Comments on APHIS Proposed Lacey Act Definitions Rule Urge More Clarity, Etc.

While the comments on the proposed definitions and proposed list of examples to supplement the definitions were generally positive, they urged further clarity for both and certain revisions.

(See ITT’s Online Archives or 08/04/10 news, 10080415, for BP summary of APHIS’ proposed rule.)

APHIS Expected to Reopen Comment Period Soon

APHIS sources contacted by phone state that the agency is planning to reopen the comment period on this proposed rule in the near future, due to a request it received.

The following is an overview of the comments received to date:

Certain Cultivars/Crops May Inadvertently Fall Outside Scope of Exemptions

Some expressed concern that certain cultivars and crops or products from them, which they believed were beyond the scope of Congressional intent behind the Lacey Act amendments, may be inadvertently excluded from the proposed definitions² for common cultivar and common food crop. These include (partial list):

• Certain rayon. Rayon, when it is derived from cellulosic fiber that is from a tree, may not be covered by the common cultivar definition as currently proposed; while rayon, when it is derived from cellulosic fibers of a grass, would fit in the definition;
• Wild spices. Plants such as wild spices that are often not procured in the traditional understanding of the term “cultivated;”
• Carrageenan, alginate. Carrageenan and alginate products (used in food, pet food, toothpaste, personal care products, pharmaceuticals, and medical devices) that have other uses besides “human or animal consumption”;
• Syrup & gum. Maple syrup and gum Arabic which are cultivated from trees which remain planted and therefore may not be covered by the proposed definitions.

“Commercial Scale” Should be Defined

In addition, several urged APHIS to define or refine the phrase “on a commercial scale” in the proposed definitions for common cultivar and common food crop as this could vary by country and circumstance.

Separate List of Exempt Plants/Commodities Needs Clarity

APHIS received the following comments on its proposed plan to create a separate guidance document with examples of plant taxa or commodities that qualify for exemption from the provisions of the Act as common cultivars and common food crops:

Separate guidance vs. rule. Some stated that the rulemaking, not an “intended” separate guidance document, should list the examples of plant taxa or commodities that would be excluded. One even wondered how the public could adequately evaluate a proposed rule without any concrete examples to consider. Another suggested that APHIS list certain illustrative examples of exemptions in the rulemaking and then refer people to the separate guidance document for a more complete list. Still others thought that a separate document was the most appropriate approach.

List and due care. There should be a clear statement indicating the force of law of this list, and whether companies can rely upon it in their due care to make sure they are properly complying with the Act.

Be comprehensive. Most stated that the list of examples should be as exhaustive as possible. Several said APHIS should include common cultivars and common food crops that are highly processed for commercial use that may be easily overlooked as plant-source materials. Others said the list should include goods regulated by FDA and certain organic chemicals. One commenter stated that the list needs to clearly caution that while APHIS has attempted to be comprehensive, the list is only illustrative, not exhaustive.

Include HTS numbers. Several organizations urged APHIS to include HTS numbers for the listed exempt items. One said APHIS should first include the entire Tariff Sections and/or Chapters that qualify for exemption, followed by specific commodities that are pre-identified by APHIS or added upon request when establishing this guidance document.

Establish as soon as possible. All stated that the list should be established as soon as possible to provide predictability and clarity to the trade.

Explain public nomination process. Several urged APHIS to clarify in the final rule how its plan to allow the public to nominate commodities for inclusion on the list would work.

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.

²In the proposed rule, “common cultivar” would be defined as: 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) as an endangered or threatened species under the Endangered Species Act of 1973 (16 USC 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” would be defined as 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 CITES; (2) as an endangered or threatened species under the Endangered Species Act of 1973 (16 USC 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.

(D/N APHIS-2009-0018)