United States: The US Department Of Agriculture Announces Upcoming Rulemakings Relating To Its Enforcement Of The Lacey Act

US importers of wood and wood products are required to comply with the requirements of the Lacey Act,1 which prohibits trade in plants that have been illegally taken, possessed, transported, or sold. This 100-year-old statute, which originally applied only to wildlife and fish, was amended in 2008 to include plants and thus wood and wood products.2

As the 2008 Lacey Act plant provisions reach their tenth anniversary, one persistent issue in the US Government's enforcement of the provisions, including its policing of import declarations, has been how importers are required to report to the US Department of Agriculture (USDA) on products that contain a minimal (de minimis) amount of plant material (such as clothing with wooden buttons) or composite plant products (such as medium density fiberboard).

USDA has added two items to its Spring 2018 regulatory agenda to address these issues, both of which are of substantial interest to the US wood products importing community. USDA has announced its plan to solicit public comment in the coming weeks on aspects of the Lacey Act declaration requirement for composite plant materials.3 Interested parties will have an opportunity during the public comment period to express views and potentially influence agency policy regarding the importation of composite products. USDA has also announced its plan to propose an exception to the declaration requirement for products that contain a de minimis amount of plant material.4 Interested parties will be able to submit comments on the merits of a possible de minimis exception during a public comment period following the proposal's publication, including raising any concerns about the proposal. USDA has not yet announced an expected date of commencement for these actions.

The draft regulations could have significant implications for the imported wood products industry because while the regulations may clarify the applicability and scope of the declaration requirement, they may be drafted in ways that would change and potentially increase the regulatory burden for importers of composite material.

As background, the Lacey Act requires all importers to submit a declaration—called the Plant and Plant Product Declaration Form (PPQ 505)—for all plants and plant products brought into the United States. On a PPQ 505, an importer must list (among other information) the genus, species, and country of harvest of all plants and plant products in the particular shipment. After enforcement of this requirement began in 2009, USDA received numerous questions from the public on its enforcement of the requirement with respect to composite materials and materials containing a small amount of plant material.

In 2011, USDA issued an advance notice of proposed rulemaking identifying these particular enforcement issues and soliciting public comment on its regulatory options for addressing the issues. USDA observed in the notice that applying the declaration requirement to products containing only a minimal amount of non-protected plant materials could unduly burden commerce. USDA also noted that identifying all of the plant material in a composite plant product by genus and species may be extremely difficult or prohibitively expensive for many importers. USDA therefore solicited public comment on possible approaches to (i) incorporating a de minimis exception, such that if a small percentage of an imported product contains wood or wood products a PPQ 505 Declaration is not necessary, and (ii) more directly addressing the issue of composite products such as medium-density fiberboard. A number of US wood importers commented in response to USDA's notice.

In response to the public discussion around its 2011 notice, USDA issued guidance in 2012 carving out an exception to the declaration requirement for certain plant products, including composite products.5 The guidance document provides that importers of composite products are not required to identify the genus and species of all plants in their products; instead, they may list the product's genus/species as "special/composite" and list all known countries of harvest. This "special use" exception to the declaration requirement significantly reduces the burden of reporting for composite product importers. To date, USDA has not released any guidance or other policy statements creating an exception for products containing a de minimis amount of plant material.

USDA solicited further public comment on possible exceptions to the declaration requirements in 2015.6 In the 2015 notice, USDA acknowledged earlier commenters' requests for de minimis and composite product exceptions to the declaration requirement and announced its intent to propose such exceptions. The upcoming agency actions follow through on this 2015 statement of intention and will provide an opportunity for wood importers to get on the record on these important issues.

*Margaret Girard contributed to this Advisory. Ms. Girard is a graduate of Columbia Law School and is employed at Arnold & Porter's Washington, DC. office. Ms. Girard is not admitted to the practice of law in Washington, DC.


1 The Lacey Act of 1900, 16 U.S.C. §§ 3371–3378.

2 See Food, Conservation, and Energy Act of 2008, Pub. L. No. 110–234, § 8204, 122 Stat. 923, 1291–1294 (May 22, 2008).

3 U.S. Dep't of Agriculture, Lacey Act Implementation Plan: Composite Plant Materials, Unified Agenda of Regulatory and Deregulatory Actions (Spring 2018).

