Issue 2: December 22, 2011
The Lacey Act is an important tool in the fight against illegal logging practices and forest degradation. But when Congress expanded Lacey in 2008 to cover plants and wood and the products made from them, they used ambiguous language that exposed American businesses—and American consumers—to some potentially devastating unintended consequences.
Under the changes made to the Lacey Act in 2008, anyone importing, selling or transporting covered products without the proper documentation is exposed to criminal or civil liability and product forfeiture. And the punishment for even unknowingly violating the Lacey Act is quite severe: fines of up to $100,000 and up to a year in jail.
In the four years since Lacey was amended, millions of Americans have been possibly breaking the law every day simply by buying common products containing wood and plant components. It’s difficult to imagine the scope of products that the Lacey Amendment covers (as currently worded), from the obvious—musical instruments, furniture, antiques—to the not-so-obvious—rubber tires, clothing containing rayon, cars with wood trimmed interiors.
And there is no statute of limitations—as currently written, Lacey applies to any product containing wood or plant products going back to the dawn of civilization. Since the vast majority of antiques were made long before documentation was required, a significant unintended consequence of the Lacey Amendments is that it is literally impossible for most antique dealers to comply with the law. Clearly, this is not what Congress had in mind.
There is a solution. A simple adjustment to the language of the 2008 Lacey Amendments can eliminate the unintended consequences, while strengthening the integrity and effectiveness of the law.
They said it
“Though federal agencies have issued statements clarifying that individual musicians will not be the subject of enforcement, the underlying law must be changed to guarantee relief from potential unintended consequences of the Lacey Act.”
League of American Orchestras
“[I]t is unrealistic to expect an importer of a highly processed product, whether it`s a rayon dress or an electronic gadget with a rubber gasket, to know the genealogy of some remote plant ingredient that was part of the earliest stage of multi-country manufacturing.``
Brenda Jacobs, attorney for the United States Association of Importers of Textiles and Apparel.
Too Crazy to Be True?
“In a November 2010 article, the World Resources Institute (WRI) reported on a study looking at whether a variety of consumer paper products contained any violations. Fiber testing was used to look at 32 different imported paper products, from stationary to tissue paper to books. …
The WRI report said that ‘all three of these books potentially violate the 2008 amendment to the U.S. Lacey Act … All actors in the supply chain, including importers, publishers, and retailers can be liable under Lacey. Penalties can include forfeiture of goods and fines of up to $500,000 and jail time.’"
Source: Pulp & Paper International
Questions IWPA has received from the media (and how we answered them)
Can you give me an example of the unintended consequences of the Lacey Amendments?
Let’s start with just two.
1) The Declaration Problem
The 2008 Lacey Amendments require U.S. imports containing wood or plant material to be accompanied by an import declaration form that contains the scientific name of the plant, the value of the importation, the quantity of the plant, and the name of the country from which the plant was taken—a bureaucratic burden that had never before been required in Lacey’s 108-year history.
The unintended consequence: APHIS has targeted a few HTS codes (for reasons apparently un-connected with potential Lacey Act violations). However, even the limited application of this declaration requirement has clogged the documentation system. By APHIS’ (Animal and Plant Health Inspection Service) own calculation, they are receiving more than 9,200 declarations per week with a cost to government and industry of more than $56 million a year. And we believe costs could be even higher.
2) The Innocent American Problem
Prior to the 2008 Lacey Amendments, any products found in violation of a Lacey Act provision were deemed “contraband” and as such, under the Civil Asset Forfeiture Reform Act (CAFRA), were subject to seizure with no legal recourse for the innocent owner to recover the seized product. Congress specifically addressed this issue with the 2008 Amendment for plant and plant products found to be in violation, but Department of Justice continues to assert that innocent companies that have exercised due care, but somehow fall afoul of some provision of Lacey, still lose all legal standing to challenge the seizure in court.
Unintended consequences: Any business or individual that exercises due care and has no knowledge that the seized products violated some provision of the Lacey Act has no chance of getting the seized product back nor any legal recourse to challenge a seizure under the Lacey Act.
But the federal government is not going after individuals, are they?
At the moment, they are targeting individual companies of selected industries.But in their own FAQ, APHIS clearly suggests that efforts to target individuals is clearly not out of the question, as the following passage, taken from the USDA website would indicate:
12. Does the declaration requirement apply to all types of entries?
“At present, we will be enforcing the declaration requirement for formal entries (i.e., most commercial shipments). At this time, we are not enforcing the declaration requirement for informal entries (i.e., most personal shipments … (emphasis added).”
What Next? What do we need from you?
The effort to improve the Lacey Act is going to be a long one, and in time we will need your active support and participation in conjunction with our outreach to Members of Congress. Until then, please use this publication to inform your customers and your suppliers. Refer to our iwpawood.org for updates, and send anyone our way who wants to know more about our actions to protect the integrity and improve the functioning of Lacey. As always, your thoughts and comments are welcome and appreciated. And your continued support is greatly appreciated.
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