U.S. Department of Agriculture Liberalizes Implementation of the Lacey Act Amendments

International Enforcement Law Reporter
April 1, 2009
By Philip Mayer and Bruce Zagaris

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The enactment of amendments to the Lacey Act, which were included in the Food, Conservation, and Energy Act of 2008 (also known as the Farm Bill), became effective as of May 22, 2008. They give rise to potential proactive enforcement against violators participating in illegal timber trade. However, the sweeping amendments have also given rise to many questions. n4 As a result, the U.S. Department of Agriculture has announced liberalized rules to implement the amended law.

n4 For background see U.S. Government Rolls Out Implementation for World's First Ban on Trade in Illegally Logged Wood, Oct. 14, 2008 (http://news.findlaw.com/prnewswire/2008104/14oct20081804.html).

Enacted on May 22, 2008, the revision of the Lacey Act, a 100-year-old statute, bans commerce in illegally sourced plants and their products, including timber and wood products. The Act has long been one of the most powerful tools for the U.S. agencies fighting trade in endangered species. Environmental groups claim its potential to combat illegal logging remained untapped to date. The Act sets a groundbreaking precedent for the global trade in plants and plant products, acknowledging and supporting other countries' efforts to govern their own natural resources and putting in place powerful incentives for companies trading in these commodities to do the same. n5

n5 For background see Environmental Investigative Agency (EIA), The U.S. Lacey Act: Frequently Asked Questions About the World's First Ban on Trade in Illegal Wood (www.eia-global.org/lacey).

The Lacey Act amendments responded to the global problem of illegal logging, which costs developing countries an estimated $ 15 billion annually in lost revenue, contributes to the 20% of annual total greenhouse gas emissions caused by deforestation, and supports organized crime around the world. n6

n6 U.S. Government Rolls Out Implementation for World's First Ban on Trade in Illegally Logged Wood, supra.

The Lacey Act tries to address illegal logging and other illegal plant trade. It addresses three main components: (1) prohibits all trade in plant and plant products (e.g., furniture, paper, or lumber) that are illegally sourced from any U.S. state or any foreign country; (2) requires importers to declare the country of origin of harvest and species name of all plants contained in their products; and (3) establishes penalties for violation of the Act, including forfeiture of goods and vessels, fines, and jail time. n7

n7 EIA, supra.

Imports of certain plants and plant products must be accompanied by import declaration containing the scientific name of the plant, the value of the importation, the quantity of the plant and the name of the country from where the plant was harvested. The U.S. Customs and Border Protection (CBP) is now revising the Automated Commercial System to collect this information. CBP still expects to begin enforcement on April 1, 2009, at the latest. n8

n8 USDA Eases Lacey Act Declaration Requirement for Imported Goods, 16 WORLDTRADE/INTERACTIVE, Jan 23, 2009.

However due to public concern for the extensive nature and even the over breadth of the bill, the United States Department of Agriculture has announced that enforcement will be implemented in phases depending on the product. For example, from April through September 2009, fuel, wood, and tool handles will be among the products liable for inspection. Plywood, barrels, and particle board are representative of the products covered in Phase II beginning on October 1, 2009.

The USDA is requesting comments by March 24, 200, from the public regarding the classification of products within its scheduled phases, whether additional tariff chapters should be included in the schedule, and the enforcement of the declaration requirement with respect o products not listed in the schedule. n9

n9 Id.

The USDA has decided to require a declaration only for the product being imported and not for other miscellaneous goods that ordinarily accompany it, such as tags, labels, manuals, and warranty cards. n10

n10 Id.

The USDA has announced it will only enforce the declaration requirement for formal consumption entries, that is, most commercial shipments. It will not enforce the declaration requirement at present for informal entries, that is, most personal shipments, personal importations or mail (unless subject to formal entry), transportation and exportation entries, in-transit movements, carnet importations (i.e., merchandise or equipment that will be re-exported within a year), and foreign-trade zone and warehouse entries. n11

n11 Id.

The Lacey Act amendments of 2008 were heralded as a major victory for environmental advocates, but were also seen by many to pose an excessive burden on importers. The enforcement schedule shows that the CBP and USDA are cognizant of these concerns and are interested in working with the business and international trade community on finding reasonable enforcement procedures.

NOTICE: In accordance with Title 17 U.S.C. Section 107, this material is distributed without profit to those who have expressed a prior interest in receiving this information for research and educational purposes.

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