New Lacey Act De Minimis Exemption Will Take Effect on April 1st

On April 1, 2020, the U.S. Animal and Plant Health Inspection Service (APHIS) will begin exempting U.S. importers from the Lacey Act import declaration requirement for products containing de minimis levels of plant material content. The exemption was announced in the Final Rule that was published on March 2, 2020. See 85 Federal Register 12207 (March 2, 2020). Although the new de minimis exemption is scheduled to take effect on April 1st, APHIS stated that additional time may be required to implement it in the Automated Commercial Environment (ACE).  Affected U.S. importers are urged to review APHIS’  final rule and assess whether any of their products that are currently subjected to the import declaration requirement may qualify for the de minimis exemption.

By way of background, the Lacey Act is the United States’ oldest wildlife protection statute. It was first enacted in 1900 to combat the illegal logging, hunting and trafficking of plants, fish and animals. Section 8204 of The Food, Conservation and Energy Act of 2008 expanded the scope of the Lacey Act to include a wider range of plants and products and made it unlawful, beginning on December 15, 2008, to import certain plants and plant products without an import declaration (PPQ Form 505). The information that must be reported in the Lacey Act import declaration includes:

• The scientific name of the plant (genus and species);
• The value of the imported goods;
• The quantity of the plants;
• The name of the country in which the plant was harvested; and
• The average percentage of recycled content in paper and paperboard products without regard for the species or country of harvest.

If the species of plant is unknown, the import declaration must identify the name of each species of plant that may have been used. Similarly, if the species of plant is commonly taken from more than one country, and the exact country from which the plant was taken is unknown, the import declaration must contain the name of each country from which the plant may have been taken. Violations of the Lacey Act may result in the imposition of civil and/or criminal penalties, as well as seizure and forfeiture of imported merchandise.

The scope of the Lacey Act is extremely broad, and covers products containing plant and plant materials including: lumber, wood pulp, paper, paperboard, furniture, tools, sporting goods, printed matter, musical instruments, products manufactured from plant resins, boats, cars, trains, planes, pharmaceuticals, and textiles. The Lacey Act previously provided no de minimis level for imported products, and the only exclusions from the import declaration filing requirement involved:

• Common cultivars (except trees);
• Common food crops;
• Scientific specimens of plant genetic material used only for laboratory or field research;
• Any plant that will be planted or replanted (except those subject to the Endangered Species Act or the Convention on International Trade in Endangered Species of Wild Fauna and Flora); or,
• Packaging material used to support, protect or carry another item (unless the packaging material itself is the item being imported or subjected to some other purpose).

The new de minimis exemption from the import declaration requirement will apply to products in which—

The plant material …represents no more than 5 percent of the total weight of the individual product unit, provided that the total weight of the plant material in an entry of products in the same 10-digit provision of the Harmonized Tariff Schedule of the United States does not exceed 2.9 kilograms.

However, products that contain plant species of conservation concern which are listed in an appendix to the CITES, as an endangered or threatened species under the Endangered Species Act, or in any state conservation law will not qualify for the de minimis exemption. 

If you have any questions relating to the new Lacey Act de minimis exemption, the Lacey Act requirements, or other international trade-related issues, please contact  Miller Proctor Law PLLC (https://millerproctorlaw.com ).