APHIS Finalizes Definitions for 'Common Cultivar' and 'Common Food Crop' Lacey Act Exceptions
The Animal and Plant Health Inspection Service finalized regulatory definitions for “common cultivars” and “common food crops” excluded from Lacey Act coverage, in an interim final rule set for publication in the July 9 Federal Register. The rule adopts an August 2010 proposal with some changes, including the addition of several definitions intended to clarify several “common cultivar” and “common food crop” terms. The interim final rule is effective Aug. 8, except for some clarifying definitions that are effective Sept. 9.
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The Food, Conservation, and Energy Act of 2008 expanded Lacey Act coverage to a broader range of plants and plant products (see 08051905). But it created an exclusion from Lacey Act coverage, including the new import declaration requirement, for “common cultivars, except trees, and common food crops.” The law didn’t define the scope of those exceptions, leaving it to APHIS to come up with more detailed definitions. APHIS proposed definitions for “common cultivars” and “common food crops” in an August 2010 proposed rule (see 10080330). The agency said it received 21 comments on the proposal from industry associations, importers, exporters, and governments, and in response made changes to the proposed definitions.
Rule Defines Common Cultivar, Common Food Crop Exceptions to Lacey Act
Under the new definition in 7 CFR 357, a “common cultivar” is a plant (except a tree) that (1) “has been developed through artificial selection for specified morphological or physiological characteristics;” (2) “is a species or hybrid, or a selection thereof, that is produced on a commercial scale;” and (3) is not listed in an appendix to the Convention on International Trade in Endangered Species of Wild Flora and Fauna (CITES), as endangered or threatened under the Endangered Species Act, or under any state conservation laws.
The interim final rule defines a “common food crop” as a plant that (1) “is raised, grown, or cultivated for human or animal consumption;” (2) “is a species or hybrid, or a selection thereof, that is produced on a commercial scale;” and (3) isn’t listed in an appendix to CITES, as endangered or threatened under the Endangered Species Act, or under any state conservation laws.
Clarifying Definitions Added to Proposal
In response to comments, the interim final rule adds definitions for several terms to clarify the common cultivar and common food crop definitions. APHIS added definitions to 7 CFR 357 as follows:
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.
Tree. A woody perennial plant that has a well-defined stem or stems and a continuous cambium, and that exhibits true secondary growth.
Artificial selection. The process of selecting plants for particular traits, through such means as breeding, cloning, or genetic modification.
Commercial scale. Production, in individual products or markets, that is typical of commercial activity, regardless of the production methods or amount of production of a particular facility or the purpose of an individual shipment.
APHIS said its decision to define “commercial scale” was spurred by concern from commenters that the term “implies a sizeable market rather than a viable one, and would unfairly impact small industries.” The definition clarifies that the exclusion for common food crop from Lacey Act coverage applies to specialty products grown commercially on a smaller scale.
Definitions Should Ease Importer Burden, APHIS Says
The new definitions should ease the burden on importers, rather than adding new costs, APHIS said. About 5 percent of Lacey Act declarations currently being made would fall under the exclusions provided for under this interim final rule. The cost savings from not making these declarations will be between $1 million and $3 million, APHIS said. “By defining the terms ‘common cultivar’ and ‘common food crop,’ the rule will facilitate importer understanding of and compliance with the Act’s requirements,” the agency said.
APHIS said it will maintain a list of examples of common cultivars and common food products excluded from Lacey Act coverage on its website (here). The public will be able to send inquiries about specific products and requests to add products to the list of exclusions by contacting APHIS at lacey.act.declaration@aphis.usda.gov.