United States 

Department of 

Agriculture 

Animal and 

Plant Health 

Inspection 

Service 

May 2012 

Regulatory Impact Analysis and 

Final Regulatory Flexibility Analysis 

Final Rule 

APHIS 2009-0018 

RIN 0579-AD11 

Lacey Act Implementation, Definitions for 

Exempt and Regulated Articles 

Policy & Program Development 

Policy Analysis & Development
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 

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

exclusions 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 rule provides these 

definitions. 

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

exclusions 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 will 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 exclusions will not result in 

additional costs for importers based on their current activities. On the other hand, 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 declaration requirement of the Act are either for common cultivars or common food crops 

that will be excluded under the definitions in this rule. 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 will be between $1 million and $3 million. 

Implementation of the declaration requirement for all plants, including common food crops and 
ii 

common cultivars, will cover far more product categories than those that currently require a 

declaration. 

To the extent that the rule defines which products are excluded from the provisions of the 

Act, it will benefit U.S. importers, large and small. By defining the terms “common cultivar” 

and “common food crop,” the rule will facilitate importer understanding of and compliance with 

the Act’s requirements. 
iii 

Table of Contents

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

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

Overview of the Action and affected Entities ..................................................................... 2

Expected Benefits and Costs of the Rule ............................................................................ 3

Final Regulatory Flexibility Analysis ................................................................................. 5

Need for and Objectives of the Rule ............................................................................... 6

Significant Issues raised by Public Comment in response to the Initial Regulatory 

Flexibility Analysis ........................................................................................................ 6

Comments filed by the Small Business Administration in response to the Proposed 

Rule ................................................................................................................................ 7

Potentially Affected Small Entities ................................................................................. 7

Projected Reporting, Recordkeeping, and Other Compliance Requirements ................. 9

Steps taken by APHIS to minimize Significant Economic Impacts on Small Entities 10
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 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.1 Common cultivars and common food crops are among the categorical exclusions 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 establishing definitions for the 

terms “common cultivar” and “common food crop.” 2 These definitions will specify which 

plants and plant products are subject to the provisions of the Act, including the declaration 

requirement. 

 

1

 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.

2 The definitions are as follows: 

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

(a) Has been developed through artificial selection for specific morphological or physiological characteristics; and 

(b) Is a species or hybrid, or a selection thereof, that is produced 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) Is raised, grown, or cultivated for human or animal consumption; and (b) Is a species or hybrid, or a selection 

thereof, that is produced 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 

This economic analysis provides a cost-benefit analysis, as required by Executive Orders 

12866 and 13563, which direct agencies to assess all costs and benefits of available regulatory 

alternatives and, if regulation is necessary, to select regulatory approaches that maximize net 

benefits (including potential economic, environmental, public health and safety effects, and 

equity). Executive Order 13563 emphasizes the importance of quantifying both costs and 

benefits, of reducing costs, of harmonizing rules, and of promoting flexibility. The economic 

analysis also examines the potential economic effects of this rule on small entities, as required by 

the Regulatory Flexibility Act. 

Overview of the Action and affected Entities 

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 

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

exclusions 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 rule provides these 

definitions. 

Plants and plant products 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 pharmaceuticals, contain plant products and are 

also covered under the Act. Without the exclusions for common food crops and common 

cultivars, commodities such as fruits, vegetables, nursery stock, and cotton clothing would all be 

covered under the Act. Therefore, the importers potentially affected by the rule represent a 
3 

broad cross-section of U.S. businesses, government and university research institutions, nonprofit operations, and individuals. 

Expected 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 excluded 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.3

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

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

analysis.4 Our analysis is of the expected benefits and costs of the definitions of “common 

cultivar” and “common food crop” in this rule. 

To the extent that the rule defines which products are excluded from the provisions of the 

Act, it will benefit U.S. importers. By defining “common cultivar” and “common food crop,” 

the rule will facilitate importer understanding of and compliance with the Act’s requirements. 

