“Common Cultivars,” “Common Food Crops,” the Lacey Act and a Proposed Rule to Define These Terms

As amended, the Lacey Act now makes it unlawful to

1) Import, export, transport, sell, receive, acquire, or purchase in interstate or foreign commerce any plant, taken in violation of any federal, state, tribal, or foreign law that protects plants (with some limited exceptions), and

2) Make or submit any false record, account, or label for, or any false identification of, any plant covered by the Act, and

3) Import certain plants and plant products without an import declaration.

I remember when the 2008 amendments to the Lacey Act first went into effect and the conversations that came up around importer compliance:

“Will a declaration be required for my importation of cotton t-shirts?”

“Is the enclosed paper packing that cushions my merchandise going to require a Lacey Act declaration upon importation?”

The importing community really did not know how to make heads or tails out of these new laws, in large part, because there was little to no regulatory guidance as to their application. Let me rewind and explain what the Lacey Act is.

The Lacey Act, circa 1900, is the oldest wildlife statute in the U.S. Its mandate is to combat the illegal trafficking of plants, fish and wildlife.

As detailed above (in bold), with the new amendments, beginning in 2008, it became illegal to do certain acts involving plants and plant products. Part of this mandate therefore, included a requirement to make an import declaration stating

1) the scientific name of the plant
2) the value of the importation, and
3) the name of country from which the plant was harvested.

Fortunately, there were exceptions to this requirement, namely, if your merchandise was considered either a (1) “Common Cultivar” or, (2) “Common Food Crop.”

The problem has been however, that there has been no definition to describe what these two terms actually mean. (An administrative law issue not unlike that discussed in my previous article dated August 5, 2010.)

The obvious dilemma for the importing community has been one involving the judgment call made in deciding whether a declaration was necessary or not. After all, determining what a plant is may be relatively simple, but how many folks have ever heard if the term “common cultivar?”

To (finally) address this problem, both the U.S. Dept. of Interior’s Fish and Wildlife Service, together with the U.S. Dept. of Agriculture’s Animal and Plant Health Inspection Service (APHIS) set forth a proposed definition last week for these terms.

The proposed definitions, found in the Federal Register notice 75 FR 46859, are as follows:

Common cultivar. A plant (except a tree) that:
(a) Has been developed through selective breeding or other means for specific morphological or physiological characteristics; and
(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, and
(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.

If you would like to make comments on these proposed definitions, here is your chance to participate in the creation of administrative law. You may do so electronically at the Federal eRulemaking Portal or

send two copies by regular mail of your comment to Docket No. APHIS-2009-0018, Regulatory Analysis and Development, PPD, APHIS, Station 3A-03.8, 4700 River Road Unit 118, Riverdale, MD 20737-1238, stating that your comment refers to Docket No. APHIS-2009-0018.


Questions/comments? Post below or email me at clark.deanna@gmail.com