APHIS Phase VII Delayed Until Early 2024, but Importers Should Start Preparing, Official Says

Wrangling over the federal budget has delayed an announcement of the particulars of phase VII of Lacey Act enforcement, as well as the subsequent six-month countdown until new declaration requirements are enforced, said Erin Otto, part of the Animal and Plant Health Inspection Service’s Lacey Act team, during a webinar hosted by the National Customs Brokers & Forwarders Association of America.

APHIS had hoped to issue a Federal Register notice by the end of 2023 listing the Harmonized Tariff Schedule codes that will require Lacey Act declarations under phase VII (see 2209200064). Now, as a result of “some things that are out of our control,” including the staggered continuing resolutions under which the government is now operating (see 2311160050), Otto said the notice will come in “early 2024.”

Otto is “hoping personally” that the notice is published in January or February, she said. “I may be disappointed, but c’est la vie.”

Lacey Act phase VII will cover all non-composite plant products that remain untouched by Lacey Act requirements, said Otto, who called it a “junk drawer” of HTS codes. “It’s going to include all sorts of random stuff,” she said. “Just think about everything in your house or garage or yard that may contain a plant or plant product.” Among products Otto mentioned during the webinar as covered in phase VII are wicker baskets, furniture, Christmas ornaments, pencils, sporting goods, lamps and kitchenware.

Otto and the rest of the four-person APHIS Lacey Act team “spent all summer combing through the HTS codes,” looking at thousands of them and “trying to pick out the ones that are remaining that contain plant material that is not 100% composite,” she said. Otto said they ended up identifying about 200 HTS codes.

As a result of phase VII’s complexity, APHIS is telling stakeholders to “check your supply chains” and “get the information now, so that you are ready to fill out those Lacey Act declarations” once the requirements take effect six months following publication of the phase VII Federal Register notice.

After APHIS finishes phase VII, it will begin work on phase VIII, which will cover composite materials, Otto said. Examples include paper, cardboard, books and composites of plant materials and plastics, she said.

As previously noted by Otto (see 2209200064), the phase will require regulatory changes to the definition of “composite,” because “the current definition of composite doesn’t really cover all the types of composites that are out there,” including liquids and materials with mechanical bonds, Otto said. Once the definition is “nailed down,” APHIS will begin its process of listing HTS codes that will require a Lacey Act declaration under phase VIII.

What will go on that list remains uncertain, Otto said. “There’s a lot of discussion to be had, including how far away from the plant are we getting? There’s a lot of things that are derived from plants and plant parts, like latex,” she said. “How far down from the rubber tree are we going to get?”

While Otto said latex gloves will not be covered by declaration requirements, “these are the things that we need to think about as regulators,” she said. APHIS will be “asking a lot of questions” of manufacturers, she added.

Otto said she doesn’t yet have a timeline for phase VIII, which she said is “hopefully the last phase” of implementation of Lacey Act declaration requirements. The timing depends on when APHIS gets phase VII done so “we can really start working” on the rulemaking.

In the meantime, Otto’s Lacey Act team has been working on analytics that will allow the agency to “be better at tracking compliance with the Lacey Act declarations,” she said. That includes an “in-house tool” that will allow APHIS to analyze its own internal data “to help us with targeting and help our law enforcement partners with some of their targeting and their investigations,” she said.

APHIS also has been involved with “Wood ID,” an initiative to collect samples “from around the world” that laboratories can use to determine species, Otto said. “There's a lot of trees out there, and from a lot of places, and not all the places in the world are easy to get to because of logistics, because of topology or topography, and also because of international affairs,” she said. The reference samples will be able to be used “not only by governments,” but also “by industry to really test their products to make sure that the products actually match the paperwork. That the species is what it says it is,” Otto said.