APHIS Proposes Exemptions From Declaration Requirements

MEMBER MEMORANDUM

 

APHIS Proposes Exemptions From Declaration Requirements

July 13, 2018

APHIS Seeks Comments on Two Proposed Options for de Minimis Exemption

The Animal and Plant Health Inspection Service is proposing a new de minimis exemption from Lacey Act declaration requirements for importers. Under the proposed rule, importers would not have to submit declarations for products with minimal amounts of plant material. The agency is considering setting thresholds based on either weight or volume at either the product or entry line level. APHIS is also proposing to codify certain declaration requirements in its regulations, including a deadline of three days after importation for the submission of declarations, and seeks comments on a separate exemption for composite wood products. Comments on both exemptions are due Sept. 7.

APHIS is considering two options for the de minimis exemption, and seeks comments on which approach it should take, as well as what thresholds would be appropriate:

  • Option One: 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.
  • Option Two: 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.

The figure of 2.9 kilograms in the first option is based on the weight of a boardfoot of lignum vitae. It seeks comments on what would be an appropriate maximum amount allowable by weight or board feet under its second option.

Regardless of the outcome, 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.

Alternative Options

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, also seeking comments on two proposed options:

  • Alternative Option One: 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
  • Alternative Option Two: 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.

Maximum de minimis Exemption Thresholds for Products with Unidentifiable Plant Weight

APHIS also seeks comments on what would be 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.

APHIS Proposes a Three-Day Time Limit for Lacey Act Declarations

APHIS is also proposing to set, and codify, in its regulations a time limit of three business days, effective from the time of importation, for importers to submit their Lacey Act declarations. Failure to timely comply would expose the importers to enforcement action or penalties for late filing.

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 is 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.

DATES: We will consider all comments that we receive on or before September 7, 2018.
ADDRESSES: You may submit comments by either of the following methods:

APHIS 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.  This exception would cover composite plant materials that are not otherwise considered de minimis quantities under the first regulatory option. 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. While provisions in the Lacey Act’s declaration requirement address how to complete a declaration in situations in which the species or country of harvest of plant material used in an imported product varies (16 U.S.C. 3372(f)(2)(A) and (B)), these provisions may not relieve the difficulties and expense faced by importers of some composite plant materials.

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.

The following are the specific questions for which APHIS now solicits comments:

» Is the scope of the proposed definition for composite plant materials appropriate, and if not, how could it be revised?

    » What would be an appropriate threshold for a de minimis exception from the declaration requirement for composite plant materials under the first approach identified above? We especially invite comment on the feasibility of providing importers an exemption from identifying in a declaration the genus, species, and country of harvest for up to 5 percent of the composite plant material in a product being imported so long as it does not include material from plants of conservation concern that are listed in an appendix to the Convention on International Trade in Endangered Species; as an endangered or threatened species under the Endangered Species Act of 1973; or pursuant to any State law that provides for the conservation of species that are indigenous to the State and are threatened with extinction. We also invite comment on whether that percentage should be higher or lower, and why. Additional data on why commenters support either the 5 percent threshold or an alternative threshold would be useful for the rulemaking process. We note that where a paper or paperboard plant product includes recycled plant product the statute only requires that the importer identify an average percent of recycled content without regard for the species or country of harvest of a recycled product, in addition to the information otherwise required for the non-recycled plant content.

    » Would the second approach discussed above, in which the declaration would have to contain the average percent composite plant 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) be appropriate as a de minimis exception to the Lacey Act declaration requirement and consistent with the statute? Would such an approach affect U.S. manufacturers who export finished products to Europe and other market nations that may require their traders to authenticate the source of wood or wood products?

    » Would an alternative approach to either of those described above concerning the import declaration requirement be appropriate in the case of composite products, and why?

    » What specific activities would affected entities (including importers and their suppliers) need to engage in in order to identify the species and country of harvest of plants in composite plant materials and thereby comply with the declaration requirement for products containing such plant materials?

    » How would those specific activities be affected by various levels of a de minimis exception to the declaration requirement products containing composite plant materials?

   »  In commenting on any of the approaches described above or proposing an alternative threshold, comments should take into consideration that a de minimis exception to a statutory requirement is being proposed, which means that the exception should be appropriately limited and consistent with the statute.

DATES: We will consider all comments that we receive on or before September 7, 2018.
ADDRESSES: You may submit comments by either of the following methods:

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