpipes with wooden pipes … no declaration required. The Lacey Act itself still applies to the wooden pipes if the pipes were made from illegally harvested trees then the bagpipe shipment is in violation of the Lacey Act.” Source: APHIS Lacey Act Primer
“No, we’re not joking…”
According to APHIS’ primer on the declaration requirement, here are the components that must be declared for this example of a simple wooden spoon:
Source: APHIS Lacey Act Primer
|Article/Component of article
||Plant scientific name
||Country of Harvest
|Red Oak handle
|Red Oak handle
|Red Oak knob
|White Birch bowl
|White Birch tang
|| Russian Federation
|Sugar Maple inlay
|Sugar Maple inlay
|Sugar Maple inlay
|Sugar Maple inlay
IWPA note: … and the above example doesn’t consider the fact that there are dozens of “red oak” species, nor does it provide an example for how you would identify the specific quantities of each article/component of article that is incorporated in this spoon as required by the statute.
Questions APHIS was asked about Lacey and the declaration requirement, and how they answered them.
On January 20, 2012, USDA Secretary Thomas Vilsack asked APHIS to respond to a number of questions about the Lacey Act amendments, including several specific questions about the declaration requirement. Below is an excerpted version of their reply (our emphasis added). For a copy of the letter from APHIS, please contact Ashley Amidon.
How effective have the import declarations been in monitoring for Lacey Act violations?
Currently, APHIS is not monitoring compliance with the Lacey Act`s plant declaration requirements. … APHIS does not receive most declarations until five to ten days after importation, often long after a product has entered commerce, which makes enforcement of the declaration requirement difficult.
What are your recommendations regarding applicability of the 2008 amendments to plants harvested or products manufactured prior to 2008?
APHIS agrees that products manufactured prior to the date of enactment should be exempted.
APHIS’ Advanced Notice of Proposed Rulemaking (6/30/2011), in which they explicitly cite the problems associated with the declaration requirement, and what they might propose to do about them.
Their questions, that we found interesting -
---How importers may comply with the declaration requirement when importing composite plant products whose genus, species, and country of harvest of some or all of the plant material may be extremely difficult or prohibitively expensive to determine;
Their statements, that we found intriguing -
---How to accommodate products made of re-used plant materials, or plant materials harvested or manufactured prior to the 2008 Lacey Act amendments, and for which identifying country of harvest, and possibly species, would be difficult if not impossible …
---We also recognize that the declaration requirement to identify the genus and species of all plants that may be contained in covered products may frequently require declarations to contain long lists of species. Show citation box
… Public comments and our experience implementing the declaration to date have drawn attention to the need to revise the declaration form to improve its effectiveness and remove unnecessary burdens associated with providing the required information.
A look ahead
Join us in Indian Wells, California March 28-30, 2012 for the IWPA World of Wood Convention, which brings together more than 250 overseas manufacturers, North American importers and distributors and the leading ports and companies that facilitate international trade.
Highlighting the program this year is Gibson Guitar’s CEO, Henry Juszkiewicz, and more than a dozen other speakers on subjects from the economy and international trade policy to business leaders from your key market segments. This year’s convention also features a half-day workshop specifically on Lacey Act compliance with tools and techniques you can use.
Learn more or register for IWPA`s Convention.
What`s Next? What do we need from you?
Please use this publication and the information provided to inform your customers, your suppliers, your friends and your neighbors. Refer to our website for updates, and send anyone our way who wants to know more about our actions to protect the integrity and improve the functioning of Lacey. As always, your thoughts and comments are welcome and appreciated. And your continued support is greatly appreciated.ed.
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