Possible Amendments to Lacey Act

The Lacey Act is apparently the current poster-child for the excessive regulation of business. I know that because ON February 2, Senator Rand Paul has proposed FOCUS, the Freedom from Over Criminalization and Unjust Seizure Act. Under the bill, the criminal sanctions in the Lacey Act would be replaced with civil penalties. The bill also excises any reference to "foreign law" from the Lacey Act.

The Lacey Act is intended to prevent U.S. importers from benefiting from trade in plant and animal products that were illegally obtained. In other words, someone in the U.S. should not be in a position to benefit from elephant poaching in Kenya. But, it is only "poaching" when defined as such in Kenya, which is foreign law. 

According to a web site for Senator Paul's campaign, "The Lacey Act as currently codified is overly broad, imprecise, vague, and subject to abuse by overzealous prosecutors and activist judges." Oddly enough, I think it is a compliance mess that is extremely difficult to manage. That said, I think the notion that we cannot recognize foreign laws in situations like this is silly. It is not exactly the same thing, but if this is successful, I bet there will be efforts to loosen restrictions on conflict minerals, blood diamonds, and similarly regulated products. Again, I understand that compliance with these rules if difficult and that enforcement needs to be based on common sense and reasonable business possibilities. But, there is a baby and the bathwater problem here as well.

Comments

Anonymous said…
Isn't the "foreign law" lanaguage analagous to what we do within the FCPA?
Mar 21, 2012, 10:29:00 AM
Online Law Degrees said…
It's tough to discern between whether there is further work to be done, or if this is simply political grand standing by Senator Paul.

~Sarah
Mar 30, 2012, 6:10:00 PM
Post a Comment

Popular posts from this blog

Ruling of the Week 2015.8: Old Jersey and Pitcairn Island

Image
For today's ROTW, I set out looking for a ruling dealing with some far off and preferably warm location. Turns out that, with the exception of coastwise transit issues, there are no Customs and Border Protection rulings involving Pitcairn Island or any of several Pacific Ocean microstates including Tuvalu , Niue , and Kiribati . Pitcairn Island What I did find is an interesting question about the country of origin marking for products of the Bailiwick of Jersey Island, Channel Islands. The ruling is HQ 561938 (Mar. 18, 2002). For those of you who may not know, Jersey is an island off the coast of Normandy, France. It is an independent international actor and not part of the U.K. although the U.K. is responsible for its defense and external relations. Also, the Queen is the Head of State in her capacity as "the Crown in Right of Jersey." It is, according to the U.S. Department of State, a " Crown Dependency " along with the Isle of Man and the Bailiwick o...
Read more

CAFC Decision in Double Invoicing Case

The Federal Circuit has issued a decision on the merits in United States v. Inn Foods, Inc.  There had been a previous decision on jurisdiction, which was followed by a trial at the Court of International Trade and then this appeal on the substance. The initial issue is whether Inn Foods' invoicing practice amounts to fraud.  Inn Foods had been receiving an invoice from growers in Mexico that had a relatively low sales prices on it.  Subsequent to entry, Inn Foods created a second invoice at something more similar to market value, retaining the original invoice number, and paid at that higher amount.   Superficially, this looks like a standard-issue double-invoicing scheme.  But, in the age of reconciliation, is it really more like a provisional pricing mechanism?  It might have been possible to make that argument had Inn Foods adjusted its entries accordingly.  It didn't and the loss of revenue was approximately $624,000.  Based on testimony and evidence indicating both knowl...
Read more

Ninestar and UFLPA Exhaustion

Image
Exhaustion is a key doctrine in administrative law. When applicable, it requires that a party unhappy with an agency’s determination complete the administrative appeal process before turning to the courts for judicial review. Requiring exhaustion typically promotes judicial efficiency by ensuring that disputes are resolved at the agency and, if they are not, that there is a complete record of the agency process. Exhaustion also ensures that the judiciary respects the executive agencies and their expertise.  There are, on the other hand, times when the courts will find that exhaustion is not necessary or appropriate. Such is the case in  Ninestar Corporation et al. v. United States  et al., a decision of the U.S. Court of International Trade.  Ninestar is also interesting because it is one of the first cases in the CIT involving the Uyghur Forced Labor Prevention Act, known as UFLPA. In my hiatus from active blogging, I missed the rise of UFLPA as a major compliance t...
Read more