[House Hearing, 112 Congress]
[From the U.S. Government Publishing Office]
H.R. 3210, ``RETAILERS AND ENTERTAINERS
LACEY IMPLEMENTATION AND
ENFORCEMENT FAIRNESS ACT'' AND
H.R. 4171, ``FREEDOM FROM OVER-CRIMINALIZATION AND UNJUST
SEIZURES ACT OF 2012''
=======================================================================
LEGISLATIVE HEARING
before the
SUBCOMMITTEE ON FISHERIES, WILDLIFE,
OCEANS AND INSULAR AFFAIRS
of the
COMMITTEE ON NATURAL RESOURCES
U.S. HOUSE OF REPRESENTATIVES
ONE HUNDRED TWELFTH CONGRESS
SECOND SESSION
__________
Tuesday, May 8, 2012
__________
Serial No. 112-109
__________
Printed for the use of the Committee on Natural Resources
Available via the World Wide Web: http://www.fdsys.gov
or
Committee address: http://naturalresources.house.gov
U.S. GOVERNMENT PRINTING OFFICE
74-144 WASHINGTON : 2013
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20402-0001
COMMITTEE ON NATURAL RESOURCES
DOC HASTINGS, WA, Chairman
EDWARD J. MARKEY, MA, Ranking Democrat Member
Don Young, AK Dale E. Kildee, MI
John J. Duncan, Jr., TN Peter A. DeFazio, OR
Louie Gohmert, TX Eni F.H. Faleomavaega, AS
Rob Bishop, UT Frank Pallone, Jr., NJ
Doug Lamborn, CO Grace F. Napolitano, CA
Robert J. Wittman, VA Rush D. Holt, NJ
Paul C. Broun, GA Raul M. Grijalva, AZ
John Fleming, LA Madeleine Z. Bordallo, GU
Mike Coffman, CO Jim Costa, CA
Tom McClintock, CA Dan Boren, OK
Glenn Thompson, PA Gregorio Kilili Camacho Sablan,
Jeff Denham, CA CNMI
Dan Benishek, MI Martin Heinrich, NM
David Rivera, FL Ben Ray Lujan, NM
Jeff Duncan, SC Betty Sutton, OH
Scott R. Tipton, CO Niki Tsongas, MA
Paul A. Gosar, AZ Pedro R. Pierluisi, PR
Raul R. Labrador, ID John Garamendi, CA
Kristi L. Noem, SD Colleen W. Hanabusa, HI
Steve Southerland II, FL Paul Tonko, NY
Bill Flores, TX Vacancy
Andy Harris, MD
Jeffrey M. Landry, LA
Jon Runyan, NJ
Bill Johnson, OH
Mark Amodei, NV
Todd Young, Chief of Staff
Lisa Pittman, Chief Counsel
Jeffrey Duncan, Democrat Staff Director
David Watkins, Democrat Chief Counsel
------
SUBCOMMITTEE ON FISHERIES, WILDLIFE, OCEANS
AND INSULAR AFFAIRS
JOHN FLEMING, LA, Chairman
GREGORIO KILILI CAMACHO SABLAN, CNMI, Ranking Democrat Member
Don Young, AK Eni F.H. Faleomavaega, AS
Robert J. Wittman, VA Frank Pallone, Jr., NJ
Jeff Duncan, SC Madeleine Z. Bordallo, GU
Steve Southerland, II, FL Pedro R. Pierluisi, PR
Bill Flores, TX Colleen W. Hanabusa, HI
Andy Harris, MD Vacancy
Jeffrey M. Landry, LA Edward J. Markey, MA, ex officio
Jon Runyan, NJ
Doc Hastings, WA, ex officio
------
CONTENTS
----------
Page
Hearing held on Tuesday, May 8, 2012............................. 1
Statement of Members:
Fleming, Hon. John, a Representative in Congress from the
State of Louisiana......................................... 1
Prepared statement of.................................... 2
Markey, Hon. Edward J., a Representative in Congress from the
State of Massachusetts..................................... 5
Prepared statement of.................................... 7
Sablan, Hon. Gregorio, a Delegate in Congress from the
Commonwealth of the Northern Mariana Islands............... 3
Prepared statement of.................................... 4
Statement of Witnesses:
Baxter, Jeffrey, Musician/Producer, Former Member of Steely
Dan and the Doobie Brothers, and Advisor to D.O.D. and
I.C., Former Chair of the Advisory Board for Ballistic
Missile Defense............................................ 21
Prepared statement on H.R. 3210.......................... 23
Blumenauer, Hon. Earl, a Representative in Congress from the
State of Oregon, Oral statement on H.R. 3210............... 15
Broun, Hon. Paul C., a Representative in Congress from the
State of Georgia........................................... 17
Prepared statement on H.R. 4171.......................... 18
Cooper, Hon. Jim, a Representative in Congress from the State
of Tennessee............................................... 12
Prepared statement on H.R. 3210.......................... 13
