Regulatory Impact Analysis and 

Initial Regulatory Flexibility Analysis 

Proposed Rule 

Lacey Act Implementation, Definitions for Exempt and 

Regulated Articles 

APHIS 2009-0018 

U.S. Department of Agriculture 

Animal and Plant Health Inspection Service 

June 2010 
i 

Summary 

Recent amendments to the Lacey Act expanded its protections to a broader range of plant 

species, extended its reach to encompass products, including timber, that derive from illegally 

harvested plants, and require that importers submit a declaration at the time of importation for 

certain plants and plant products. Common cultivars and common food crops are among the 

categorical exemptions to the provisions of the Act. The Act does not define the terms “common 

cultivar” or “common food crop,” but instead gives authority to the U.S. Department of 

Agriculture and the U.S. Department of the Interior to define these terms by regulation. This 

proposed rule provides these definitions. 

To the extent that the proposed rule defines which products are exempted from the 

provisions of the Act, it would benefit U.S. importers, large and small.1

 By defining the terms 

“common cultivar” and “common food crop,” the proposed rule would facilitate importer 

understanding of and compliance with the Act’s requirements. 

“Common cultivar” and “common food crop” are defined in this proposed rule to ensure 

that the exemptions do not place at risk plants of conservation concern. The definitions are also 

consistent with the terms’ existing and commonly understood definitions. Since the terms have 

not previously been defined, there should be no instances in which an importer would be 

required because of this rule to make declarations for commodities that are not now being 

declared. In other words, the definitions presented in this rule and the related exemptions should 

not result in additional costs for importers based on their current activities. On the other hand, 

 

1 Enforcement of the declaration requirements is being phased in utilizing categories from the Harmonized 

Tariff Schedule (HTS) of the United States. Only a limited number of product categories are currently being 

enforced. Therefore, some products that are not exempted under the Act can currently enter the United States 

without a declaration. Conversely, a small number of declarations are currently being filed for commodities that are 

either common cultivars or common food crops under the proposed definitions.
ii 

the U.S. Department of Agriculture’s Animal and Plant Health Inspection Service has estimated 

that about 5 percent of declarations being made under the current stage of phased in enforcement 

of the Act are either for common cultivars or common food crops that would be exempted under 

the proposed definitions. The costs incurred in making these declarations are a measure of the 

expected benefits of the rule. We estimate the total annual cost savings associated with these 

declarations alone would be between $900,000 and $2.8 million. Note that the full 

implementation of the declaration requirement would cover far more product categories than 

currently require a declaration.
iii 

Table of Contents

Summary .............................................................................................................................. i

Introduction ......................................................................................................................... 1

Benefits and Costs of the Rule ............................................................................................ 2

Initial Regulatory Flexibility Analysis ................................................................................ 4

Reasons Action is Being Considered .............................................................................. 5

Objectives of and Legal Basis for the Rule .................................................................... 5

Potentially Affected Small Entities ................................................................................. 5

Projected Reporting, Recordkeeping, and Other Compliance Requirements ................. 8

Duplication, Overlap, or Conflict with Existing Rules and Regulations ........................ 9

Alternatives to Minimize Significant Economic Impacts of the Rule ............................ 9
1 

Introduction 

The Lacey Act, as amended, makes it unlawful to import, export, transport, sell, receive, 

acquire, or purchase in interstate or foreign commerce any plant, with some limited exceptions, 

taken in violation of any Federal, State, tribal, or foreign law that protects plants. The Lacey Act 

also requires import declarations for certain plants and plant products and makes it unlawful to 

make or submit any false record, account, or label for, or any false identification of, any plant 

covered by the Act.2 Common cultivars and common food crops are among the categorical 

exemptions to the provisions of the Act, but are not defined within the Act. 

The Department of Agriculture’s Animal and Plant Health Inspection Service (APHIS) 

and the Department of the Interior’s Fish and Wildlife Service are proposing to establish 

definitions for the terms “common cultivar” and “common food crop.” 3 These proposed 

definitions would specify which plants and plant products are subject to the provisions of the 

Act, including the declaration requirement. 

 

2

 The declaration must contain, among other things, the scientific name of the plant, value of the importation, 

quantity of the plant, and name of the country where the plant was harvested. For paper and paperboard products 

containing recycled content, the declaration also must include the average percent of recycled content without regard 

for species or country of harvest.

