Are Your Paper Products Complying with the Lacey Act?

This Lacey Act (the “Act”) prohibits trafficking in illegal wildlife, fish, and plants. 16 U.S.C. §§ 3371-78. The Act was recently amended by the Food, Conservation, and Energy Act of 2008 (commonly referred to as the Farm Bill of 2008; the “Farm Bill”), Pub. L. No. 110-234, § 8204, 122 Stat. 923, 1291-94 (May 22, 2008), which expanded the Act’s protection to a broader range of plants and plant products, including timber derived from illegally harvested plants. The regulatory requirements now apply to imported paper and paper products and may require an importation declaration. See, Implementation of Revised Lacey Act Provisions, 73 Fed. Reg. 58,925, 58,926 (Oct. 8, 2008). Violations of the Act are punishable by civil or criminal penalty, or forfeiture of imported goods. Id. at § 3773-74.

I. History of the Lacey Act

First enacted in 1900, the Act is the nation’s oldest wildlife protection statute. It was significantly amended in 1981, 1988 and now in 2008. The 2008 amendment addresses illegal logging (e.g., theft of timber, including from parks and protected areas; harvesting without permission; failure to comply with harvesting regulations; and failure to pay royalties, taxes, or fees). Before the 2008 amendment, the Act only covered plants native to the United States that were listed in one of the three appendices to the Convention on International Trade in Endangered Species of Wild Fauna and Flora (“CITES”) or protected by the law of a U.S. state that conserves species threatened with extinction. The Farm Bill extends the Act’s reach to encompass products, including paper, that derive from plants illegally harvested in the country of origin and brought into the United States, either directly or through manufactured products, including products manufactured in countries other than the country where the illegal harvesting took place.

An interagency group has been formed to implement the new Act requirements. The lead agency is the U.S. Department of Agriculture’s (“USDA”) Animal and Plant Health Inspection Service (“APHIS”). The department of Homeland Security’s Customs and Border Protection (“CBP”) will collect data required by the statute. The Department of Justice and the Department of the Interior’s Fish and Wildlife Service will assist with enforcement. The USDA’s Forest Service, the Office of the U.S. Trade Representative, and the Department of State are also involved in implementation of the new requirements.

II. Substantive Prohibition

Under the recent amendment, it is now unlawful to “import, export, transport, sell, receive, acquire, or purchase in interstate or foreign commerce” any plant:

(i) taken, possessed, transported, or sold in violation of any law or regulation of any State, or any foreign law, that protects plants or that regulates:

(I) the theft of plants; (II) the taking of plants from a park, forest reserve, or other officially protected area; (III) the taking of plants from an officially designated area; or (IV) the taking of plants without, or contrary to, required authorization;

(ii) taken, possessed, transported, or sold without the payment of appropriate royalties, taxes, or stumpage fees required for the plant by any law or regulation of any State or any foreign law; or

(iii) taken, possessed, transported, or sold in violation of any limitation under any law or regulation of any State, or under any foreign law, governing the export or transshipment of plants.

See, 16 U.S.C. § 3372(a)(2).

It is also unlawful to make or submit any false record, account, or label for, or any false identification of, any plant. Id. at § 3372(d). The term “plant” means “any wild member of the plant kingdom, including roots, seeds, parts, and products thereof, and including trees from either natural or planted forest stands.” 16 U.S.C. § 3771(f)(1) (emphasis added). Excluded from this definition are “common cultivars” and “common food crops,” scientific research specimen, and plants to remain planted or be replanted. Id. at § 3771(f)(2). To the extent that they contain covered plant products, lumber, wood pulp, paper, and paperboard are now covered by the Act.

The substantive portion of the Act provides that any person engaged in prohibited conduct and who knew or should have known that the plants were illegally trafficked may be subject to civil penalties, criminal penalties, and forfeiture. Id. at § 3773(a)and (d). The Act effectively says that it is not acceptable to remain ignorant, at least by design, of the origin of the plants that are used in various products. There is a responsibility to understand where the plants came from and the conditions under which they were harvested. See, Implementation of Revised Lacey Act Provisions, U.S. Dept. of Agriculture 69 (Oct. 14, 2008) (statement of Michael Guzman, Principal Deputy Assistant Attorney General for Environmental & Natural Resources, Department of Justice).

III. Declaration Requirement

Beginning December 15, 2008, it will be unlawful to import any plant or plant product covered under the Act without filing upon importation a declaration that contains the scientific name of the plant (i.e., genus and species), a description of the value of the importation and the quantity of the plant, and the name of the country from which the plant was taken. 16 U.S.C. § 3772(f)(1). If the species varies and is unknown, the declarant must provide the name of each species that may have been used to produce the product. Id. at § 3372(f)(2)(A). If the species is commonly harvested in more than one country, and the country of origin is unknown, the declarant must list the name of each country from which the plant may have been harvested. Id. at § 3372(f)(2)(B).

For paper and paperboard products with recycled content, the declarant must state the average percentage of recycled content, without regard for the species or country of origin of the recycled plant product, in addition to the information required for the non-recycled plant content. Id. at § 3372(f)(2)©. The declaration requirement does not apply to packaging material (i.e., anything used to support, protect, or carry another item) unless the packaging material is the item being imported. Id. at § 3372(f)(3).

