On the Lacey Act - Mountains of useless information

From rulemaking on the Lacey Act from APHIS. A comment from the National Customs Brokers and Forwarders Association of America. By the way, check out the regulations.gov blog (links at the end of the page) for more detailed coverage of the rulemaking machinery.




The Lacey Act Amendments place undue burden on importers-and at the same time provide no value to any agency-in their requirement for large scale speculation as to genus, species and origin ofplants when the exact information is not known. The declaration requirement is overly broad and will result in mountains of useless information being submitted with absolutely no regulatory or enforcement value. Accordingly, the definition ofthe terms "common cultivar" and "products thereof' should be defined broadly to reduce the scope of the plants subject to the declaration requirement.
We are concerned that the importers will be unable to meaningfully comply with the requirement that they identify the type of genus, species and origin of plant utilized in their imported product. The requirement to provide this information should be clarified to indicate that the importer is only required to make this declaration utilizing the best information • TRUST
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available. Moreover, the Federal Agencies charged with implementing the Lacey Act
Amendments should make available a comprehensive list of common plant species with their scientific names to assist importers in reporting the required information.
There should be a provision for Innocent Owner Liability or, more properly, the lack thereof. An innocent owner, one who has no knowledge of any illegal logging that may have been involved in the construction of his product, should not be the object ofprosecution. Agencies should provide guidance for importers regarding steps that may be taken to reach the standard of "due care," such as a declaration based on the manufacturer's information and familiarity with similar products.
Finally, we believe that it is important that the import declaration not be an admissibility requirement for Customs release. Rather, it should be part of the post-entry process so it will not adversely affect the flow of legitimate trade. At the time of entry, importers should only be required to declare that their products are in compliance with the provisions ofthe Lacey Act. A more reasonable approach to implementing these regulations would be to require an affirmative declaration at the time of entry and to require the importer to maintain records relating to the genus and species which could be made available to APHIS upon request on a post entry basis.