APHIS Proposes New de Minimis Exemption From Lacey Act Declaration Requirements for Plants

According to APHIS, establishing the exemption would “relieve the burden on importers while continuing to ensure that the declaration requirement fulfills the purposes of the Lacey Act.” From July 2015 through mid-June 2017, there were about 715 shipments per week requiring declarations that potentially would have been eligible for the proposed de minimis exemption. “Based on information available on those shipments, we estimate that between 10 [percent] and 20 percent of those commodities would have met the proposed definitions for de minimis exception,” APHIS said.

APHIS Seeks Comments on Two Proposed Options for de Minimis Exemption

APHIS is considering two options for the de minimis exemption, and seeks comments on which approach it should take and what thresholds would be appropriate. Specifically, the two options for thresholds below which products would not require a Lacey Act declaration are as follows:

• Products containing plant material that represents no more than 5 percent of the total weight of the individual product unit, provided that the total weight of the plant material in an entry of such products (at the entry line level) does not exceed 2.9 kilograms.
• Products containing plant material that represents no more than 5 percent of the total weight of the individual product unit, provided that the total weight of the plant material in an individual product unit does not exceed some amount of plant material by weight or board feet.

APHIS said it selected the figure of 2.9 kilograms in its first option based on the weight of a board-foot of lignum vitae. It seeks comments on what would be an appropriate maximum amount allowable by weight or board feet under its second option.

Species of conservation concern ineligible. In either case, species of conservation concern that are listed in an appendix to the Convention on International Trade in Endangered Species of Wild Fauna and Flora, as an endangered or threatened species under the Endangered Species Act, or pursuant to any state conservation law would not be eligible for the de minimis exemption.

Plant weight cannot be determined. In the event that plant material cannot be determined, APHIS is proposing a different method of determining whether a product qualifies for a de minimis exemption. Again, the agency is seeking comments on two proposed options:

• Products containing plant material that represents no more than 10 percent of the declared value of the individual product unit, provided that the total quantity of the plant material in an entry of such products (at the entry line level) has a volume of less than 1 board-foot; or
• Products containing plant material that represents no more than 10 percent of the declared value of the individual product unit, provided that the total quantity of the plant material in an individual product unit does not exceed some amount of plant material by weight or board feet.

APHIS also seeks comments on appropriate maximum thresholds for the de minimis exemption as it applies to products where plant weight can’t be identified. As with the normal de minimis exemption, products subject to species conservation agreements and laws would not be eligible.

Three-Day Time Limit for Lacey Act Declarations Proposed

APHIS is also proposing to set and codify in its regulations a time limit of three business days from time of importation for the submission of Lacey Act declarations by importers. Importers submitting declarations after that deadline would face enforcement action or penalties for late filing. APHIS said it is proposing this requirement in response to “some confusion about the time frame in which declarations should be submitted.” While the majority of importers submit their declarations at time of entry, others have submitted them up to a year after importation, APHIS said.

The three-day deadline should have “little impact” on importers, APHIS said. “Over 90 percent of current declarations are already submitted at the time of arrival and there is no reason to believe that the burden associated with submitting a declaration within 3 business days would be significantly greater than the burden associated with submitting a declaration more than 3 business days of importation,” it said.

Proposal Would Put Definitions, Declaration Requirements in Regulations

The proposed rule would also codify Lacey Act declaration requirements and associated definitions in APHIS’s regulations. Definitions of import and person would be added, and the definition of plant amended, “to conform to the definitions in the statute.” For example, APHIS would define “import” as “to land on, bring into, or introduce into, any place subject to the jurisdiction of the United States, whether or not such landing, bringing, or introduction constitutes an importation within the meaning of the customs laws of the United States.” The definitions “are the same as those in the Act and will help ensure that the declaration requirement continues to fulfill the purposes of the Lacey Act without unduly burdening commerce,” APHIS said.

APHIS would also add a new section to its regulations to specify the conditions under which a plant import declaration must be filed and what information it must include. “These conditions reflect the provisions of the Act and would provide additional context for the proposed exceptions,” APHIS said.

Separate APHIS Notice Seeks Comments on Potential Exemption for Composite Materials

APHIS concurrently issued a separate advance notice of proposed rulemaking seeking comments on a potential exemption for composite plant products. Originally discussed in a notice issued in 2011 (see 11063014), the exemption “would cover composite plant materials that are not otherwise considered de minimis quantities... . Many composite plant materials are currently manufactured in a manner that makes identification of the genus, species, and country of harvest of all of the plant content difficult and perhaps expensive,” APHIS said.

APHIS is again seeking input on the definition for composite plant materials from the 2011 notice. In that notice, composite plant materials were 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.” That would include “various complex composite materials (e.g., pulp, paper, paperboard, medium density fiberboard, high density fiberboard, and particleboard),” APHIS said. Species subject to conservation agreements and federal and state conservation laws would not be eligible.

APHIS is also still seeking comments on two options for an exemption for composite plant material. Under the first option, if the plant product being imported is composed in whole or in part of a composite plant material, importers would be exempted from identifying the genus, species, and country of harvest of up to a given percentage of the composite plant material content, measured on the basis of either weight or volume.

Under option two, where the plant product being imported is composed in whole or in part of a composite plant material, the declaration would have to contain the average percentage 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.

(Federal Register 07/09/18)