APHIS Proposes Definitions for Categorical Exemptions to Lacey Act Declaration Requirements

August 6, 2010

The Animal and Plant Health Inspection Service (APHIS) has published a proposed ruleto define “common cultivar” and “common food crop.” Common cultivars and common food crops are categorically exempted from the new Lacey Act Amendment declaration requirements that became effective on April 1, 2009. 

The proposed definitions are intended to clarify which plants and plant products are subject to the declaration requirement. Under the Lacey Act, as amended, it is unlawful to import plants or plant products without an import declaration containing the scientific name of the plant, value of the importation, quantity of the plant, and the name of the country from which the plant was harvested.

However, the Act also lays out two important exceptions to the declaration requirement which APHIS is proposing to define as follows:

• 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; (2) as an endangered species or threatened species under the Endangered Species Act of 1973; or (3) pursuant 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 the Convention on International Trade in Endangered Species of Wild Fauna and Flora; (2) as an endangered species or threatened species under the Endangered Species Act of 1973; or (3) pursuant any State law that provides for the conservation of species that are indigenous to the State and are threatened with extinction.

As proposed, these definitions would apply to the entire species or hybrid of a plant; the determination of whether a plant falls within these definitions not be made at the shipment or facility level. Additionally, to supplement these definitions, APHIS will be providing a list of examples of plant taxa or commodities that qualify for exemptions from the declaration requirement before the final rule is published.

Comments on APHIS’s proposed exemptions are due by October 4, 2010. For more information on the implications of this rule, please contact a Barnes/Richardson attorney.