3 The proposed definitions 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. 
2 

Benefits and costs of the rule are examined in accordance with Executive Order 12866, 

and the benefits are expected to exceed the costs overall. Possible impacts on small entities are 

considered in accordance with the Regulatory Flexibility Act. 

Benefits and Costs of the Rule 

The recent amendments to the Act impose the declaration requirement on imports of 

plants and plant products and create three categories of plants that are exempt from the 

provisions of the Act: (1) Common cultivars, except trees, and common food crops (including 

roots, seeds, parts, or products thereof); (2) Scientific specimens of plant genetic material 

(including roots, seeds, germplasm, parts, or products thereof) that are to be used only for 

laboratory or field research; and (3) Plants that are to remain planted or to be planted or 

replanted.4

 Since the declaration requirement and the exemptions were established directly in the 

2008 Farm Bill, their existence, per se, is not a matter for consideration in the proposed rule or in 

this analysis.5

 Our analysis is of the expected benefits and costs of the proposed definitions of 

“common cultivar” and “common food crop.” 

To the extent that the proposed rule defines which products are exempted from the 

provisions of the Act, it would benefit U.S. importers. By defining “common cultivar” and 

“common food crop,” the proposed rule would facilitate importer understanding of and 

compliance with the Act’s requirements. 

 

4

 Exclusions 2 and 3 do not apply if the plant is listed: in an appendix to the Convention on International Trade in 

Endangered Species of Wild Fauna and Flora (CITES); or as an endangered or threatened species under the 

Endangered Species Act of 1973; or pursuant to any State law that provides for the conservation of species that are 

indigenous to the State and are threatened with extinction. 

5

 The public comments received in response to APHIS’ published notices of October 8, 2008 and February 3, 2009 

in Docket No. 2008-0119 contain little in the way of substantive data on the cost of complying with the declaration 

requirement. However, those comments indicate that, for some importers, the requirement could be burdensome. 
3 

Enforcement of the declaration requirements is being phased in utilizing categories from 

the Harmonized Tariff Schedule of the United States (HTS). The phase-in schedule is largely 

based on the degree of processing and complexity of composition of the affected products. The 

declaration requirements for products in parts of HTS Chapters 44, 66, 82, 92, 93, 94, 95 and 97, 

are the only requirements currently being enforced.6 Therefore, some products that are not 

exempted under the Act can currently enter the United States without a declaration. 

Importers of a small number of products that would be exempt based on the definitions 

proposed in this rule may currently be filing declarations upon entry of their products into the 

United States. Importers of those products would benefit from this rule. 

Under the current stage of enforcement of the Lacey Act, 9,200 declarations per week 

have been filed on average. It is estimated that about 5 percent of these declarations are being 

filed for commodities that are either common cultivars or common food crops under the 

proposed definitions. The cost incurred in making these declarations is one measure of the 

expected benefits of the rule. The costs to those filing these declarations include the labor cost to 

collect and maintain the necessary data and to complete and review the paperwork, the cost of 

postage for paper declaration submissions, and the cost of the automated broker interface (ABI) 

fees for electronic declaration submissions. In addition, there are government costs for 

processing those declarations. We estimate the total annual cost savings would be between 

 

6

 Enforcement of the declaration requirement for goods in 4401-fuel wood; 4403-wood in the rough; 4404-

hoopwood; poles, piles, stakes; 4406-railway or tramway sleepers; 4407 wood sawn or chipped lengthwise; 4408 

sheets for veneering; 4409-wood continuously shaped; 4417-tools, tool handles, broom handles; and 4418-builders’ 

joinery and carpentry of wood began on April 1, 2009. For 4402-wood charcoal; 4412 plywood, veneered panels 

except 44129906 and 44129957; 4414-wooden frames; 4419-tableware & kitchenware of wood; and 4420 wood 

marquetry, caskets, statuettes enforcement began on Oct. 1, 2009. For 4421-other articles of wood; 6602 walking 

sticks, whips, crops; 8201-hand tools; 9201-pianos; 9202-other stringed instruments; 9302-revolvers and pistols; 

93051020-parts and accessories for revolvers and pistols; 940169-seats with wood frames; 950420-articles and 

accessories for billiards; and 9703-sculptures enforcement began on April 1, 2010. 
4 

$900,000 and $2.8 million. These estimated cost savings are based on 23,9207

 annual 

declarations that would not need to be filed, 1.5 hours of management time per declaration for 

data collection, completion and review of each declaration,8 postage costs of $0.44 per paper 

declaration, ABI fees of between $10 and $30 per electronic declaration,9

 and salary and benefits 

for 2.3 government declaration processing positions.10 

Note that the full implementation of the declaration requirement would cover far more 

product categories than currently require a declaration. We cannot predict the total number of 

declarations that would occur under full implementation. 

