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Exemptions from Import Declaration and Other Lacey Act Requirements Clarified

Tuesday, July 09, 2013
Sandler, Travis & Rosenberg Trade Report

The Department of Agriculture’s Animal and Plant Health Inspection Services has issued an interim final rule defining two categories of plants and plant products that are exempt from the Lacey Act, including the import declaration and all other requirements related to the prohibition on the illegal taking of plants under the Act.

This final rule defines “common cultivar” and “common food crop,” two essential terms in the Lacey Act amendments of 2008. “Common cultivar” is defined as a plant (except a tree) that has been developed through artificial selection for specific morphological or physiological characteristics and is a species or hybrid, or a selection thereof, that is produced on a commercial scale. “Common food crops” are those that are raised, grown or cultivated for human or animal consumption and are a species or hybrid, or a selection thereof, that is produced on a commercial scale. Neither of these definitions includes plants that have been listed under an appendix of the Convention on International Trade in Endangered Species of Wild Fauna and Flora, as an endangered or threatened species under the Endangered Species Act, or pursuant to any state law that provides for the conservation of species that are indigenous to the state and are threatened with extinction. APHIS is also adopting and inviting public comment on definitions for the terms “artificial selection,” “commercial scale” and “tree.”

Plants included within the definition of either of these terms are excluded from the entire scope of the Lacey Act, including the 2008 amendments that imposed an import declaration and various other requirements. This exemption applies to the roots, seeds and parts of such plants as well as any products made from them. APHIS plans to address specific concerns about non-timber derivatives of living trees in a future action.

Members of the public may request the addition of specific goods to, or their removal from, a list of examples of plants and plant products that are exempt from the Lacey Act as common cultivars and common food crops, which will shortly be available here. Such requests must include the scientific name (genus and species) of the plant, common or trade names, annual trade volume or weight, and any other information that will help APHIS make a determination, such as countries or regions where grown, estimated number of acres or hectares in commercial production, etc.

All of the regulatory changes set forth in this rule, with the exception of the definitions of “commercial scale” and “tree,” will be effective as of Aug. 8. The addition of the definitions of “commercial scale” and “tree” will be effective Sept. 9 unless APHIS takes action to delay the effective date or to amend or withdraw either or both definitions. Comments on these two definitions are due no later than Aug. 8.

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