APHIS ANPR Considers New Exceptions for Lacey Act Declaration, Etc.

Comments on this ANPR are due by August 29, 2011.

(See ITT’s Online Archives or 06/29/11 news, 11062915, for BP summary announcing the availability of APHIS’ ANPR.)

Highlights of the issues and ideas APHIS is seeking comment on include:

Non-Plant Products Containing Minimal Plant Materials

APHIS states that it is not ideal to apply the declaration requirement to minimal amounts of non-listed (i.e., not of conservation concern¹) plant materials contained in an otherwise non-plant product, such as wooden buttons on a shirt. Instead this issue might be efficiently addressed by describing a level at which the declaration requirement does not apply.

Defining a De Minimis Exception for Small Quantities

APHIS invites comment on defining such a “de minimis” exception for small quantities of plant materials in non-plant products. The exception could be defined in terms of the volume, weight, or value of plant material in each item being imported, or using some combination of one or more of these measures. APHIS also invites comment on whether the threshold of this plant material exception should be set at 2%, 5%, or 10% of a product.

Products that Have Composite Plant Materials

APHIS is also seeking comments on how importers may comply with the declaration requirement when importing products that contain “composite plant materials” whose genus, species, and country of harvest may be extremely difficult or prohibitively expensive to determine.

Defining a De Minimis Exception

According to APHIS, “composite plant materials” could be defined as plant products and plant-based components of products where the original plant material is mechanically or chemically broken down and subsequently re-composed or used as an extract in a manufacturing process. Such a definition would exclude plant species of conservation concern.¹

APHIS is considering two possible approaches to incorporate such a definition into a de minimis exception from the declaration requirement for “composite plant materials”:

1. Importers would identify the genus, species, and country of harvest of no less than a given percentage of the composite plant material content, measured on the basis of either weight or volume, in addition to information as to genus, species, and country of harvest for any non-composite plant content; or

2. Importers would provide the average percent composite plant content, measured on the basis of either weight or volume, without regard for the species or country of harvest of the plant, in addition to information as to genus, species, and country of harvest for any non-composite plant content.

APHIS also invites comment on the possibility of using the Genus spp. format (for example, Acer spp.) for certain composite plant materials in limited circumstances, and on the possible percentages that could be used as a threshold for a de minimis exception from the declaration requirement for composite plant materials.

Products with Re-Used or Pre-2008 Plant Materials

APHIS is seeking comments on 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 possible species would be difficult if not impossible.

Special Use Code

APHIS currently allows an importer to declare that the product being imported was manufactured prior to May 22, 2008, and that in the exercise of due care, the genus, species, and/or country of harvest is unknown. The importer must still provide on the declaration form all known or reasonably knowable genus, species, and country of harvest information, and the person completing the declaration must certify that the declaration is correct to the best of his or her knowledge. An APHIS-designated Special Use Code is provided to streamline the declaration of materials manufactured prior to the amendment.

APHIS anticipates that this approach could continue to be used for trade in existing inventories and would diminish in use rapidly, ultimately applying largely to antique products, or those being re-sold. APHIS invites comments on this practice.

Revising PPQ 505 Declaration

Public comments and APHIS’ experience implementing the declaration to date have drawn attention to the need to revise the declaration form (PPQ 505) to improve its effectiveness and remove unnecessary burdens associated with providing the required information.

APHIS is soliciting comments on the following possible changes to the declaration form:

Substituting “Country of Harvest” with “Harvest Location”

The declaration could be revised to substitute a new term in place of the term “country of harvest,” which experience has indicated is so similar to the Customs term “country of origin” as to be confusing. APHIS is considering using the phrase “harvest location (by country)” to attempt to more clearly distinguish this information from the Customs concept of country of origin of the merchandise.

Revising Form for Composite Materials, Pre-2008 Products, Etc.

The declaration form could be further revised to accommodate the other changes and proposals described above. These changes could include revision of the form to collect information required for composite materials (the percent composite material in the shipment for which it is not possible to identify species and/or country of harvest).

In addition, the revised form could have a box that would have to be checked when an importer needs to report goods manufactured prior to May 22, 2008, for which the importer cannot determine, in the exercise of due care, the genus, species and/or country of harvest of those plant products. The box would state that the plant products were manufactured prior to May 22, 2008, and that in the exercise of due care, the importer has been unable to determine the genus, species, and/or country of harvest information that is lacking on the declaration form.

Use of Species Groupings

The final issue that APHIS is seeking comments on is whether more groups of species commonly used in commercial production, could be given a separate name that could be entered on the declaration form as a type of shorthand identification of genus and species, such as the currently recognized “SPF” acronym for “spruce, pine, and fir.”

Proposals for Additional Groupings

APHIS invites proposals for additional groupings to be considered beyond those for which APHIS has already begun to provide reference codes (available here). Any proposal for a species group should contain the complete list of species to be included and additional information with which APHIS can evaluate the extent to which the proposed group is currently represented in goods in international trade. Only those species group codes posted on the APHIS website can be used to meet the requirement to provide genus and species information on the plant import declaration.

¹Plant species of conservation concern are listed by the Convention on International Trade in Endangered Species (CITES), under the Endangered Species Act, or pursuant to State law.

(The Food, Conservation and Energy Act of 2008, effective May 22, 2008, amended the Lacey Act by expanding its protection to a broader range of plants and plant products.

Section 3 of the Lacey Act, as amended, makes it unlawful to import certain plants, including plant products, without an import declaration. The declaration must contain the scientific name of the plant, value of the importation, quantity of the plant, and name of the country from which the plant was harvested. The declaration requirements of the Lacey Act became effective on December 15, 2008, and enforcement of those requirements is being phased in.)

(See ITT’s Online Archives or 04/18/11 news, 11041817, for BP summary of CBP stating that it was working on an ANPR to address certain aspects of the Lacey Act, such as regulatory flexibility.)

APHIS contact- George Balady (301) 734-5783

(FR Pub 06/30/11)