DOJ Says Lacey Act Amendments Enforcement Has Been Slow

Enforcement Slow Due to Phased-in Declaration, Complexity, Lack of Resources

While the prohibitions of the Lacey Act amendments have been in effect since May 22, 2008, enforcement actions have been slow to follow. Various factors contribute to this disparity, including the enforcement phase-in schedule for the declaration requirement, the complexity of the international investigations required to substantiate a substantive plant trafficking violation under the Lacey Act, and the scarcity of enforcement resources for these cases.

2 Cases so far Have Focused on Forfeiture of Wood for Improper Declaration, Etc.

To date, public enforcement actions have been undertaken only under the forfeiture provisions of the Lacey Act Amendments. These provisions involve the seizure and forfeiture of plants (specifically wood products) that were improperly declared upon import or were taken, possessed, transported, or sold in violation of some underlying foreign law as follows:

Tropical hardwood from Peru improperly declared. In United States v. Three Pallets of Tropical Hardwood of June 2010, the Department of the Interior denied a petition for remission filed by an importer seeking the return of a shipment of three pallets of tropical hardwood imported into Tampa, Florida from Peru. The pallets had been seized after information was received from a Peruvian business owner that the shipment was being made with stolen and forged documents. The shipment, valued at just over $7,000, was declared under tariff code 4421 that covers finished wood products such as clothes hangers, blinds, toothpicks, clothespins, and canoe paddles when the shipment actually contained raw sawn wood that should have been declared under tariff code 4407. Prior imports of this kind by this importer had used the proper tariff code of 4407, and the declaration requirement was being enforced at the time of the importation.

The denial of the petition for remission noted the history of use of correct tariff codes and the importer's lack of diligence in handling the transaction, including his failure to request the required information on genus and species, his failure to contact the Peruvian government to determine if he was dealing with a legitimate company, and his failure to follow up on information that indicated that the shipment was questionable. This last failure includes the fact that the importer was asked to make payment directly to an individual rather than the exporting company because the company had gone out of business.

Alleged noncompliance of ebony wood with Malagasy rules. A second civil forfeiture action is being handled judicially and remains ongoing. According to the affidavit of a FWS Special Agent in support of that forfeiture, on September 28, 2009 CBP reported the import of a shipment of Madagascar ebony wood at the Port of Newark, New Jersey. The shipment was exported by Nagel GMBH and Company KG (Nagel) of Hamburg, Germany to its U.S.-based affiliate, Hunter Trading Company (Hunter) of Westport, Connecticut for its customer, Gibson Guitars of Nashville.

CBP notified Hunter that the required Lacey Act declaration had not been submitted upon importation and an employee of Hunter subsequently submitted a declaration for 1,664 cubic meters of ebony, sawn sizes, and 700 cubic meters of Madagascar black ebony, declaring the country of harvest for both as Madagascar.

However, a 2006 Madagascar Interministerial Order requires all existing, legally harvested stocks of ebony wood to be declared to the relevant office of the Madagascar Ministry of Environment, Water and Forests. Any ebony not declared under that order is subject to seizure by Malagasy authorities. According to the search warrant affidavit in the public record, investigators have been unable to discover any authorizations for exports of unfinished, semi-worked, or sawn ebony to Nagel from Madagascar since at least September 2006.

The FWS Special Agent averred in an affidavit that he believed the Defendant Property was exported from Madagascar and imported into the U.S. in violation of 16 USC 3372(a) prohibiting the import of a plant product taken, possessed, transported, or sold in violation of an underlying foreign law and imported without the filing of a Lacey Act declaration and was therefore subject to forfeiture. Gibson Guitars has filed a claim in this forfeiture proceeding and moved to dismiss the forfeiture complaint. Briefing in the case continues.

False Labeling Cases Have Been Minimized, Trafficking Cases Are Anticipated

The report states that with respect to false labeling cases, the phase-in schedule for enforcement of the plant declaration requirement and the mechanics related to the implementation of the requirement to date have effectively minimized opportunities for such prosecutions. The report also states that while trafficking cases are exponentially more complex, such investigations are ongoing and prosecutions are anticipated.

Other Countries Following U.S. Lead in Efforts to Combat Illegal Logging

The Bulletin adds that the passage of the Lacey Act Amendments catapulted the U.S. into a global leadership role in the ongoing multilateral effort to combat illegal logging and associated trade. Since the enactment of the Amendments, other nations are now considering laws that are similar to the Lacey Act amendments to help stem this international trade. By prosecuting Lacey Act cases, federal prosecutors will play an important role in the global efforts to combat illegal logging and deforestation.