Declaration Requirement Basics
When did the amendments to the Lacey Act go into effect?
The Lacey Act amendments included in the 2008 Farm Bill were effective as of May 22, 2008. As a practical matter, this means that enforcement actions may be taken for any violations committed on or after that date. Note, however, that the requirement to provide a declaration under the amended Act did not become effective until December 15, 2008 (180 days from the date of enactment).
What is considered a “plant” under the Lacey Act?
Under the Lacey Act, as amended, ‘‘Plant’’ means: ‘‘Any wild member of the plant kingdom, including roots, seeds, parts or product thereof, and including trees from either natural or planted forest stands.” There are some exclusions. Common cultivars (except trees) and common food crops are excluded from the definition of plant. In addition, a scientific specimen of plant genetic material that is to be used only for laboratory or field research and any plant that is to remain planted or to be planted or replanted is also excluded from the definition of plant, unless the plant is listed under the Endangered Species Act or a similar State law, or is listed in an appendix to the Convention on International Trade in Endangered Species of Wild Fauna and Flora (CITES, www.cites.org).
What is considered “due care” with respect to the declaration requirement of the Lacey Act?
The declaration requirement is not subject to the “due care” penalty provisions under the Lacey Act. Civil and criminal penalties apply only to any person who knowingly violates the declaration requirements. However, any person who violates the declaration requirement, knowingly or unknowingly, may be assessed a civil administrative penalty of $250. Furthermore, any plant or plant product imported in violation of the import declaration requirements may be subject to seizure and forfeiture.
Where can I find a list of plants prohibited under the Lacey Act?
There is no list, because the Lacey Act applies to all plants, as defined in the statute. Illegal plants are those that are taken, harvested, possessed, transported, sold, or exported in violation of an underlying law in any foreign country or the US.
What is APHIS?
APHIS is the Animal Plant Health Inspection Service of the United States Department of Agriculture (USDA). APHIS is the lead implementing agency for the Lacey Act Amendments of 2008. APHIS is responsible for processing the information that importers declare. The Animal and Plant Health Inspection Service is a multi-faceted Agency with a broad mission area that includes protecting and promoting U.S. agricultural health, regulating genetically engineered organisms, administering the Animal Welfare Act and carrying out wildlife damage management activities. These efforts support the overall mission of USDA, which is to protect and promote food, agriculture, natural resources and related issues.
What is Custom’s role in the Lacey Act?
Customs and Border Protection (CBP) operates under the US Department of Homeland Security (DHS). CBP is responsible for enforcement of the Lacey Act at the border including, but not limited to, inspecting shipments and checking that declaration data has been submitted either in paper form or via the Automated Broker Interface (ABI), which it then sends directly to APHIS. Customs Agents are stationed in every port in the US. .
What is CITES?
The Convention on International Trade in Endangered Species of Wild Fauna and Flora (CITES) is an international agreement between governments. Its aim is to ensure that international trade in specimens of wild animals and plants does not threaten their survival. CITES was drafted as a result of a resolution adopted in 1963 at a meeting of members of the International Union for Conservation of Nature and Natural Resources (IUCN). CITES entered into force on July 1, 1975. For more information, including which plants are CITES protected, visit www.cites.org.
How soon can we expect enforcement actions based on this new authority? Are there cases currently under investigation?
The new Lacey Act provisions are applicable to activities occurring on or after May 22, 2008. Public enforcement actions can be anticipated if and when there is legally sufficient evidence of a violation that was committed on or after that date. For example, on June 9, 2009, agents of the U.S. Fish & Wildlife Service in Tampa, Florida seized three pallets of wood valued at $7,150 as they entered the Port of Tampa, Florida from Iquitos, Peru. The shipment contained some thirteen species of tropical wood, including tigrillo (Swartzia arborescens), palisangre (Brosimum rubescens), and tigre caspi (Zygia cataractae). Agents confiscated the wood on grounds that the shipment violated the declaration requirement of the Lacey Act. Specifically, the agents confiscated the wood upon discovering that it had been misdeclared as a "finished wood product" under HTS code 4421. In addition, the Solicitor felt that the importer could have taken additional steps in order to fully exercise ‘due care’ under the Lacey Act. The claimant used an import brokerage firm in order to complete the shipment of the tropical hardwood from Peru, which is not uncommon for filing Lacey Act declarations. As the importer did not take all necessary steps to ensure that the products were properly declared, the Office of the Solicitor upheld the forfeiture. The Solicitor suspected that the broker used the wrong code in order to avoid the more rigorous requirement to declare species and origin under HTS 4407, which has not yet been phased in for HTS 4421.
Will additional resources be made available for enforcement? Will additional investigators and prosecutors be hired?
As of Summer 2011, Congress has not allocated any specific funds for the hiring of additional investigators or prosecutors to enforce the new provisions. Existing enforcement resources already are committed to enforcing the Lacey Act and will enforce the new provisions as well. Enforcement resources are regularly reassessed and reallocated to ensure their best use.
Will there be an “enforcement plan?” Will specific countries/products be targeted?
No. Illegal logging occurs all over the globe to varying degrees of severity. There will not be an “enforcement plan” with respect to the new provisions of the Lacey Act. In most enforcement work, if information is developed indicating a high likelihood of violations of a particular type, enforcement resources will likely focus on those types of activities.
What sources and/or types of information will be used to take enforcement actions? Will enforcement be based on information provided by the public?
As with other statutes, federal investigators and prosecutors make use of reliable information from a variety of sources in investigation and enforcement of the Lacey Act, including but not limited to information provided by members of the public such as NGOs, companies and individuals.