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 

 

3

 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. 

4

 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. 
4 

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.5

 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 will be excluded based on the definitions in 

this rule may currently be filing declarations upon entry of their products into the United States. 

Importers of those products will benefit from this rule. 

Under the current stage of enforcement of the Lacey Act, 10,000 declarations per week 

are filed on average. It is estimated that about 5 percent of these declarations are filed for 

commodities that are either common cultivars or common food crops under the definitions in this 

rule. 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 fees charged by for electronic declaration 

submissions. In addition, there are government costs for processing those declarations. We 

estimate the total annual cost savings will be between $1 million and $3 million. These 

estimated cost savings are based on 26,0006

 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 

 

5

 Enforcement of the declaration requirement began on April 1, 2009, 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. Enforcement began on Oct. 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 April 1, 2010, 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. 6

 Five percent of 10,000 total declarations per week over an entire year. 
5 

declaration,7

 postage costs of $0.45 per paper declaration, broker fees of between $10 and $30 

per electronic declaration,8

 and hourly salary and benefits costs associated with the government 

processing of the declarations.9 

Implementation of the declaration requirement for all plants, including common food 

crops and common cultivars, would cover far more product categories than those that currently 

require a declaration. 

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 will 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 

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

Final 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. This final regulatory flexibility analysis describes expected impacts of this rule on 

small entities, as required by section 604 of the Act. 

 

7

 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 $21.07 and $58.75. Bureau of Labor Statistics, May 2011 

National Occupational Employment and Wage Estimates. 

8

 Based on various industry sources for brokerage service fees. 

9

 Based on GS-4 step 1 salary and benefits. It takes an average of 12 minutes to enter a declaration received through 

the mail into the database and check for errors. It takes about 5 minutes to merge the approximately 8000 weekly 

electronic declarations into the database. This does not include any analysis or compliance checks that would occur 

at a higher grade. 
6 

Need for and Objectives of the Rule 

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 

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

exclusions 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 

rule is intended to provide these definitions. 

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

conservation concern, while excluding 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. 

Significant Issues raised by Public Comment in response to the Initial 

Regulatory Flexibility Analysis 

No significant issues were raised concerning the Initial Regulatory Flexibility Analysis 

during the public comment period for the proposed rule. 
7 

Comments filed by the Small Business Administration in response to 

the Proposed Rule 

 There were no comments filed by the Small Business Administration in response to the 

proposed rule. 

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 pharmaceuticals, contain plant products and are also covered 

under the Act. Therefore, the importers potentially affected by the rule represent a broad crosssection 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 Industry 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 
8 

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.10 

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.11 About 95 percent of fruit and vegetable wholesalers and packaged 

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

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 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.12 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 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 have enough information to determine the number of elementary and secondary 

 

10 U.S Department of Commerce, U.S. Census Bureau, 2007 Economic Census. 11 Data on the employment size of establishments is not yet available in the 2007 Economic Census. 12 Data from the 2007 Economic Census is not yet available for some categories.
9 

schools that 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 

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 2002.13

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

considered small. To the extent that the rule defines which products are excluded from the 

provisions of the Act, it will benefit U.S. importers, large and small.14 By defining the terms 

“common food crop” and “common cultivar,” the rule facilitates importer compliance with the 

Act’s requirements. 

Projected Reporting, Recordkeeping, and Other Compliance 

Requirements 

This rule contains no new information collection or recordkeeping requirements under 

the Paperwork Reduction Act of 1995 (44 U.S.C. 3501 et seq.). 

 

13 Ibid.

14 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 definitions in this rule. 
10 

Steps taken by APHIS to minimize Significant Economic Impacts on 

Small Entities 

Based on our review of available information, APHIS does not expect the rule to have a 

significant economic impact on small entities. In the absence of significant economic impacts, 

we have not identified alternatives that would minimize such impacts.