Thursday, September 10, 2009

How the Lacey Act Affects Floor Covering and Wood Products Industries

Photo Credit: Brazil’s Amazon forest. (AP Photo/Renato Chalu)
Brazil's Amazon forest AP Photo/Renato ChaluIf you are in any way involved in the floor covering, furniture or other wood products industries, you've heard of the Lacey Act Amendments*. However, given how much confusion surrounds these amendments, you may not have fully realized how they affect you. In Continuing Wood Trade Under the Lacey Act Amendments just published by the Floor Covering Institute, I address many of the sources of confusion.

More specfically, the article extensively researches how the U. S. Department of Justice (“DOJ”) may apply the standard of “due care” when investigating allegations of illegal logging and illegal wood under the Lacey Act Amendments.

Our project was prompted by complaints from international suppliers alleging Lacey was merely restraint of trade and their ensuing requests for guidance. U.S. importers were also unsure what actions might meet the due care standard. Our goal was to determine what the government expects from the floor covering supply chain and find guidance to help the industry respond.

Trees are a recent addition to the century old Lacey Act and the DOJ has a long history of investigating and prosecuting Lacey violations. Current information exists that should help the floor covering and wood products industry. This is addressed in the full article [pdf of Continuing Wood Trade Under the Lacey Act Amendments available via this link]. Here are some of the conclusions we reached:

  • The law is fact based, not document based, which is why documents alone will not satisfy the DOJ. They will not find certifications are proof that wood is legal if facts prove otherwise.

  • Certifications are good evidence of “due care”.

  • Due care may be applied differently to different people. The level of knowledge and involvement in the import process is a factor.

  • Relying solely upon others to perform due care probably won’t satisfy the DOJ.

  • Wood products made from illegal wood can be seized at any point in the supply chain.

  • There are red flags the DOJ will expect to give rise to more caution.

  • To be in violation one does not need to have harvested but simply participated in the chain.

  • Everyone in the supply chain should create written responsible procurement policies for their companies.
Due care simply requires that a person facing a particular set of circumstances undertakes certain steps which a reasonable person would to insure he or she is not violating the law. A prudent example of due care is to create a responsible procurement policy for your company. Perhaps our most pragmatic observation is that while you may not have control over the chain of custody of wood you do control your own actions.

Learn more about how the DOJ may apply the standard, the role of third party certifications, what the DOJ expects to trigger a higher degree of care, what constitutes illegally logged wood, penalties, compliance, enforcement, the PPQ 505 Plant Product Declaration, high risk countries where illegal logging exists and the evolution of the lacey act, in the full article.

I'd love to hear what you think. And, please, let me know if you have any questions.

- Jim

* This link from APHIS – the primary implementer of the act - is the red lined version of the Lacey Act showing what the 2008 amendment did in context to the greater act.

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