Everill, Laurie, Regional Customs Compliance and Operations
Manager, IKEA--North America............................... 29
Prepared statement on H.R. 3210.......................... 31
Gardner, Adam, Frontman of Guster, Founder and Co-Director of
Reverb..................................................... 44
Prepared statement on H.R. 3210 and H.R. 4171............ 46
Harman, Donna A., President and Chief Executive Officer,
American Forest and Paper Association...................... 33
Prepared statement on H.R. 3210.......................... 35
Paul, Hon. Rand, a U.S. Senator from the State of Kentucky... 8
Prepared statement on S. 2062............................ 9
Rey, Hon. Mark, Climate Advisors............................. 39
Prepared statement on H.R. 3210 and H.R. 4171............ 42
Rubinstein, Reed D., Esq., Partner, Dinsmore & Shohl, LLP,
U.S. Chamber of Commerce's Institute for Legal Reform...... 48
Prepared statement on H.R. 3210 and H.R. 4171............ 50
Rutenberg, Barry, Chairman of the Board, National Association
of Home Builders........................................... 25
Prepared statement on H.R. 3210.......................... 27
Shea, Kevin, Associate Administrator, Animal and Plant Health
Inspection Service, U.S. Department of Agriculture......... 71
Prepared statement on H.R. 3210 and H.R. 4171............ 72
Sobeck, Eileen, Deputy Assistant Secretary for Fish and
Wildlife and Parks, U.S. Department of the Interior........ 63
Prepared statement on H.R. 3210 and H.R. 4171............ 65
Additional materials supplied:
Association of Fish and Wildlife Agencies, Statement
submitted for the record on H.R. 4171...................... 78
Canadian Manufacturers & Exporters and the Canadian
Manufacturing Coalition, Letter submitted for the record on
H.R. 3210 and H.R. 4171.................................... 79
National Association of Conservation Law Enforcement Chiefs,
Letter submitted for the record on H.R. 4171............... 81
National Association of State Boating Law Administrators,
Statement submitted for the record on H.R. 4171............ 83
Northeast Conservation Law Enforcement Chiefs Association,
Letter submitted for the record on H.R. 4171............... 84
Reverb, Statement submitted for the record................... 6
Scarlett, Lynn, Former Deputy Secretary, U.S. Department of
the Interior, Statement submitted for the record........... 39
(IV)
LLEGISLATIVE HEARING ON H.R. 3210, TO AMEND THE LACEY ACT
AMENDMENTS OF 1981 TO LIMIT THE APPLICATION OF THAT ACT
WITH RESPECT TO PLANTS AND PLANT PRODUCTS THAT WERE
IMPORTED BEFORE THE EFFECTIVE DATE OF AMENDMENTS TO
THAT ACT ENACTED IN 2008, AND FOR OTHER PURPOSES.
``RETAILERS AND ENTERTAINERS LACEY IMPLEMENTATION AND
ENFORCEMENT FAIRNESS ACT''; AND H.R. 4171, TO AMEND THE
LACEY ACT AMENDMENTS OF 1981 TO REPEAL CERTAIN
PROVISIONS RELATING TO CRIMINAL PENALTIES AND
VIOLATIONS OF FOREIGN LAWS, AND FOR OTHER PURPOSES.
``FREEDOM FROM OVER-CRIMINALIZATION AND UNJUST SEIZURES
ACT OF 2012.''
----------
Tuesday, May 8, 2012
U.S. House of Representatives
Subcommittee on Fisheries, Wildlife, Oceans and Insular Affairs
Committee on Natural Resources
Washington, D.C.
----------
The Subcommittee met, pursuant to call, at 1:02 p.m., in
Room 1324, Longworth House Office Building, Hon. John Fleming
[Chairman of the Subcommittee] presiding.
Present: Representatives Fleming, Duncan, Harris, Sablan,
Faleomavaega, and Markey (ex officio).
Dr. Fleming. The Subcommittee will come to order. The
Chairman notes the presence of a quorum. Good afternoon.
STATEMENT OF THE HON. JOHN FLEMING, A REPRESENTATIVE IN
CONGRESS FROM THE STATE OF LOUISIANA
Dr. Fleming. Today the Subcommittee will conduct a
legislative hearing on two bills that amend the Lacey Act. As a
result of amendments enacted in 2008, the impact of this law
was significantly expanded to include for the first time
thousands of American companies that trade in wood and wood
products.
