Article Review: EU “Timber” Regulation (Regulation (EU) No 995/2010)

A short review about EU Timber Regulation base on this post.

What is EU "Timber" Regulation?

In October 2010 the EU adopted a new Timber Regulation  to combat trade in illegally harvested timber. This is one of a number of actions under the 2003 EU Action Plan on Forest Law Enforcement Governance and Trade (FLEGT).

Why EU 'Timber" Regulation?

1. EU FLEGT Action Plan (2003)

Spurred by discussions at the East Asia FLEG conference in September 2001, the European Commission published its Action Plan on Forest Law Enforcement, Governance and Trade (FLEGT) in May 2003. Approved by the Council of the EU in October 2003, it included the following proposals:

• Negotiation of bilateral FLEGT voluntary partnership agreements (VPAs) with producer countries. The VPAs will feature a licensing system designed to identify legal products exported from partner countries and license them for import to the EU; unlicensed products will be denied entry. (See Voluntary Partnership Agreements page.)
• Capacity-building assistance to partner countries to set up the licensing scheme, improve enforcement and, where necessary, reform their laws.
• Examination of EU member states' existing domestic legislation, and consideration of additional legislative options, to prohibit the import of illegal timber. (See EU FLEGT: Timber Regulation.)
• Encouragement for the use of government procurement policy to limit purchases to legal (and sustainable) sources. (See Public Procurement page.)
• Encouragement for voluntary industry initiatives to control their own supply chains, and thereby exclude illegal products. (See Supply Chain Management page.)
• Encouragement for financial institutions to scrutinise flows of finance to the forestry industry. (See Banks and Finance page.) 

2. FLEGT Regulation (2005)- Voluntary Partnership Agreements (VPA)

A key element of the FLEGT Action Plan is a voluntary scheme to ensure that only legally harvested timber is imported into the EU from countries agreeing to take part in this scheme. The internal EU legal framework for this scheme is a Regulation adopted in December 2005, and a 2008 Implementing Regulation, allowing for the control of the entry of timber to the EU from countries entering into bilateral FLEGT Voluntary Partnership Agreements (VPA) with the EU.  Once agreed, the VPAs will include commitments and action from both parties to halt trade in illegal timber, notably with a license scheme to verify the legality of timber exported to the EU. The agreements also promote better enforcement of forest law and promote an inclusive approach involving civil society and the private sector.

How to implement and what is the obligation?

1. Due Diligence- "operators" shall use procedures and measures called "due diligence system" (DDS)

The core of the ‘due diligence’ notion is that operators have to undertake a risk management exercise so as to minimize the risk of placing illegally harvested timber, or timber products containing illegally harvested timber, on the EU market.

The three key elements of the “due diligence system” are:

• Information: The operator must have access to information describing the timber and timber products, country of harvest, quantity, details of the supplier and information on compliance with national legislation.
• Risk assessment: The operator should assess the risk of illegal timber in his supply chain, based on the information identified above and taking into account criteria set out in the regulation.
• Risk mitigation: When the assessment shows that there is a risk of illegal timber in the supply chain that risk can be mitigated by requiring additional information and verification from his supplier

  

Source of the picture above: FLEGT June 2012 capacity4dev

 

2. Prohibition to place illegally harvested timber or timber products on the EU market

Through Timber Legality Assurance System (TLAS) of each own country. Source the timber back to the forest license area.

3. Traceability -"Traders" shall be identified to their suppliers and customer

Through the central point of expertise for timber procurement website provides online information on how to meet the UK Government’s Timber Procurement Policy, the EU Timber Regulation and the Forest Law Enforcement Governance and Trade (FLEGT) Regulation.

What is the product scope?

Listed in Annex using EU Custom codes. Covers a wide range of timber products (solid wood products, flooring, plywood, pulp) and includes  printed papers such as books, magazines and newspapers. The product scope can be amended if necessary. The Regulation applies to both imported and domestically produced timber and timber products. Timber and timber products covered by valid FLEGT or CITES licenses are considered to comply with the requirements of the Regulation. 

Does not cover waste and recycled products, packaging material to support or carry another product, certain bamboo and rattan products or other products not listed in Annex (e.g.: toys, musical instruments). Maybe amended to include other products

What is illegally harvested timber?

Harvested in contravention of the applicable legislation in the country of harvest such  as 

1. Legal rights to harvest
2. Taxes and fees linked to harvesting
3. Compliance with timber harvesting laws, including directly related environmental and forest legislation
4. Respect for third parties tenure/use rights
5. Relevant trade and customs rules

Who is liable?

“Operators” = any natural or legal person who places timber or timber products on the EU market.  Liable for exercising of due diligence and prohibition

"Traders” = any natural or legal person who trades on the internal market timber or timber products already placed on the market. Liable for the “traceability”

Who checks? Role of the member state 

Competent authorities =national government bodies responsible for the application and enforcement. This means looking into operators, monitoring organizations (selected from 27 EU member states)  and reports.  List of CA can be found here.  Penalties: effective, proportionate and dissuasive penalties

 

How does FLEGT and CITES licenses work?

Products covered by FLEGT or CITES licenses are considered to have been legally harvested for the purposed of the EU Timber Regulation. Means by importing FLEGT or CITES licenses timber, due diligence is exercised.

