USDA Appeal Attorney Niger Seed
Our client was in quite a predicament when the USDA tried to label his bate as “illegal,” for import to the U.S. The problem is that the USDA did not recognize that boiling niger seed was actually the acceptable form of treatment that would otherwise make the bait legal.
BACKGROUND:
1. Respondent (our client) is the importer of fishing bait containing Guizotia abyssinica, hereinafter referred to as niger seed.
2. That such bait is produced in the form of dough that is cooked with less than 1% niger seed.
3. That Niger Seed is present in the bait.
4. That the Niger Seed is treated prior to being imported from Europe.
5. That the treatment of the Niger Seed is performed by way of boiling.
6. That boiling the seed is an acceptable form of treatment by the USDA.
COUNT 1
The USDA complains that Respondent has violated the Acts specified under 9 C.F.R. S95.4 and 122 by importing fishing bait and aquaculture products containing regulated articles from shipper Dynamite Baits Limited in violation of the permit to import such regulated articles.
Respondent contends that the USDA inappropriately applied laws regarding the import of its product.
ANSWER: 9 C.F.R. S 95.4 and 122, refer to animal products and animal by-products. This law is inapplicable to Guizotia abyssinica (niger seed).
That 7 CFR 360.400 is the applicable law that states that there are two exceptions that may allow niger seed to be imported into the United States. Our case falls into the second exception that states:
Applicable Law: S 360.400 Treatments
a) Seeds of Guizotia abyssinica (niger seed) are commonly contaminated with noxious weed seeds listed in S 360.200, including (but not limited to) Cuscuta app. Therefore, Guizotia abyssinica seeds may be imported into the United States only if:
1. They are treated in accordance with part 305 of this chapter at the time of arrival at the port of first arrival in the United States; or
2. They are treated prior to shipment to the United States at a facility that is approved by APHIS and that operates in compliance with a written agreement between the treatment facility owner and the plant protection service of the exporting country, in which the treatment facility owner agrees to comply with the provisions of S 319.37-6 and allow inspectors and representatives of the plant protection service of the exporting country access to the treatment facility as necessary to monitor compliance with the regulations. Treatments must be certified in accordance with the conditions described in S 319.37-13(c) of this chapter.
DISCUSSION:
Respondent falls under S 360.400 a) 2). EXHIBIT A clearly shows that the niger seed was treated by an approved APHIS facility. The approved treatment method of boiling, under 7 CFR 305, qualifies this as a safe product to import to the U.S. The niger seed is fully boiled with dough to create a final product used as bait called a boilee. Furthermore, there is no animal extract or live bait that is being imported from Europe.
USDA Appeal Attorney Niger Seed
