Who Knew that Gorgeous Mirror Needs an FWS Declaration?

Understanding the specific regulations  overseen by the Fish and Wildlife Service (FWS) can often times be challenging. Businesses should be aware of how the FWS enforces the regulations, environmental wildlife protection laws, and international wildlife treaties of other agencies. For instance, violations of FWS regulations can trigger penalties under the National Oceanic and Atmospheric Agency (NOAA), Customs and Border Protection (CBP), Endangered Species Act (ESA), Lacey Act, Convention of International Trade in Endangered Species of Wild Fauna and Flora (CITES), among other protected species statutes and regulations. In some cases, the violations of FWS regulations can even be triggered for the import/export of plants and wood, which are normally regulated by Animal and Plant Health Inspection Services (APHIS).

A common issue arises when importers do not realize that certain products contain material subject to FWS requirements. For instance, mirrors made with shell trim, jewelry boxes made with mother of pearl, earrings made of bird feathers or watches with mother of pearl faces and bands made of certain animal leather (think alligator watch bands) are subject to FWS requirements. Common types of products that are subject to FWS include pool tables with mother of pearl inlay, animal skins, leather goods, wallets, shoes, and many more.

Businesses should continuously evaluate their import/exports to confirm that they are following FWS regulations, as well as U.S. and international law. In addition to understanding the various agency laws at play, companies should understand the basic licensing and reporting requirement to import and/or export wildlife.  For example, companies involved in these activities must have a valid license with FWS to engage in import/export of wildlife.  Further, each shipment of wildlife must be reported to FWS at time of import or export through the Form 3-177.  If a protected or endangered species is involved, a license may be required to legally import or export the protected wildlife product.  Questions such as “are our FWS licenses valid,” “has a Form 3-177 been correctly completed and submitted,” and “has the shipping container been appropriately marked” are just a few of the questions that should be addressed when FWS is implicated.

Because the FWS enforces regulations of multiple agencies, there can be varying penalty structure in play in relation to one violation. For example, penalties under the ESA examine whether the importer/exporter caused a “taking” of any listed species of endangered fish or wildlife. Under the Lacey Act, it is a violation of federal law to import, export, sell any fish or wildlife possessed, transported or sold in violation of any law, treaty, or regulation of the United States. In addition to having different penalty structures, multiple agencies can assess penalties for one violation. For example, a violation under the ESA for knowingly trafficking an endangered ocean species can also be a violation under NOAA which regulates endangered marine wildlife.

To determine if multiple agencies are implicated for an FWS violation, importers/exporters should look to the specifics of each agency’s regulations. For NOAA, was the endangered species a marine animal? For CBP, was there an import violation pertaining to wildlife or an endangered species? For the ESA, was the commodity an endangered or protected species? For the Lacey Act, was a protected species implicated or was due care exercised? Answering these questions will provide helpful guidance on which agencies are involved when a violation occurs.

A recent example of multiple agencies being implicated for an FWS violation occurred in July of 2019. An individual was charged under the Marine Mammal Protection Act (MMPA) for knowingly “taking” a polar bear in an unlawful manner. FWS conducted the initial investigation of the case which led to charges being filed. The case is currently pending in the U.S. Attorney’s Office for the District of Alaska and if convicted, the individual faces up to one year in prison and a $100,000 fine.

For any additional inquiries, or if you would like to discuss FWS compliance measures in more detail, please contact Jennifer Horvath at jennifer@braumillerlaw.com.