In November 2009, U.S. federal agents raided Gibson Guitar Corporation's manufacturing facility in Nashville, Tenn., as part of an investigation into the illegal trade of a rare wood species allegedly used in some of Gibson's musical instruments.
Although the seizure made headlines, few people are aware that this was not the first enforcement of the 2008 amendments to the U.S. Lacey Act (PDF), which banned commerce in illegal timber and paper products in the United States. There was one before it that has received little attention, until now.
Five months earlier, agents of the U.S. Fish & Wildlife Service seized three pallets of tropical hardwood as they entered the Port of Tampa, Fla., from Iquitos, Peru. Originating deep in the Amazon, the pallets contained numerous species of decorative woods, including tigrillo (Swartzia arborescens), palisangre (Brosimum rubescens), and tigre caspi (Zygia cataractae). Unlike the Gibson case, agents confiscated the wood on grounds that the shipment violated Lacey's declaration requirements. The seizure was supported by substantial evidence that the exporter was using stolen and forged documents. Details of the U.S. Department of Interior decision are available here (PDF).
It appears that the amended Lacey Act has teeth. Enforcement has begun, both on and off the public radar. This is a good development for the world's forests and for all law-abiding businesses.
The century-old U.S. law has been an effective means of curtailing illegal wildlife trade. It was amended in 2008 to cover products made from trees and other plants. In effect since May 22, 2008, the law:
• Prohibits trade into and within U.S. borders of any product made from trees or other plants that were logged or traded in violation of a law in the country of harvest. Products include paper, lumber, and furniture.
• Requires importers of plant products to declare the country of harvest, the genus and species of the plant, as well as the product's volume and value (this is the "declaration requirement").
• Establishes penalties for violations, including forfeiture of goods and vessels, fines of up to $500,000, and prison terms of up to five years.
The seizure of Peruvian tropical hardwood provides several insights into enforcement of the amended Lacey Act and what one needs to do to remain in compliance, namely:
1. Take the Declaration Requirement Seriously -- the U.S. Government Does
Declarations are the first line of defense against the import of illegally harvested wood and other plant products. Because of this focus, it is important to correctly fill out your declaration forms.
2. Heed Red Flags
Peculiarities that arise in the course of a business transaction should trigger an importer or buyer to ask more questions about the product's origin and legality and, if necessary, step away from the transaction. The Peru case had at least four peculiarities.
First, this was the first time the buyer had imported from Peru, thus it was purchasing from an unfamiliar source market. Second, an exporter in Peru contacted the buyer out of the blue with wood to sell; the buyer did not initiate the deal. Third, prior to the transaction, the buyer had received an email indicating that the company supplying the material had suspended its business operations. Fourth, the supplier in Peru requested receiving payment via money order made directly to an individual, not a company. Red flags, anyone?
3. Demonstrate Due Care
At the core of the amended Lacey Act is the responsibility of each buyer -- no matter where in the supply chain -- to conduct "due care." Due care is the legal term for exercising the level of appropriate action that would be taken by a reasonably prudent person under the same circumstances to minimize the risk of purchasing plant products that were harvested or traded illegally.