The first bill, H.R. 3210, the Retailers and Entertainers
Lacey Implementation and Enforcement Fairness Act, or RELIEF
Act, was introduced by our distinguished colleague, Congressman
Jim Cooper of Tennessee. The purposes of this proposal are to
exempt any plant or finished plant product imported or
completed before May 22, 2008, to limit the declaration
requirement to solid wood and items imported only for commerce
and provide an innocent owner defense to individuals under the
Civil Assets Forfeiture Reform Act. At the time of
introduction, this legislation was endorsed by an impressive
list of organizations, including the National Association of
Home Builders, the National Retail Federation, the
International Wood Products Association, the National
Association of Manufacturers, National Association of Music
Merchants, National Audubon Society, the National Federation of
Independent Business, National Marine Manufacturers
Association, and the U.S. Chamber of Commerce.
The second bill we will hear is the Freedom from Over-
Criminalization and Unjust Seizures Act as introduced by
Senator Rand Paul of Kentucky and Congressman Paul Broun of
Georgia. This bill would remove all references to foreign laws
in the Lacey Act, and it reduces the penalty provisions under
the Act. One of the organizations that supports this
legislation is the Heritage Foundation, which recently stated
in an article that, ``It is a Federal offense to import fish,
wildlife or plants in violation of any foreign law. Such
legislation violates one of the fundamental tenets of Anglo-
American American law that 'men of common intelligence' must be
able to understand what a law means. No one should be forced to
run the risk of conviction and imprisonment for making a
mistake under a foreign law.''
The rushed changes in 2008 made for imperfect outcomes that
need to be addressed. This is the purpose of a congressional
hearing. What is disappointing is that the same environmental
organizations that don't want even a comma changed in this law
have consistently opposed any logging in this country. Today we
will hear reasons why changes may be needed to address the
legal jeopardy that Americans may face as a direct result of
the 2008 amendments.
During this hearing I am interested in learning what is the
cost and value of the declaration requirement, why all
suspected Lacey Act products are treated as contraband, and why
in the case of the 2008 amendments, Americans must comply with
the thousands of foreign laws, some of which may have little,
if anything, to do with the protection, conservation, and
management of plants.
[The prepared statement of Dr. Fleming follows:]
Statement of The Honorable John Fleming, Chairman,
Subcommittee on Fisheries, Wildlife, Oceans and Insular Affairs
Good afternoon, today, the Subcommittee will conduct a legislative
hearing on two bills that amend the Lacey Act. As a result of
Amendments enacted in 2008, the impact of this law was significantly
expanded to include for the first-time thousands of American companies
that trade in wood and wood products.
The first bill, H.R. 3210, the Retailers and Entertainers Lacey
Implementation and Enforcement Fairness Act or RELIEF Act was
introduced by our distinguished colleague Congressman Jim Cooper of
Tennessee. The purposes of this proposal are to exempt any plant or
finished plant product imported or completed before May 22, 2008, to
limit the Declaration requirement to solid wood and items imported only
for commerce and provide an ``innocent owner'' defense to individuals
under the Civil Assets Forfeiture Reform Act.
At the time of introduction, this legislation was endorsed by an
impressive list of organizations including the National Association of
Home Builders, the National Retail Federation, the International Wood
Products Association, the National Association of Manufacturers,
National Association of Music Merchants, National Audubon Society, the
National Federation of Independent Business, National Marine
Manufacturers Association and the U.S. Chamber of Commerce.
The second bill we will hear is the Freedom From Over-
Criminalization and Unjust Seizures Act as introduced by Senator Rand
Paul of Kentucky and Congressman Paul Broun of Georgia. This bill would
remove all references to foreign laws in the Lacey Act and it reduces
the penalty provisions under the Act.
One of the organizations that support this legislation is the
Heritage Foundation which recently stated in an article that ``It is a
federal offense to import fish, wildlife, or plants in violation of any
foreign law. Such legislation violates one of the fundamental tenets of
Anglo-American common law: that ``men of common intelligence'' must be
able to understand what a law means. No one should be forced to run the
risk of conviction and imprisonment for making a mistake under a
foreign law.''
The rushed changes in 2008 made for imperfect outcomes that need to
be addressed. This is the purpose of a Congressional hearing. What is
disappointing is that the same environmental organizations that don't
want even a comma changed in this law, have consistently opposed any
logging in this country. Today, we will hear reasons why changes may be
needed to address the legal jeopardy that Americans may face as a
direct result of the 2008 Amendments.
During this hearing, I am interested in learning what is the cost
and value of the Declaration requirement, why all suspected Lacey Act
products are treated as contraband and why in the case of the 2008
Amendments Americans must comply with the thousands of foreign laws,
some of which, may have little, if anything, to do with the protection,
conservation and management of plants.
