Trade Largely Supports De Minimis Exceptions for APHIS Lacey Declaration, Etc.

(See ITT's Online Archives or 06/30/11 and 07/05/11 news, 11063014 and 11070505, for BP summaries of APHIS' June 2011 advance notice of proposed rulemaking and an update on APHIS' report to Congress on the 2008 Lacey Act Amendments¹.)

The following are highlights of the comments received on the ANPR:

Non-Plant Products Containing Minimal Plant Materials

Most Say a De Minimis Exception Is Needed

Many trade associations agreed that it is not ideal to apply the Lacey Act import declaration requirement to minimal amounts of plant materials contained in otherwise non-plant products. Such requirements were seen as not likely advancing the purpose of the Lacey Act and being unduly burdensome to commerce, especially for small and medium-sized businesses. Therefore, many strongly supported the establishment of a de minimis threshold below which a Lacey Act declaration would not be required.

Two however stated that since private entities have been able to identify and provide such declaration information to APHIS to date, no de minimis exception should be provided.

A De Minimis Threshold of 10% Is Preferred, Some Want 5%

In its ANPR, APHIS invited comments on whether the de minimis threshold of plant material for the declaration exception should be set at 2%, 5% or 10%. Most associations agreed that a threshold of plant material representing 10% of the imported product should be used. A few others recommended a 5% threshold.

De Minimis Calculation by Weight Is Preferred, Some Want by Value

Several associations stated that a de minimis exception would be best defined by a percentage calculation of the value of the plant material included in the overall product. However, most associations suggested that a calculation of the weight of the plant material in the finished product would be the easiest, most consistent, and most reliable measurement. They stated that value is a more inconsistent measurement because it can fluctuate considerably over even short periods of time. Percent calculation of the de minimis threshold by volume was the least preferential option.

Products Containing Composite Plant Material

Need a De Minimis Exception for "Composite Plant Materials"

Associations explained that by the time some composite materials reach businesses, they have been transformed from a raw material into a finished product, often through several stages of processing. Tracing back through these multiple stages to identify the source plants and country of harvest would be arduous and costly as (i) a larger percentage is being derived from recycled wood; (ii) the species used in composite material change, depending on cost and supply; and (iii) the distribution chain for much of composite material could include many companies before reaching the ultimate manufacturer or product. Therefore, a de minimis exception for composite plant materials was largely supported.

One however noted that if APHIS ignored the declaration requirement with respect to products containing composite wood, it would make a mockery of the 2008 Lacey Act amendments and Congressional intent.

Exception Should be Based on Average Percent of Composite Material

In its ANPR, APHIS provided two possible approaches to incorporate a de minimis exception from the declaration requirement for composite plant materials in a product. The first approach would be for importers to 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.

Many associations suggested APHIS use the second approach, in which 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. (Information as to genus, species, and country of harvest would be required for any non-composite plant content under both approaches.)

Special Use Codes and Species Groupings

Special Use Codes Should Still be Used

Many associations stated that APHIS should continue its current practice of allowing importers to use a Special Use Code to state that the genus, species, and/or country of harvest is unknown for products made of re-used plant materials or plant materials harvested or manufactured prior to May 22, 2008 (the effective date of the Lacey Act amendment), as long as the due care has been exercised.

One association suggested that the Special Use Code be clarified to state that it also covers products manufactured after May 22, 2008 that are made with plant materials harvested prior to that date.

Species Groupings Should Be Expanded

Many associations urged APHIS to continue to permit the use of species groupings such as SPF (for spruce, pine and fir) and continue to explore the addition of other groupings when appropriate. Many stated that the SPF initiative was successful and that extending species grouping for commonly grouped products would benefit stakeholders by reducing costs, compliance risks, and would allow for more focused enforcement on shipments that are higher-risk in terms of illegal content.

One association noted that while species groupings reduce the burden on those filing declarations, a common grouping would not be possible or even identifiable for certain products that use many species. As such, these groupings would not make filing declarations any easier for those products.

Simplified PPQ 505 Declaration Form

Should Make Declaration Once, when Product First Imported

A majority of comments suggested that APHIS work to develop a simplified import declaration form PPQ 505. They also urged APHIS to continue its current policy that allows importers to check a box on the import declaration for products manufactured before May 22, 2008, thereby exempting them from identifying the genus, species, country of harvest, and value of plant material in that product.

Associations also suggested a simplified reporting system through which importers would be required to make the Lacey Act Declaration once - when the product is first imported -- and then should not have to make additional declarations for future imports of the same product.

¹The Lacey Act was amended on May 22, 2008, by making it unlawful to import, export, transport, sell, receive, acquire, or purchase in interstate or foreign commerce a broad range of plants and plant products (with some limited exceptions) taken or traded in violation of the laws of the U.S., a U.S. State, or other countries. The amendments also made it unlawful to make or submit any false information or label; implemented an import declaration requirement; and provided for civil and criminal penalties. (See ITT's Online Archives or 10/08/08 news, 08100805, for BP summary.)

(See ITT's Online Archives or 09/20/11 news, 11092020, for BP summary of a "filled out" sample of the new Lace Declaration Form PPQ 505.

See ITT's Online Archives or 09/07/11 news, 11090727, for BP summary of APHIS pointers on the Lacey Act Declaration.)

Comments are available by searching under Docket Number APHIS-2010-0129 at http://www.regulations.gov.