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.

Footnotes

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)

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