Comments on APHIS Proposed Lacey Act Definitions

October 18, 2010

The Animal Plant Health Inspection Service (APHIS) has received thirty-nine comments in response to its August 2010 proposed rule to define “common cultivar” and “common food crop,” including recommendations for further clarity.[1]

The submitted comments included a variety of concerns regarding the scope of exemptions, the definition of “commercial scale,” and clarity of the separate list of exempt plants/commodities.

In regards to the scope of exemptions, some comments conveyed concerns that certain cultivars and crops, or products from them, may inadvertently be excluded from the proposed definitions for cultivar and common food crop. Items specifically addressed included certain rayon, wild spices, carrageenan, alginate, syrup and gum. Certain comments also suggested that APHIS should define the phrase “on a commercial scale”  in regards to common cultivar and common food crop. The comments universally agreed that the list should be established as soon as possible.

APHIS also received multiple comments regarding the need for clarity in the proposed creation of a separate guidance document that would contain examples of plant taxa or commodities qualifying for exemption from the Lacey Act. Suggestions for the proposed guidance list included that the list include HTS numbers, that the list be as comprehensive and exhaustive as possible, and that APHIS should clearly indicate the force of law of this list and whether companies can rely upon it in their due care to make sure they are in compliance with the Act. In addition, some suggested that the example list of plant taxa and commodities exempt should be listed in the rulemaking instead of a separate guidance document. Several comments further suggested that APHIS explain in the rule how the public could nominate commodities for inclusion on the list.

APHIS plans to reopen the comment period in the near future.

For more information on the exemptions in the Lacey Act, see APHIS Proposes Definitions for Categorical Exemptions to Lacey Act Declaration Requirements or contact a Barnes/Richardson attorney.