The declaration requirement is separate from, and in addition to, the substantive provisions of the Act. The declaration is required by statute as of December 15, but enforcement will be phased in starting in April 1, 2009. 73 Fed. Reg. at 58,926. Enforcement of the declaration requirement is delayed because CBP, the agency tasked with collecting information under the Act, is developing an electronic system to collect declaration data, and “intend[s] to begin enforcement of the declaration requirements upon completion” of that system. Id. Once the electronic system is complete, all agencies with Act enforcement authority will employ a phased-in approach to enforcement of the declaration requirements. Id. The proposed phase-in enforcement schedule is based on Harmonized Tariff Schedule (HTS) chapters. Id. Enforcement of declarations for paper and paper products, HTS chapter 48, will begin on approximately July 1, 2009. Id.

Prior to availability of the electronic filing (i.e., from December 15, 2008, to April 1, 2009), a paper declaration form will be available for voluntary submission. Id. During that time, “[n]o agencies with Lacey Act enforcement authority will bring prosecutions or forfeiture actions for failing to complete the paper declaration form before the electronic system for data collection is available”; “however, any person who submits a form containing false information may be prosecuted.” Id.

IV. Penalties for Violation

The Act provides for both civil and criminal penalties for failure to comply with its provisions. 16 U.S.C. § 3373. Regardless of these penalties, unlawful plants or plant products are subject to seizure and forfeiture. Id. at § 3374.

A. Civil Penalties

The Act allows for the imposition of civil administrative monetary penalties against a party that “in the exercise of due care should know” of the illegal history of the plant in question or that “knowingly violates” the declaration requirement. 16 U.S.C. § 3373(a)(1). A penalty of up to $10,000 may be imposed for each such violation, id., depending on “the nature, circumstances, extent, and gravity of the prohibited act committed, and with respect to the violator, the degree of culpability, ability to pay, and such other matters as justice may require,” id. at § 3773(a)(6). Any party that unknowingly violates the declaration requirement may be assessed a civil penalty of not more than $250. Id. at § 3373(a)(2).

B. Criminal Penalties

Felony or misdemeanor criminal penalties may be imposed, depending on the defendant’s knowledge of the underlying violation.

1. Violations of the Substantive Prohibition

A felony offense of the Act’s substantive prohibition results when a party “knew” or was generally aware of the illegal nature of a plant, although not necessarily the specific law violated, and the party knowingly imported or exported the plant or “knowingly” engaged in conduct during the offence that involved the sale or purchase of, the offer for sale or purchase of, or the intent to sell or purchase plants with a market value of more than $350. Id. at § 3373(d)(1). The penalty for a felony violation is a fine of not more than $20,000, or imprisonment for not more than 5 years, or both, for each violation.

A misdemeanor offense results when a party “in the exercise of due care” should have known of the illegal nature of the plant, although not necessarily the specific law violated. Id. at § 3373(d)(2). The penalty for a misdemeanor violation is a monetary fine of not more than $10,000, imprisonment of not more than 1 year, or both, for each violation. Id.

2. Violations of the Declaration Requirement

A felony offense of the declaration requirement results when a party “knowingly” violates the declaration requirement for an importation of plants with a market value of more than $350. Id. at § 3373(d)(3)(A). The penalty is a fine of not more than $250,000 for an individual, or not more than $500,000 for an organization, and imprisonment for not more than 5 years, or both. Id., 18 U.S.C. §3571(b)-©. A misdemeanor offense results if the value of the shipment is less than $350. Id. at § 3373(d)(3)(B). The penalty for a misdemeanor offense is a fine of not more than $100,000 for an individual, or $200,000 for an organization, and not more than 1 year imprisonment.

C. Forfeiture

All plants or plant products imported in violation of the Act are subject to forfeiture, notwithstanding the importer’s knowledge of the illegal nature of the plant or plant product. 16 U.S.C. § 3374(a)(1). This means that the Act’s forfeiture provisions are enforced on a strict liability basis. See United States v. 144,744 Pounds of Blue King Crab, 410 F.3d 1131, 1133-34 (9th Cir. 2005). Forfeiture of vehicles and equipment is authorized in cases of criminal convictions. Id. at § 3374(a)(2).

V. Regulation

Most of the Act is self-implementing and, thus, may be enforced prior to the promulgation of any regulations. Nonetheless, the Secretary of Agriculture has the general authority to issue regulations, after consultation with the Secretary of Treasury, as may be necessary to carry out the provisions of the declaration requirement. 16 U.S.C. § 3376(a)(1). The Secretaries of Agriculture and the Interior are currently working on a joint rulemaking to define the terms “common cultivar” and “common food crop,” both exceptions to the definition of “plant” under the Act. Id. at § 3376©. No other Act rulemaking has yet been announced.

V. Practical Application

Because the substantive provisions of the Act are already in effect, companies should take action (exercise due care) to obtain information about the origin of plants used in the production of the imported paper (or other imported paper products). Specifically, companies should obtain the following information:

-The scientific name of the plant (i.e., genus and species);

-The name of the country from which the plant was taken;

-If the species varies and is unknown, obtain the name of each species that may have been used to produce the paper;

-If the species is commonly harvested in more than one country, and the country of origin is unknown, obtain the name of each country from which the plant may have been harvested; and

-If the paper contains recycled content, obtain the average percentage recycled content, without regard for the species or country of origin of the recycled plant product.

Companies should be complying with the declaration requirement as of July 1, 2009 and electronically file a declaration form to the CBP upon import of a regulated product into the United States.

Please let us know if you would like additional information on the new Lacey Act requirements.