Bill Introduced to Reduce Lacey Declaration Rules for Wood, Etc.

(While this bill would benefit importers and retailers, it was likely introduced to benefit Gibson Guitar Corporation, which had its factories in Tennessee raided twice by the Justice Department for alleged Lacey Act violations regarding the wood it imports for its guitars. See ITT's Online Archives 09120299 and 11083010 for summaries of DOJ's 2009 and 2011 raids of Gibson's factories in Tennessee.)

Would Exempt Pre-2008 Plants/Products from Lacey Act

The bill would amend the Lacey Act so that it would not apply to (1) any plant that was imported into the U.S. before May 22, 2008 (the effective date of the 2008 Lacey Act Amendments¹) or to (2) any finished plant or plant product assembled and processed before that date.

Limit Lacey Declaration to Plants Entered for Consumption

This bill would also amend the declaration requirement to limit it to plants that are entered for consumption.

Declarations for Tree Products Would Need Less Info Unless Solid Wood

In the case of a plant product that is derived from a tree, the declaration would not need to include the scientific name of the plant, value of the import, quantity of the plant, and country where the plant was taken, unless the plant product is solid wood, as would be defined by APHIS.

Penalties for 1st “Knowing” Plant Offense Would be No More than $250

Any person who violates the declaration and other requirements for plants and who in the exercise of due care should know that the plant was taken, possessed, transported, or sold in violation of, or in an unlawful manner may, for the first such violation, be assessed a civil penalty by the Secretary of not more than $250².

The bill would also provide that all violations that arise from a single act or omission for which a civil penalty may be assessed would be treated as a single offense.

(In addition, the limitation on the innocent owner defense in 18 USC 983(d) would not be applicable if certain requirements of that section are met.)

Would Require Certification Process for Legal Plant/Products

A standard certification process would be required to be established for plant and plant products legally harvested, imported, or manufactured after May 22, 2008, that considers individual item certification and individual manufacturer, importer, and retailer certification for purposes of sale and resale.

FWS Would Evaluate Possible Database of Foreign Laws

This bill would require APHIS to issue a report to Congress evaluating the feasibility of creating and maintaining a publicly available database of laws of foreign countries from which plants are exported.

(Currently, APHIS provides a list of four websites that may be useful to look-up the scientific names of plants: the PLANTS Database (here), GRIN Taxonomy for Plants (here), Integrated Taxonomic Information System (here), and the International Plant Names Index (here).)

Would Require Adequate Funding for Declaration Processing, Etc.

The bill would require that the head of each Federal agency responsible for implementing the Lacey Act Amendments allocate sufficient amounts of resources (from amounts otherwise available) for the processing of all declarations and other requirements.

FTC Would Review Competitiveness of Raw Materials Market for Instruments

Lastly, 180 days after the enactment of this bill, the Federal Trade Commission (FTC) would a review the competitiveness in the domestic market for raw materials for the manufacture of musical instruments and the impact of the amendments made by this bill to the Lacey Act Amendments on such competitiveness, and submit a report to Congress containing the results of the review.

¹The Food, Conservation, and Energy Act of 2008 (2008 Farm Bill) was effective May 22, 2008 and amended the Lacey Act by expanding its protection to a broader range of plants and plant products. The Lacey Act now, among other things, makes it unlawful, beginning December 15, 2008, to import certain plants and plant products without an import declaration. (See ITT's Online Archives 08100805 for summary.)

²According to APHIS' October 2010 FAQs on the Lacey amendments, civil and criminal penalties apply only to persons who knowingly violate the declaration requirements. Others who violate the declaration requirement may be assessed a civil administrative penalty of $250. Violators may also be subject to forfeiture. FAQs are available here

(See ITT's Online Archives 11042816 for summary of an APHIS guidance document on Special Use Codes, which states that goods manufactured prior to the 2008 amendments with materials that are untraceable, despite due diligence, should use a Genus Code of "Special" and a Species Code of "PreAmendment" on the declaration.

See ITT's Online Archives 11063014 for summary of APHIS' June 2011 advanced notice of proposed rulemaking (ANPR) seeking proposals to address problems with the implementation of the Lacey Act declaration requirement.

See ITT's Online Archives 11092603 for summary of trade associations' comments on APHIS' June 2011 ANPR, many of which supported the use of Special Use Codes for products of plant materials harvested or manufactured prior to the 2008 amendments, among other things.

See ITT's Online Archives 11092020 and 11090727 for summaries of a "filled out" sample of and APHIS pointers on the new Lacey Declaration Form PPQ 505.)

H.R. 3210 is available here.

Press release on Cooper introducing H.R. 3210 is available here.