APHIS Finalizes de Minimis Exemption From Lacey Act Declaration Requirements for Plants
The Animal and Plant Health Inspection Service is finalizing a new de minimis exemption from Lacey Act declaration requirements for importers. Under the final rule, importers will not have to submit declarations for products with minimal amounts of plant material, with limitations also set on the total amount of plant material on an entry line. The final rule takes effect April 1.
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According to APHIS, establishing the exemption will “relieve the burden on importers while continuing to ensure that the declaration requirement fulfills the purposes of the Lacey Act.” In 2018, there were about 400 shipments per week requiring declarations that potentially would have been eligible for the proposed de minimis exemption, with about 10 to 20 percent of those commodities estimated to meet the exception’s requirements. The number of eligible shipments in 2018 rises to 1,300 when accounting for the next phase of Lacey Act declaration enforcement, APHIS said.
Despite the April 1 effective date of the final rule, APHIS said that it “may take some time” to implement the new de minimis exemption in ACE. “It may take some time for the de minimis exception to be implemented in ACE. APHIS will announce the availability of the disclaim code through the stakeholder registry, and importers may begin using the disclaim code for the de minimis exception as soon as it is available in ACE,” the agency said.
APHIS Settles on 5% De Minimis Exemption With Entry Line Limits
After considering two options in its July 2018 proposed rule, APHIS settled on an exemption for products with 5% or less plant material by weight, and a total limit of 2.9 kilograms at the entry line level. As added to the Lacey Act regulation, the new exemption applies to products where:
“The plant material in a product 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 products in the same 10-digit provision of the Harmonized Tariff Schedule of the United States does not exceed 2.9 kilograms.”
Species of conservation concern ineligible. 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, are not to be eligible for the de minimis exemption.
No alternative exception by volume or value. While APHIS proposed two options for exemptions based on volume and value for instances when the weight of the plant material can’t be determined (see 1807060013), the agency adopted neither proposal in its final rule. “Implementation of de minimis exceptions based on volume or value would present challenges. We have therefore decided not to implement de minimis exceptions based on volume or value at this time. We will continue to consider ways to implement de minimis exceptions based on criteria other than weight to the plant declaration requirement,” APHIS said.
No Three-Day Time Limit for Lacey Act Declarations in Final Rule
Also in a change from its proposed rule, APHIS will not codify a grace period of three business days from time of importation for the submission of Lacey Act declarations by importers. “Lacey Act plant declarations are required to be filed upon landing in United States jurisdiction. Allowing importers to file declarations within 3 days would have established a grace period, not a new deadline. However, after considering the comments we received, we believe it is necessary to reexamine the establishment of a grace period and therefore are not adopting this aspect of the proposed rule at this time,” APHIS said.
Final Rule Sets Definitions, Declaration Requirements in Regulations
The final rule also codifies Lacey Act declaration requirements and associated definitions in APHIS’s regulations. Definitions of import, person and take are added, and the definition of plant is amended, “to conform to the definitions in the statute.” For example, APHIS is defining “import” as “to land, 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.”
APHIS is also adding 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. The agency noted that the declaration requirements added to the regulations are only those provided for by statute, and that it continues “to require additional information on the declaration form that links the declaration to the shipment. This is necessary to carry out the provisions of the Lacey Act.”
APHIS Continues to Consider Potential Exemption for Composite Materials
APHIS continues to consider an exemption for composite materials, after having concurrently issued a separate advance notice of proposed rulemaking on the potential exemption at the same time it issued its de minimis proposal in July 2018. “The concerns and recommendations of all the commenters will be considered if any new proposed regulations regarding the Lacey Act plant declaration are developed for composite materials,” APHIS said.
(Federal Register 03/02/20)