4 U.S. Dep't of Agriculture, Lacey Act Implementation Plan: De Minimis Exception, Unified Agenda of Regulatory and Deregulatory Actions (Spring 2018).

5 U.S. Dep't of Agriculture, Plant and Plant Product Declaration: Special Use Designations (Sept. 9. 2012).

6 Implementation of Revised Lacey Act Provisions, 80 Fed. Reg. 6681 (Feb. 6, 2016)

The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.

To print this article, all you need is to be registered on Mondaq.com.

Click to Login as an existing user or Register so you can print this article.

In association with
Related Topics
Related Articles
Up-coming Events Search
Font Size:
Mondaq on Twitter
Mondaq Sign Up
Gain free access to lawyers expertise from more than 250 countries.
Email Address
Company Name
Confirm Password
Mondaq Newsalert
Select Topics
Select Regions
Registration (you must scroll down to set your data preferences)

Mondaq Ltd requires you to register and provide information that personally identifies you, including your content preferences, for three primary purposes (full details of Mondaq’s use of your personal data can be found in our Privacy and Cookies Notice):

  • To allow you to personalize the Mondaq websites you are visiting to show content ("Content") relevant to your interests.
  • To enable features such as password reminder, news alerts, email a colleague, and linking from Mondaq (and its affiliate sites) to your website.
  • To produce demographic feedback for our content providers ("Contributors") who contribute Content for free for your use.

Mondaq hopes that our registered users will support us in maintaining our free to view business model by consenting to our use of your personal data as described below.

Mondaq has a "free to view" business model. Our services are paid for by Contributors in exchange for Mondaq providing them with access to information about who accesses their content. Once personal data is transferred to our Contributors they become a data controller of this personal data. They use it to measure the response that their articles are receiving, as a form of market research. They may also use it to provide Mondaq users with information about their products and services.

Details of each Contributor to which your personal data will be transferred is clearly stated within the Content that you access. For full details of how this Contributor will use your personal data, you should review the Contributor’s own Privacy Notice.

Please indicate your preference below:

Yes, I am happy to support Mondaq in maintaining its free to view business model by agreeing to allow Mondaq to share my personal data with Contributors whose Content I access
No, I do not want Mondaq to share my personal data with Contributors

Also please let us know whether you are happy to receive communications promoting products and services offered by Mondaq:

Yes, I am happy to received promotional communications from Mondaq
No, please do not send me promotional communications from Mondaq
Terms & Conditions

Mondaq.com (the Website) is owned and managed by Mondaq Ltd (Mondaq). Mondaq grants you a non-exclusive, revocable licence to access the Website and associated services, such as the Mondaq News Alerts (Services), subject to and in consideration of your compliance with the following terms and conditions of use (Terms). Your use of the Website and/or Services constitutes your agreement to the Terms. Mondaq may terminate your use of the Website and Services if you are in breach of these Terms or if Mondaq decides to terminate the licence granted hereunder for any reason whatsoever.

Use of www.mondaq.com

To Use Mondaq.com you must be: eighteen (18) years old or over; legally capable of entering into binding contracts; and not in any way prohibited by the applicable law to enter into these Terms in the jurisdiction which you are currently located.

You may use the Website as an unregistered user, however, you are required to register as a user if you wish to read the full text of the Content or to receive the Services.

You may not modify, publish, transmit, transfer or sell, reproduce, create derivative works from, distribute, perform, link, display, or in any way exploit any of the Content, in whole or in part, except as expressly permitted in these Terms or with the prior written consent of Mondaq. You may not use electronic or other means to extract details or information from the Content. Nor shall you extract information about users or Contributors in order to offer them any services or products.

