Beveridge & Diamond
 

APHIS Proposes Definitions for Lacey Act Exemptions - “Common Cultivar” and “Common Food Crop”

Beveridge & Diamond, P.C., August 16, 2010

On August 4, 2010, the Animal and Plant Health Inspection Service (“APHIS”) of the U.S. Department of Agriculture (“USDA”) issued proposed regulations under the Lacey Act, 16 U.S.C. § 3371 et seq.  The Lacey Act is a wildlife protection statute designed to combat illegal trafficking in wildlife, fish, and certain plants.  The Food, Conservation, and Energy Act of 2008, Public Law 110-234, amended the Lacey Act by expanding its protections to a broader range of plants and plant products.  It also exempted certain categories from the provisions of the Act, including common cultivars and common food crops.  The amendments did not define “common cultivar” or “common food crop,” but did direct USDA and the Department of the Interior (“DOI”) to promulgate regulations defining these terms.  The August 4, 2010 proposed rule would define those terms in a new Part 357 of the APHIS regulations in Title 7 of the Code of Federal Regulations.  The preamble explains that the proposed definitions are designed to ensure that these exemptions do not place plants of conservation concern at risk, while exempting plants of species grown commercially on a large scale.   

APHIS is accepting public comments on the proposed definitions until October 4, 2010.  A copy of the proposed rulemaking is available here.

I.       2008 Lacey Act Amendments

The Lacey Act is the United States’ oldest wildlife protection statute and its cornerstone is a prohibition on trafficking in illegal wildlife, fish, and plants.  The 2008 amendments, designed in part to combat illegal logging, expanded the Lacey Act’s protections to include a broader range of plants and extended its reach to encompass products that are derived from illegally harvested plants.  Notably, the amended Lacey Act makes it unlawful to import, export, transport, sell, acquire, or purchase in interstate or foreign commerce any plant (with limited exceptions) taken in violation of any federal, state, tribal, or foreign law that protects plants.  It is also unlawful under the Lacey Act to falsely identify or label any plant or plant product covered by the Act, and importers of certain plant products must file an import declaration that includes information on plant species and country of origin.  The Act includes criminal and civil penalties for any person who knew, or in the exercise of due care should have known, that he or she engaged in a commercial transaction involving illegally sourced plant products.

The Act defines “plants” as any wild member of the plant kingdom, including roots, seeds, trees from either natural or planted forest stands, and any products thereof.  Expressly excluded from this definition are “common cultivars” (except trees) and “common food crops.”  The definition also excludes scientific specimens of plant genetic material for research and any plants that are to remain planted or are to be replanted.  The Lacey Act does not provide USDA and DOI with express authority to promulgate definitions for scientific specimens or plants that are to remain planted or are to be replanted; therefore, these exemptions are not addressed in the current rulemaking.     

A full report on the 2008 Lacey Act Amendments and key requirements is available here.

II.    Proposed Definitions

APHIS and the Fish and Wildlife Service of the Department of the Interior developed the following proposed definitions of “common cultivar” and “common food crop”:

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

(a)   Has been developed through selective breeding or other means for specific morphological or physiological characteristics;

(b)   Is a species or hybrid that is cultivated on a commercial scale; and

(c)   Is not listed:

      1. In an appendix to the Convention on International Trade in Endangered Species of Wild Fauna and Flora (27 UST 1087; TIAS 8249);
      2. As an endangered or threatened species under the Endangered Species Act of 1973 (16 U.S.C. 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. A plant that:

(a)   Has been raised, grown, or cultivated for human or animal consumption;

(b)   Is a species or hybrid that is cultivated on a commercial scale; and

(c)   Is not listed:

      1. In an appendix to the Convention on International Trade in Endangered Species of Wild Fauna and Flora (27 UST 1087; TIAS 8249);
      2. As an endangered or threatened species under the Endangered Species Act of 1973 (16 U.S.C. 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.

APHIS intends to supplement these definitions through guidance in the form of a non-exhaustive list of examples of plant taxa or commodities that are considered common cultivars and common food crops (and thus excluded from the Act). 

* * * * *

For further information on the proposed rulemaking or other Lacey Act requirements, please contact Mark Duvall, mduvall@bdlaw.com; Laura Duncan, lduncan@bdlaw.com; or Lauren Hopkins, lhopkins@bdlaw.com.

For a printable PDF of this article, please click here.   

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