How about 3rd party verification?

Does not enjoy the "green lane" as FLEGT or CITES license. May be taken into account in the risk assessment and risk mitigation procedures if cover compliance with applicable legislation and if considered credible. Criteria for assessing their credibility in the implementing regulation.

When will EU Timber Regulation take place?

3rd of March 2013

Secondary legislation:

April / June 2012 a delegated Regulation on the procedural rules for the recognition and withdrawal of recognition of monitoring organization (selected from 27 EU member states)

June 2012 an implementing Regulation on the detailed rules concerning the due diligence system, the frequency and nature of the checks on monitoring organizations.

EFI EU FLEGT News, January/February 2012

 An update of the TLAS (VPA -EU FLEGT) consultations in Malaysia.

Malaysian National Seminar on Social Forestry

On the 29 November 2011 EFI’s EU FLEGT Asia participated in a Malaysian National Seminar on Social Forestry, entitled ‘Raising Quality of Life of Communities and Sustainable Forest Management’ in Lawas, Sarawak. The event, organised by the Malaysian Ministry of Natural Resources and Environment, the Sarawak Forests Department and the Sabah Forestry Department, aimed to support Social Forestry efforts in the country to improve the quality of life of communities working towards SFM. The event brought together international speakers and concluded with an active dialogue on social forestry and the role indigenous peoples play in it.

Strengthening of TLAS Linkages in Peninsular Malaysia

A Consultation on Mechanisms to Strengthen Coordination for the Implementation of Malaysia’s Timber Legality Assurance System (MYTLAS) was organised by the Protem Secretariat for the Malaysia - EU FLEGT VPA and held in Kuala Lumpur on 17 January. A total of 66 participants attended from a range of Ministries, the Forestry Departments of Peninsular Malaysia, Sabah and Sarawak, Labour Departments, Occupational Safety and Health Institutes and Customs, as well as the Malaysian Timber Industry Board (MTIB), the Malaysian Timber Certification Council (MTCC) and the Malaysian Timber Council (MTC). Following several presentations the group discussed progress with the system and made the following recommendations:

• That Malaysia should move ahead with the implementation of the system in order to be seen to support the trade of legally sourced timber and timber products.
• That the MYTLAS should be treated as a living document which could be improved through experience of implementation, increased resources and potentially, the application of new technologies. 
• That the system/process be designed to accept inputs from stakeholders from time to time.

For the first paragraph, it post either a contradiction or  a work out solution being made to my previous post. What I understood was that Sarawak state authorities has an opinion that VPA has put in non certification requirements such as prohibition of logging at Native Customary Rights  (NCR) area and  human right protection and also questioning the Malaysian authorities credibility when issuing the timber licenses to local player. 

And in this post they are working towards striving to support social forestry efforts in the country to improve the communities life quality towards Sustainable Forest Management (SFM). SFM post more stringent requirements than achieving legality. It means not only prohibiting illegal logging in NCR areas, only ensure the current communities livelihood are sustain and protected.

I wonder what the active dialogue has been concluded with between the international speakers and the indigenous people (representative) and would it be recognize, as they did not highlighted the dialogue has included the government or state authority involvement.

And well said in the second paragraph, I am looking forward for the implementation of TLAS system in Peninsular Malaysia and Sarawak. Sabah has already establish their own TLAS system for the Forest Management Units [SFMLA], will be soon to cover stateland and alienated land (Form IIB)  Specifically in Peninsular Malaysia, TLAS implementation should focus on the areas that are non PEFC/MTCS certified, which is the non Permanent Forest Estate (PFE) and alienated land. Treating MYTLAS as living document, I like that idea. 

Just an opinion

EU Plans (FLEG-T) & Malaysia

 

There are two questions I sorted out as being highlighted in this article:

1. Malaysia claimed that EU has added non certification requirements including the prohibition of logging on Native Customary Rights land; human right protection and also questioning the Malaysian authorities credibility when issuing the timber licenses to local player.
2. Whether the FLEGT Action Plan and timber regulation ploy by the EU to restrict tropical timber exports into its market?

What I thought about it:

1. It is a blank point shooting saying adding human and land rights into Legality as non certification requirements. That was part of where illegal logs are source from. Illegal logging does not mean small holders logging without licenses in the forest, is it also concerning forest license holders harvesting at on natural forest land preserve by or for the local communities (native use). And to that is where questioning the Malaysian authorities credibility for issuing timber licenses to local player comes in.
2. Last year, I attended a talk at BRE house in UK, the spoke person said their architect  and  designers will try to avoid using any tropical timber in designing  BRE house, whether if it is FSC certified or not. The reason was  they wouldn't want to risk when the house has been raised and when an environmental NGO's find one piece of wood  had been somehow source from  dispute or illegal origin, they would need to demolish the house! Say if this happen to a certified timber, what about just a legal verified timber? 

The FLEGT system was established to ensure the tropical timber entering EU market is not illegally sourced. They may have use a more complicated (or stringent) system, but I would not be concern about if tropical timber will be a restricted from entering EU market. More  importantly if Malaysia create can image that there is no questioning about the source of the local timbers being exported.

Just a thought.

Update: The column was posted in The Star newspaper dated 18 January 2012.