the time of its passage, substantially enhancing the effectiveness of the Lacey Act, its lack of subsequent amendment has reduced its importance today. Most notably, it is limited solely to birds and mammals, whereas the Lacey Act, by virtue of an amendment in 1969, now prohibits importation and interstate commerce in unlawfully acquired foreign mollusks, crustaceans, amphibians and reptiles as well.29/ Similarly, the Black Bass Act, by virtue of an amendment in 1952, now applies to all types of fish. 30/ Accordingly, whereas under the Tariff Act consular certification is required for certain imported birds and mammals, for other types of foreign wildlife whose importation is prohibited by the Lacey or Black Bass Acts, no consular certification is required and effective enforcement therefore depends heavily upon the knowledge by customs agents of foreign wildlife laws.31/ 29/ 30/ 31/ Endangered Species Conservation Act of 1969, Pub. L. No. Act of July 16, 1952, ch. 911, $2, 66 Stat. 736 (current 517. Administrative regulations of the Fish and Wildlife Service provide that when foreign law restricts the taking or exportation of a species sought to be imported, "the owner, importer, or consignee may be required to produce foreign documentation showing that such laws or regulations have not been violated." 50 C.F.R. $14.41 (1975) (emphasis added). When such foreign documentation is required, it can be sat The Tariff Act also presents some anomalies in terms of the exceptions that it contains. For example, animals imported for scientific or educational purposes are exempt from its requirements.32/ Although this exemption may have reflected a policy judgement in 1930 that for the purposes specified the United States would not assist in the enforcement of foreign wildlife laws, nevertheless, that policy was reversed when the Lacey Act was amended in 1935 to prohibit the importation of all wildlife taken contrary to foreign law, without exception for scientific, educational, or other purposes. Accordingly, the exemption in the Tariff Act is an anachronism serving no current policy.33/ 32/ 33/ isfied by production either of official permits from the countries of origin and export, or of consular certification. 50 C.F.R. $14.42 (a), (b)(1975). As a result of the Convention on Trade in Endangered Species of Wild Fauna and Flora, official export permits must accompany all animals listed on any of its three appendices. See Chapter Twelve infra at text accompanying notes 30-46. Although any country that is a party to that Convention may list on Appendix III those species within its jurisdiction whose protection requires the cooperation of other parties, the failure to list any protected species does not diminish the requirement of the Lacey Act that only lawfully taken animals from that species may be imported. 19 U.S.C. $1527 (c) (2) (1970). The assertion in the text is not entirely free from doubt. Finally, it is not entirely clear that the Tariff Act is adequate to protect against the practice of exporting to the United States from one country wildlife unlawfully taken in a third coutnry. The Tariff Act purports to bar the importation, "directly or indirectly", or wildlife taken contrary to the laws of the country of origin, yet the only certification required is that of the United States consul "for the consular district in which is located the port or place from which such [animal] was exported."34/ An amendment of a wholly different character in 1949 prohibited the importation of "wild animals or birds" under conditions known to be "inhumane or unhealthful," and authorized the Secretary of the Treasury to prescribe requirements for the transportation of such animals under humane and healthful conditions.35/ The amendment further provided that "the presence of a substantial ratio of dead, crippled, diseased, or starving wild animals or birds shall be deemed prima facie evidence" of a violation. The ambiguity inherent in the terms used in the statute (including the very term "wild animals or birds") perhaps explains why there have been no reported cases under this provision in the nearly three decades of its existence.36/ 34/ Notwithstanding the language quoted in the text, the administrative regulations of the United States Customs Service incorporate by reference the foreign documentation requirements of the Fish and Wildlife Service, which extend to both the country of origin and the country of export. See 19 C.F.R. $12.28 (1976). Under the Convention on Trade in Endangered Species of Wild Fauna and Flora, "re-export" certificates are required whenever importation of a listed species is from a country other than its country of origin. See Chapter Twelve infra at text accompanying notes 37-46. 35/ Act of May 24, 1949, ch. 139, §2, 63 Stat. 89 (codified at 18 U.S.C. $42(c) (1970). 36/ Treasury's current regulations pertaining to humane and healthful importation are found at 19 C.F.R. §12.26(j), (k) (1976). The humane treatment of certain types of wild animals held in captivity is also required by the Animal Wel Finally, the penalties for violations of the Lacey Act have been substantially changed since its enactment. Whereas the Act originally prescribed a uniform maximum penalty of $200 for any violation, it now fixes maximum penalties of $500, or six months imprisonment, or both, for violations of its requirement that packages shipped in interstate or foreign commerce containing wild animals be clearly marked.37/ For violations of the Act's restrictions against commerce in unlawfully taken wildlife, maximum penalties of $10,000, or one year of imprisonment, or both, may be imposed if such violations are done "knowingly and willfully. "38/ In 371 38/ fare Act, 7 U.S.C. §§2131-55 (1970). 18 U.S.C. $44 (1970). The same penalties apply to viola- Some violations of section 3 of the Lacey Act may also addition, any person who "knowingly violates, or who, in the exercise of due care, should know that he is violating" those restrictions, is subject to a civil penalty of up to $5,000.39/ Penalties for violations of the Black Bass Act have never been changed from the original levels of $200 and three months imprisonment. Responsibility for administration of the Lacey and Black Bass Acts was originally vested in the Secretaries of Agriculture and Commerce, respectively. After three decades of consolidated responsibility in the Secretary of the Interior, administration was once again divided between the Secretaries of Commerce and the Interior in 1970.40/ The justification for that division of authority seems questionable, since the only administrative responsibility under the Acts is of a purely law enforcement nature. 41/ B. The Importation of Injurious Wildlife Beyond supplementing state wildlife conservation laws, the Lacey Act sought to protect domestic agricultural interests by prohibiting the importation of certain kinds of wildlife thought to be injurious to those interests. Thus, as originally enacted, the Lacey Act prohibited, except for "natural history specimens for museums or scientific collections," the importation of the mongooses, fruit bats, English sparrows, starlings, and "such other birds or animals as the Secretary of Agriculture may from time to time de 39/ 18 U.S.C. $43 (c) (1) (1970). 40/ 41/ Reorg. Plan No. 4 of 1970, 35 Fed. Reg. 15627, 84 Stat. 2090. Indicative of the fact that transition to shared responsibility has not been particularly smooth is the Secretary of Commerce's failure to publish final regulations concerning procedures for assessment of civil penalties for violations of the Lacey Act until July 30, 1976. See 41 Fed. Reg. 31825. See also note 42 infra. |