Changes to the US Lacey Act (16 U.S.C. 3371 et seq.) that were enacted in May 2008 have attracted considerable attention among timber producers and traders. However, there has also been some misunderstanding of the Lacey Act. The following is a brief summary of these new provisions.
The Lacey Act was initially enacted in 1900; it is the oldest national wildlife protection statute in the United States. Prior to the 2008 amendments, the Lacey Act was an anti-trafficking measure covering a broad range of fish and wildlife, but relatively few plants. The amendments expand the scope of plants covered so that the Act can, among other things, serve as a tool to help the US support the efforts of other countries, as well as its own states, to combat illegal logging. Specifically, with these amendments, the Lacey Act now makes it unlawful to, among other things, import, export, transport, sell, receive, acquire, or purchase in interstate or foreign commerce any plant, with some exceptions, taken or traded in violation of the laws of a US state and most foreign laws.
The definition of the term ‘plant’ in the amended Lacey Act includes ‘any wild member of the plant kingdom, including roots, seeds, parts, and products thereof, and including trees from either natural or planted forest stands’. There are certain exclusions, including: (1) common cultivars (except trees) and common food crops; (2) live plants that are to remain or be planted or replanted; and (3) scientific specimens of plant genetic material to be used for research. Exclusions under (2) and (3) do not apply for those species that are listed in an Appendix to the Convention on International Trade in Endangered Species of Wild Fauna and Flora (CITES), as endangered or threatened under the US Endangered Species Act, or pursuant to any US state law providing for conservation of indigenous species threatened with extinction.
As of 22 May 2008, if a tree is illegally harvested, made into wood products, and then exported to the US, anyone who imported, exported, transported, sold, received, acquired or purchased the wood products made from that illegal timber, who knew or should have known that the wood was illegal, may be prosecuted for violation of the Lacey Act. The defendant need not be the one who violated the foreign law; the plants or timber, and the products made from the illegal plants or timber, become ‘tainted’ even if someone else commits the foreign law violation. However, the defendant must know, or in the exercise of due care should know, about the underlying violation. Illegal plants and plant products may also be seized and forfeited whether or not the person from whom they are seized knew of the illegal nature of the product. In any prosecution or forfeiture under the Lacey Act, the burden of proof of a violation rests on the US government.
The 2008 amendments also introduce the requirement for an import declaration for plants entering the US Enforcement of this requirement will be phased in, beginning 1 April 2009, or as soon thereafter as the electronic system used to collect customs information is revised to collect the new information.
The plant import declaration will require the scientific name of the plant (tree genus and species), quantity and value of the importation and name of the country where the timber was harvested. The plant import declaration does not require information on legality and does not require certification of any kind.
Current information on implementation of the amended Lacey Act can be found on the USDA-APHIS webpage: www.aphis.usda.gov/plant_health/lacey_act/.