APHIS Proposes Definitions for Exempt and Regulations Articles

On August 4, 2010, the Animal and Plant Inspection Service (APHIS), in response to amendments to the Lacey Act, issued a proposed rule in the Federal Register establishing definitions for the terms "common cultivar" and "common food crop." As amended, the Lacey Act now makes it unlawful to: (1) import, export, transport, sell, receive, acquire, or purchase in interstate or foreign commerce any plant, with limited exceptions, obtained in violation of any Federal, State, tribal, or foreign law that protects plants;  (2) make or submit any false record, account, or label for, or any false identification of, any plant covered by the Act; and (3) to import certain plants and plant products without an import declaration. The declaration must contain the scientific name of the plant, value of the import, quantity of the plant, and name of the country from which the plant was harvested. 

Under the proposed rule, "common cultivar" is defined as a plant (except a tree) that: 
(a)   Has been developed through selective breeding or other means     for specific morphological or physiological characteristics; and
(b)   Is a species or hybrid that is cultivated on a commercial scale; and
(c)   Is not listed:
    (1) In an appendix to the Convention on International Trade in Endangered Species of Wild Fauna and Flora (27 UST 1087; TIAS 8249);
    (2) As an endangered or threatened species under the Endangered Species Act of 1973 (16 U.S.C. 1531 et seq.); or
    (3) Pursuant to any State law that provides for the conservation of species that are indigenous to the State and are threatened with extinction.

"Common food crop" is defined as a plant that:
(a)    Has been raised, grown, or cultivated for human or animal consumption, and
(b)    Is a species or hybrid that is cultivated on a commercial scale; and
(c)    Is not listed:
    (1)    In an appendix to the Convention on International Trade in Endangered Species of Wild Fauna and Flora (27 UST 1087; TIAS 8249);
    (2)    As an endangered or threatened species under the Endangered Species Act of 1973 (16 U.S.C. 1531 et seq.); or
    (3)    Pursuant to any State law that provides for the conservation of species that are indigenous to the State and are threatened with extinction.

The rule also provides definition for "plant" as "any wild member of the plant kingdom, including roots, seeds, parts or products thereof, and including trees from either natural or planted forest stands." 

In addition to the definitions, APHIS intends to provide guidance in the form of a list of examples of plant taxa or commodities that qualify for exemption from the provisions of the Act as common cultivars and common food crops. The U.S. Department of Agriculture (USDA) and the U.S. Department of the Interior (DOI) will develop and maintain this list on-line and will update as necessary. List updates will also be made available on APHIS' web site. 

Comments on the proposed rule are due October 4, 2010.