Since the terms “common cultivar” and “common food crop,” while not yet defined by 

regulation, were previously included in the statute, there should be no instances in which an 

importer would be required because of this rule to make declarations for commodities that are 

not now being declared. In other words, the definitions presented in this rule and the related 

exemptions should not result in additional costs for importers based on their current activities. 

Initial Regulatory Flexibility Analysis 

The Regulatory Flexibility Act requires agencies to evaluate the potential effects of their 

proposed and final rules on small businesses, small organizations and small governmental 

jurisdictions. Section 603 of the Act requires agencies to prepare and make available for public 

comment an initial regulatory flexibility analysis that describes expected impacts of a proposed 

rule on small entities. 

 

7

 Five percent of 9,200 total declarations per week over an entire year. 8

 The cost of this management time is based on the range in median hourly compensation for various management 

occupations, not including chief executives, of between $15.55 and $55.08. Bureau of Labor Statistics, May 2009 

National Occupational Employment and Wage Estimates. 

9

 Based on various industry sources for brokerage service fees. 

10 Based on GS-5 step 5 or GS-7 step 5 salaries and benefits, and each employee processing 200 declarations per 

week. 
5 

Reasons Action is Being Considered 

Recent amendments to the Lacey Act expanded its protections to a broader range of plant 

species, extended its reach to encompass products, including timber, that derive from illegally 

harvested plants, and require that importers submit a declaration at the time of importation for 

certain plants and plant products. Common cultivars and common food crops are among the 

categorical exemptions to the provisions of the Act. The Act does not define the terms “common 

cultivar” and “common food crop” but instead gives authority to the U.S. Department of 

Agriculture (USDA) and the U.S. Department of the Interior (DOI) to define these terms by 

regulation. This proposed rule is intended to provide these definitions. 

Objectives of and Legal Basis for the Rule 

The definitions are designed to ensure that the exemptions do not place at risk plants of 

conservation concern, while exempting plants that are grown on a commercial scale. The 

definition for “common cultivar” is consistent with the definition of “cultivar” contained in the 

CITES regulations promulgated by the DOI’s Fish and Wildlife Service, with additional phrasing 

added in order to limit the definitions to “common” exemplars. The definition for “common 

food crop” was developed with consideration of common dictionary definitions and terms in 

commercial use. In both definitions, the exceptions for endangered and threatened species are 

consistent with the provisions of the Act. 

Potentially Affected Small Entities 

The Small Business Administration (SBA) has established guidelines for determining 

which entities are to be considered small. Plants and plant products, such as fruits, vegetables, 

and nursery stock are imported into this country for commercial purposes, for research, for 

education, and by hobbyists and collectors and are covered under the Act. In addition, many less 

obvious products, such as cotton shirts and pharmaceuticals, contain plant products and are also 
6 

covered under the Act. Therefore, the importers potentially affected by the proposed rule 

represent a broad cross section of U.S. businesses, government and university research 

institutions, non-profit operations, and individuals. 

Importers of plants and plant products are primarily identified within the wholesaling 

sector of the U.S. economy. Importers either sell goods on their own account (import merchants) 

or arrange for the sale of goods owned by others (import agents and brokers). Importers fall into 

the North American Industrial Classification System (NAICS) sector 42. In particular, fruit and 

vegetable importers are in sector 424480, fresh fruit and vegetable wholesale. Importers of 

frozen fruits and vegetables are part of NAICS sector 424420, packaged frozen food wholesale. 

Importers of flowers and nursery stock are part of NAICS 424930, flower, nursery stock & 

florists’ supplies wholesale. Importers of seeds are part of NAICS 424910, farm supplies 

wholesale. 

In 2007, the average wholesaling establishment had revenues of $15 million. Fresh fruit 

and vegetable wholesalers had average revenues of $12.4 million, packaged frozen fruit 

wholesalers had average revenues of $25.1 million, flower, nursery stock and florist supplies 

wholesalers had average revenues of $2.8 million, and farm supply wholesalers had average 

revenues of $9.5 million.11 

A firm primarily engaged in wholesaling commodities is considered small if it employs 

not more than 100 persons. In 2002, more than 98 percent of all wholesaling establishments 

were considered small.12 About 95 percent of fruit and vegetable wholesalers and packaged 

frozen food wholesalers were considered small. More than 97 percent of flower, nursery stock & 

 

11 U.S Department of Commerce, U.S. Census Bureau, 2007 Economic Census. 12 Data on the employment size of establishments is not yet available in the 2007 Economic Census.
7 

florists’ supplies wholesalers were considered small and nearly 98 percent of farm supply (seed) 

wholesalers were considered small. 

