Details on APHIS’ Proposed Rule on Lacey Act Definitions

In addition, APHIS is proposing to add a definition for plant consistent with the definition in the Act.

Comments on this proposed rule are due by October 4, 2010.

Proposed Definitions Should Clarify Plant, Plant Products Subject to Act

The proposed definitions for these exemptions are intended to clarify which plants and plant products (e.g. articles made with plants) are subject to the provisions of the Act, including the declaration requirement for imported plants and plant products.

New 7 CFR Part 357 Would Define Exemptions and Plant

APHIS is proposing to establish a new 7 CFR Part 357 in order to define a categorical exemption to the Act, as well as the term “plant:”

Common cultivar. A plant (except a tree) that:

• has been developed through selective breeding or other means for specific morphological or physiological characteristics; and
• is a species or hybrid that is cultivated on a commercial scale; and
• is not listed: (1) in an appendix to the Convention on International Trade in Endangered Species of Wild Fauna and Flora (CITES)²; (2) as an endangered or threatened species under the Endangered Species Act of 1973 (16 USC 1531 et seq.)³; 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. A plant that:

• has been raised, grown, or cultivated for human or animal consumption, and
• is a species or hybrid that is cultivated on a commercial scale; and
• is not listed: (1) in an appendix to CITES²; (2) as an endangered or threatened species under the Endangered Species Act of 1973 (16 USC 1531 et seq.) ³; 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.

Plant. Any wild member of the plant kingdom, including roots, seeds, parts or products thereof, and including trees from either natural or planted forest stands. (See BP Note below)

Proposed Definitions Designed to Exempt Commercial Plants

The proposed definitions are designed to ensure that the exemptions do not place at risk plants of conservation concern, while exempting plants grown on a commercial scale. They are also designed to be consistent with existing and commonly understood definitions of the terms, as well as to be consistent with the provisions of the Lacey Act.

Proposed Definitions Would Apply to Entire Species, Hybrid of a Plant

As APHIS proposes to define them, these terms would apply to the entire species or hybrid of a plant; the determination of whether a plant falls within these definitions would not made at the shipment or facility level.

For example, bananas are a common food crop because bananas in general meet the definition of a common food crop. It is not necessary to determine whether specimens of bananas in a particular shipment or from a particular facility meet the definition.

APHIS to Provide List of Examples to Supplement Definitions

To supplement these definitions, APHIS will 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. According to APHIS sources, the guidance is expected before the final rule on the definitions is published.

The U.S. Department of Agriculture and the Department of the Interior will develop and maintain this list on a website and update it when necessary. APHIS will inform stakeholders when the list is updated via email and other electronic media. It will also note updates of the list on its website. This list will not be exhaustive, but APHIS will provide an email address to which the public can send inquiries about specific taxa or commodities and request to add taxa or commodities to the list.

(Note that the Act does not define the terms common cultivar and common food crop but instead gives authority to the U.S. Department of Agriculture and the U.S. Department of the Interior to define these terms by regulation. APHIS’ proposed rule would add regulations providing the required definitions.)

¹There are three categories of plants that are exempt from the provisions of the Act: (1) common cultivars, except trees, and common food crops (including roots, seeds, parts, or products thereof); (2) scientific specimens of plant genetic material (including roots, seeds, germplasm, parts, or products thereof) that are to be used only for laboratory or field research; (3) plants that are to remain planted or to be planted or replanted.

The amendments to the Lacey Act, including the declaration requirements, still apply for items described under 2 and 3 if the plant is listed (a)in an appendix to CITES; (b)as an endangered or threatened species under the Endangered Species Act of 1973 (16 USC 1531 et seq.); or (c)pursuant to any State law that provides for the conservation of species that are indigenous to the State and are threatened with extinction.

²CITES Appendices I, II and III are lists of species afforded different levels or types of protection from over-exploitation. Appendix I lists species that are the most endangered among CITES-listed animals and plants. Appendix II lists species that are not necessarily now threatened with extinction but that may become so unless trade is closely controlled. It also includes so-called "look-alike species", i.e. species of which the specimens in trade look like those of species listed for conservation. Appendix III is a list of species included at the request of a Party that already regulates trade in the species and that needs the cooperation of other countries to prevent unsustainable or illegal exploitation.

³The Endangered Species Act of 1973 implemented CITES; prohibits the unauthorized taking, possession, sale, and transport of endangered species; authorized the assessment of civil and criminal penalties for violating the Act or regulations; etc.

(The Lacey Act (16 USC 3371 et seq.) combats trafficking in illegal wildlife, fish, or plants. The Food, Conservation, and Energy Act of 2008 amended the Lacey Act on May 22, 2008, by making it unlawful to import, export, transport, sell, receive, acquire, or purchase in interstate or foreign commerce a broader range of plants, as well as plant products, with some limited exceptions, taken or traded in violation of the laws of the U.S., a U.S. State, or other countries.

In addition, the amendments made it unlawful to make or submit any false record, account or label for any false identification of, the plants and products covered by the Act. It also introduced the requirement for an import declaration for certain plants and plant products entering the U.S. Lastly, the amendments provide for both civil and criminal penalties for failure to comply.

Enforcement actions may be taken for any violations committed on or after May 22, 2008. However, the requirement to provide a declaration under the amended Act did not become effective until December 15, 2008. Moreover, enforcement of the declaration requirement is being phased-in by tariff number. The most recent enforcement phase, Phase IV, took effect on April 1, 2010.)

(See ITT’s Online Archives or 08/03/10 news, 10080330, for BP summary announcing the availability of this proposed rule.

See ITT’s Online Archives or 07/20/10 news, 10071945, for BP summary of OMB approving APHIS’ Lacey Act definitions proposed rule.)

APHIS contact- George Balady (301) 734-8295

BP Note

Officials have provided verbal clarification on APHIS’ proposed definition of the term “plant” with regard to the use of that term in the proposed definitions of “common cultivar” and “common food crop.”

These sources explained that the proposed definition of “plant” is for those plants SUBJECT TO the Lacey Act as amended. Common cultivars and common food crops are categorically exempted from the Lacey Act as amended. This means that they are NOT SUBJECT TO the Lacey Act as amended, and their proposed definitions are therefore not subject to the proposed definition of “plant”.