In your use of the Website and/or Services you shall: comply with all applicable laws, regulations, directives and legislations which apply to your Use of the Website and/or Services in whatever country you are physically located including without limitation any and all consumer law, export control laws and regulations; provide to us true, correct and accurate information and promptly inform us in the event that any information that you have provided to us changes or becomes inaccurate; notify Mondaq immediately of any circumstances where you have reason to believe that any Intellectual Property Rights or any other rights of any third party may have been infringed; co-operate with reasonable security or other checks or requests for information made by Mondaq from time to time; and at all times be fully liable for the breach of any of these Terms by a third party using your login details to access the Website and/or Services

however, you shall not: do anything likely to impair, interfere with or damage or cause harm or distress to any persons, or the network; do anything that will infringe any Intellectual Property Rights or other rights of Mondaq or any third party; or use the Website, Services and/or Content otherwise than in accordance with these Terms; use any trade marks or service marks of Mondaq or the Contributors, or do anything which may be seen to take unfair advantage of the reputation and goodwill of Mondaq or the Contributors, or the Website, Services and/or Content.

Mondaq reserves the right, in its sole discretion, to take any action that it deems necessary and appropriate in the event it considers that there is a breach or threatened breach of the Terms.

Mondaq’s Rights and Obligations

Unless otherwise expressly set out to the contrary, nothing in these Terms shall serve to transfer from Mondaq to you, any Intellectual Property Rights owned by and/or licensed to Mondaq and all rights, title and interest in and to such Intellectual Property Rights will remain exclusively with Mondaq and/or its licensors.

Mondaq shall use its reasonable endeavours to make the Website and Services available to you at all times, but we cannot guarantee an uninterrupted and fault free service.

Mondaq reserves the right to make changes to the services and/or the Website or part thereof, from time to time, and we may add, remove, modify and/or vary any elements of features and functionalities of the Website or the services.

Mondaq also reserves the right from time to time to monitor your Use of the Website and/or services.


The Content is general information only. It is not intended to constitute legal advice or seek to be the complete and comprehensive statement of the law, nor is it intended to address your specific requirements or provide advice on which reliance should be placed. Mondaq and/or its Contributors and other suppliers make no representations about the suitability of the information contained in the Content for any purpose. All Content provided "as is" without warranty of any kind. Mondaq and/or its Contributors and other suppliers hereby exclude and disclaim all representations, warranties or guarantees with regard to the Content, including all implied warranties and conditions of merchantability, fitness for a particular purpose, title and non-infringement. To the maximum extent permitted by law, Mondaq expressly excludes all representations, warranties, obligations, and liabilities arising out of or in connection with all Content. In no event shall Mondaq and/or its respective suppliers be liable for any special, indirect or consequential damages or any damages whatsoever resulting from loss of use, data or profits, whether in an action of contract, negligence or other tortious action, arising out of or in connection with the use of the Content or performance of Mondaq’s Services.


Mondaq may alter or amend these Terms by amending them on the Website. By continuing to Use the Services and/or the Website after such amendment, you will be deemed to have accepted any amendment to these Terms.

These Terms shall be governed by and construed in accordance with the laws of England and Wales and you irrevocably submit to the exclusive jurisdiction of the courts of England and Wales to settle any dispute which may arise out of or in connection with these Terms. If you live outside the United Kingdom, English law shall apply only to the extent that English law shall not deprive you of any legal protection accorded in accordance with the law of the place where you are habitually resident ("Local Law"). In the event English law deprives you of any legal protection which is accorded to you under Local Law, then these terms shall be governed by Local Law and any dispute or claim arising out of or in connection with these Terms shall be subject to the non-exclusive jurisdiction of the courts where you are habitually resident.

You may print and keep a copy of these Terms, which form the entire agreement between you and Mondaq and supersede any other communications or advertising in respect of the Service and/or the Website.

No delay in exercising or non-exercise by you and/or Mondaq of any of its rights under or in connection with these Terms shall operate as a waiver or release of each of your or Mondaq’s right. Rather, any such waiver or release must be specifically granted in writing signed by the party granting it.

If any part of these Terms is held unenforceable, that part shall be enforced to the maximum extent permissible so as to give effect to the intent of the parties, and the Terms shall continue in full force and effect.

Mondaq shall not incur any liability to you on account of any loss or damage resulting from any delay or failure to perform all or any part of these Terms if such delay or failure is caused, in whole or in part, by events, occurrences, or causes beyond the control of Mondaq. Such events, occurrences or causes will include, without limitation, acts of God, strikes, lockouts, server and network failure, riots, acts of war, earthquakes, fire and explosions.

By clicking Register you state you have read and agree to our Terms and Conditions