Entities conducting research and experimental development on plants and plant products 

may also be affected by the proposed rule and are part of NAICS sector 541712, research and 

development in the physical, engineering, and life sciences. In 2002, entities in this sector had 

an average of $6 million in revenues.13 A business concern primarily engaged in research is 

considered small by the SBA if it employs no more than 500 persons. Firms involved in research 

and development in the life sciences comprise NAICS sector 5417102. About 98 percent of 

these firms were considered small in 2002. 

 Research and experimental development also occurs at educational institutions and they 

may also be affected by the proposed definitions. Elementary and secondary schools, junior 

colleges, Colleges and universities are considered small if they have annual revenues of $6.5 

million or less. We do not currently have enough information to determine the number of 

elementary and secondary schools that would be considered small. However, in 2001-02, the 

average elementary/secondary school had annual revenues of about $4.4 million. Therefore, the 

average school would be considered small. According to data from the Department of 

Education, about 20 percent of colleges and universities were considered small in 1996. 

Zoos and museums also import plants and plant products. Zoos and botanical gardens are 

classified in NAICS sector 712130. In 2002, zoos and botanical gardens exempt from Federal 

income tax had average revenues of $4.7 million, while those institutions subject to Federal 

income tax had average revenues of $1.6 million. Museums are classified in NAICS sector 

712110. In 2002, museums exempt from Federal income tax had average revenues of $1.5 

 

13 Data from the 2007 Economic Census is not yet available for some categories.
8 

million, while those museums subject to Federal income tax had average revenues of $1.2 

million. Museums and zoos are considered small if they have annual revenues of $6.5 million or 

less. Between 94 and 97 percent of museums and between 83 and 90 percent of zoos and 

botanical gardens were considered small in 2002.14

From the above it is clear that the vast majority of potentially affected entities would be 

considered small. To the extent that the proposed rule defines which products are exempted 

from the provisions of the Act, it would benefit U.S. importers, large and small.15 By defining 

the terms “common food crop” and “common cultivar,” the proposed rule facilitates importer 

compliance with the Act’s requirements. 

We invite public comment on the proposed rule - including any comment on the expected 

impacts for small entities, and on how the proposed rule could be modified to reduce any costs or 

burdens for small entities consistent with the Act. Any comment suggesting changes to the 

proposed definitions should be supported by a science-based explanation of why the changes 

should be considered. 

Projected Reporting, Recordkeeping, and Other Compliance 

Requirements 

The proposed rule contains, under the heading “Paperwork Reduction Act,” a description 

of the information collection and recordkeeping requirements associated with the proposed rule. 

 

14 Ibid.

15 Enforcement of the declaration requirements is being phased in utilizing categories from the Harmonized Tariff 

Schedule of the United States. Only some product categories are currently being enforced. Therefore, some 

products that are not exempted under the Act can currently enter the United States without a declaration. 

Conversely, a small number of declarations are currently being filed for commodities that are either common 

cultivars or common food crops under the proposed definitions. 
9 

Duplication, Overlap, or Conflict with Existing Rules and Regulations 

APHIS has not identified any duplication, overlap, or conflict of the proposed rule with 

other Federal rules. 

Alternatives to Minimize Significant Economic Impacts of the Rule 

 “Common cultivar” and “common food crop” are defined in this proposed rule to ensure 

that the exemptions do not place at risk plants of conservation concern. The definitions are also 

consistent with the terms’ existing and commonly understood definitions. Since the terms were 

already included in the statute prior to the proposed rulemaking, there should be no instances in 

which an importer would be required because of this rule to make declarations for commodities 

that are not now being declared. In other words, the definitions presented in this rule and the 

related exemptions should not result in additional costs for importers based on their current 

activities. On the other hand, APHIS has estimated that about 5 percent of declarations being 

made under the current stage of phased in enforcement of the Act are either for common 

cultivars or common food crops that would be exempted under the proposed definitions. The 

costs incurred in making these declarations are a measure of the expected benefits of the rule. In 

the absence of significant economic impacts that would harm importers, we have not identified 

alternatives that would minimize such impacts.