Update on Lacey Act Declaration: Primer, PPQ 505, Blankets, Etc.

Lacey Act Primer

APHIS has issued an October 2009 version of its Lacey Act Primer. Among other things, the revised primer adds additional information on (1) the Lacey Act Amendments declaration requirements; (2) misdemeanor prosecutions under the Lacey Act as amended (Lacey Act), and how to avoid them by taking due care; and (3) best practices.

Excerpts from the updated primer include:

Lacey Act Amendments

The purpose of the Lacey Act Amendments is to prevent trade in illegally harvested wild members of the plant kingdom, including roots, seeds, parts or products thereof, and including trees from either natural or planted forest stands. Enforcement is expected to focus on preventing trade in illegally harvested lumber and in wood products made from illegally harvested lumber.

Currently only certain tariff numbers in HTS Chapters 44, 66, 82, 92, 93, 94, 95, and 97 are scheduled to require a Lacey Act declaration. Exemptions from this requirement include (1) plants and plant products used exclusively as packing material to support, protect to carry another item (e.g. instruction manuals, labels, pallets, crating, etc.); (2) common cultivars (except trees) and common food crops (to be defined by APHIS and the Fish and Wildlife Service (FWS) in a joint rulemaking); and (3) plants for planting.

Even if a shipment is exempt from the declaration requirements, the Lacey Act is still in force. For example, bagpipes with wooden pipes do not require a declaration, but the Lacey Act still applies to the wooden pipes. If the wooden pipes were made from illegally harvested trees, then the bagpipes shipment is in violation of the Lacey Act.

How "Due Care" Can Avoid Misdemeanor Prosecution Under Lacey Act

Prosecutions for misdemeanor violations of the Lacey Act can result in up to 1 year in prison and up to $100,000 in fines ($200,000 for corporations). Only substantive violations will be prosecuted, not violations of the PPQ 505 Lacey Act declaration requirements.

Misdemeanors can result from a lack of due care¹. "Due care" requires that a person facing a particular set of circumstances undertakes certain steps which a reasonable man would take to do his best to insure that he is not violating the law.

Due care is applied differently to different categories of persons. For example, zoo keepers, as professionals are expected to know that a reptile is Australian and that Australia does not allow export of those reptiles without special permits. On the other hand, the airline company that transports the reptile, while not expected to know about the special permits, would be expected to stop the shipment if notified of the problem.

Tools to demonstrate the exercise of due care include 1) asking questions, 2) compliance plans, 3) industry standards, 4) records of efforts, and 5) changes in the above in response to practical experiences.

Common-sense red flags to look for in the exercise of due care include 1) goods significantly below going market rate; 2) cash only/lower price for goods without paperwork; 3) paperwork facially invalid or otherwise suspect; 4) unusual sales methods or practices; 5) transactions fit the description of illegal transactions discussed in trade/industry publications; 6) inability of suppliers to provide rational answers to routine questions.

Person Charged with Violating Lacey Act Does Not Have to Commit the Underlying Violation

The underlying violation need not be committed by the person charged with violating the Lacey Act - a third party might have taken the product illegally. In addition, an underlying foreign law violation does not have to be a criminal violation, nor one actively enforced in the foreign country.

Suggested Best Practices

The Lacey Act requires that importers make sure their shipments were obtained legally, and the shipments' documentation and records are true and accurate. Importers must also ensure that their shipments are properly declared under the Lacey Act declaration requirement.

APHIS suggests the following as Best Practices:

Ask your overseas supplier for Genus/species

Check botanical resources (e.g. GRIN Taxonomy)

o Confirm validity of scientific names

o Confirm geographic distribution

Check with Foreign Ministers of Agriculture

o Confirm source companies operate legally (licensed/certified)

o Request pertinent wildlife protection laws (country of harvest)

Keep complete records of your efforts

When in doubt - Call APHIS

Sample Blanket Declaration Spreadsheet

APHIS has also updated its website to add a sample Excel blanket declaration reconciliation spreadsheet for the Blanket Declaration Pilot, which is only open to certain groups of importers that apply for the program (currently BRASS² and Automated Line Release (ALR) participants).

(Previously posted are an Excel blanket declaration reconciliation spreadsheet form and instructions for the trade community on the blanket declaration pilot.)

Applicant Phone Number for Declaration

APHIS expects to seek approval from the Office of Management and Budget to amend the PPQ Form 505 (Lacey Act declaration) to include the phone number of the applicant.

(APHIS has previously noted that the paper form that is available online should be checked to see whether it is updated.)

Instructions for Electronic Declarations

APHIS is interested in creating a set of instructions for customs brokers and others that electronically file their Lacey Act declarations using the Automated Broker Interface (ABI), as some are confused on how to file, even though the CATAIR has been amended for the electronic declaration.

(The Lacey Act (16 USC 3371 et seq.) combats trafficking in "illegal" wildlife, fish, or plants. The Food, Conservation, and Energy Act of 2008 amended the Lacey Act by making it unlawful to import, export, transport, sell, receive, acquire, or purchase in interstate or foreign commerce a broader range of plants, with some limited exceptions, taken or traded in violation of the laws of the U.S., a U.S. State, or other countries. It also made it unlawful to make or submit any false record, account or label for any false identification of, this broader group of plants covered by the Act. Finally, it introduced the requirement for an import declaration for plants entering the U.S. and provides for both civil and criminal penalties for failure to comply.)

¹ "Due care" does not play a role in the prosecution of felony violations, which result from "knowing violations;" penalties for felony convictions can result in up to 5 years in prison and up to $250,000 in fines ($500,000 for corporations).

²Border Release Advance Screening and Selectivity

(See ITT's Online Archives or 12/09/09 news, 09120910, for BP summary of APHIS guidance on HTS Chapter 44 articles containing composite/recycled/reused materials. See ITT's Online Archives or 11/05/09 news, 09110505, for BP summary on APHIS' analysis of declaration data and there was no target date for definitions of common food crops or common cultivars.

See ITT's Online Archives or 09/09/09 news, 09090910, for most recent BP summary on Lacey Act ALR/BRASS pilot. See ITT's Online Archives or 09/02/09 news, 09090205, for BP summary of APHIS' Revision to Phases III and IV of its enforcement phase-in for the Lacey Act Declaration. See ITT's Online Archives or 03/25/09 news, 09032515, for BP summary of update to PPQ 505 form.

APHIS Lacey Act web page available at http://www.aphis.usda.gov/plant_health/lacey_act/index.shtml