Phase VIII of APHIS' Lacey Act Declaration May Take Place in Stages

As USDA’s Animal and Plant Health Inspection Service prepares for the Dec. 1 enforcement of the seventh phase of Lacey Act import declaration requirements (see 2405300052), officials already are eyeing the challenges that may come in implementing Phase VIII.

Phase VIII will cover composites (see 2404160048). One challenge for APHIS will be determining just what the definition for composites should be, according to Erin Otto, national policy manager for the Lacey Act. A proposed rulemaking may result to help APHIS create the proper definition.

“Phase VIII is going to require us to really think hard about how to implement it,” Otto said. Otto was speaking at an APHIS webinar on Aug. 21 about the Lacey Act, including the upcoming implementation of Phase VII.

"We believe that we're anticipating some rulemaking when it comes to the definition of composites because currently it doesn't indicate liquid, and we need to add that. ... Once we start working on Phase VIII, we'll be reaching out to industry pretty heavily to ask them about their products, their manufacturing process, and get an idea of how many processes they go through to get to their product.”

Because of the complexity of this last phase, Phase VIII might occur in two stages, according to Otto.

“Depending on the magnitude of [Harmonized Tariff Schedule] codes that we're going to have to add, it may be in two phases, maybe 8 and 8.2. Just because you're importing a composite plant material doesn't mean that you won't eventually have to give species and country of harvest,” Otto said. “Again, this is going to require us reaching out to industry to find out what the concerns and questions are and maybe challenges with the declaration filing.”

Another issue will be determining how far back along the manufacturing process APHIS should go when considering whether an item is derived from plant material, Otto said.

“The conundrum with composite products is that there are a ton of different things that are made out of plant and plant products. Everything from inert cellulose in your supplements and drugs to acetate rayon paper. All sorts of things that are composite materials that are made out of plant materials and latex and rubber and things like that,” Otto said “We're going to wrestle when we get to Phase VIII. We're going to wrestle with which HTS codes to choose.”

She continued, “We're going to have to find that midline because we do not want to add the entire HTS code world for Lacey.”

If importers are uncertain whether their item would need a Lacey Act declaration, Otto urged them to look at their supply chains. One example is whether an item consisting of material derived from bamboo would need Lacey Act treatment. According to Otto, wild bamboo requires a Lacey Act determination, but farmed or cultivated bamboo does not.

If the imported item is made of a product derived from bamboo but the importer can’t tell how the bamboo was cultivated, the importer will have “to check their supply chain” to determine how the bamboo was harvested, Otto said.

Once Dec. 1 rolls around with the implementation of Phase VII, CBP will work on Phase VIII. For Phase VII, importers will have to provide specific information within the PPQ Form 505 to show that it is meeting the requirements of the Lacey Act. That information will include the country where the plant or plant product was harvested, as well as the scientific name of the plant in full binomial nomenclature.

Phase VII is “called the junk drawer of the HTS code world. ... It’s everything from kitchenware to housewares to vehicles to pinball machines to umbrellas to sunglasses,” Otto said.