I now recognize the Ranking Minority Member for any statement he
would like to make at this time.
______
Dr. Fleming. I now recognize the Ranking Minority Member
for any statement that he would like to make at this time.
STATEMENT OF THE HON. GREGORIO KILILI CAMACHO SABLAN, A
DELEGATE IN CONGRESS FROM THE TERRITORY OF THE NORTHERN MARIANA
ISLANDS
Mr. Sablan. Thank you very much, Mr. Chairman, and welcome
to all our guests, the Senator and my colleagues here in the
House.
Today we will discuss our most comprehensive Federal law to
combat wildlife crime, the Lacey Act. This 100-year-old law is
one of our most powerful protections we have for our natural
resources in the United States and the most powerful tool we
have for preserving important wildlife and habitat abroad.
Wildlife like tigers, rhinos, and apes capture the human
imagination, yet they face multiple threats around the world.
Although these animals are not native to the United States,
Americans have repeatedly supported measures to invest in
protecting these iconic species in their natural habitat.
For example, we recently held a bipartisan hearing in this
Subcommittee that examined the reauthorization of the
multinational species conservation funds. While these grants
play an integral part in species protection, the global trade
in illegal wildlife is estimated to be worth at least $5
billion annually. The minimal civil penalties recommended in
H.R. 4175 would not deter the organized crime syndicates
selling wildlife in the black market. Congress recognized in
the early 1980s that the Lacey Act required criminal
enforcement to provide wildlife--effective wildlife protection,
and this remains true today.
Over the last decade, it became clear that vulnerable
species were not going to recover as long as their habitats
continued to be destroyed. The 2008 amendments to the Lacey Act
addressed this deficiency by making it illegal to import
illegally logged wood, thus protecting the trees in the forest
where these animals live. However, these provisions not only
preserve wildlife, they also protect people and their jobs. The
loss of forest resources have been found to directly affect the
livelihood of 90 percent of the 1.2 billion people living in
extreme poverty worldwide. The Lacey Act has helped reduce
illegal logging by at least 22 percent globally with reductions
as high as 50 to 70 percent in some key countries.
Illegal logging also affects domestic jobs. Prior to
passage of the 2008 amendments, timber and wood industries in
the United States were forced to compete with countries that
illegally log in national parks, avoided duties and taxes, and
pay little or nothing for raw materials. These unfair practices
can cost U.S. logging industries up to a billion dollars a year
which directly translates to a decrease in American jobs.
There have been challenges in implementing these new
provisions, and we must make sure the agencies continue to work
with industries, retailers, and other stakeholders to minimize
the regulatory burden and uncertainty for legitimate
businesses. Without additional oversight, it is too early to
legislate on these challenges.
I look forward to examining legislation in this Committee
that addresses some of the serious problems facing our country
rather than spending time on bills that unravel a law that has
been examined and unanimously agreed upon by Congress multiple
times over the last 112 years. The Lacey Act is working to
invigorate U.S. industries and protect human rights and the
environment around the world. Thank you, and I look forward to
hearing from our witnesses.
[The prepared statement of Mr. Sablan follows:]
Statement of The Honorable Gregorio Kilili Camacho Sablan, Ranking
Member, Subcommittee on Fisheries, Wildlife, Oceans and Insular Affairs
Thank you, Mr. Chairman and welcome to all our guests.
Today we will discuss our most comprehensive federal law to combat
wildlife crime; the Lacey Act. This 100-year-old law is one of the most
powerful protections we have for our natural resources in the United
States and the most powerful tool we have for preserving important
wildlife and habitat abroad.
Wildlife, like tigers, rhinos, and apes, captivate the human
imagination, yet they face multiple threats around the world. Although
these animals are not native to the United States, Americans have
repeatedly supported measures to invest in protecting these iconic
species in their natural habitat. For example, we recently held a
bipartisan hearing in this subcommittee that examined the
reauthorization of the Multinational Species Conservation Funds. While
these grants play an integral part in species protection, the global
trade in illegal wildlife is estimated to be worth at least $5 billion
dollars annually. The minimal civil penalties recommended in H.R. 4171
would not deter the organized crime syndicates selling wildlife on the
black market. Congress recognized in the early 1980s that the Lacey Act
required criminal enforcement to provide effective wildlife protection
and this remains true today.
Over the last decade, it became clear that vulnerable species were
not going to recover as long as their habitats continue to be
destroyed. The 2008 amendments to the Lacey Act addressed this
deficiency by making it illegal to import illegally logged wood, thus
protecting the trees in the forests where these animals live. However,
these provisions not only preserve wildlife, they also protect people
and their jobs. The loss of forest resources has been found to directly
affect the livelihood of 90 percent of the 1.2 billion people living in
extreme poverty worldwide. The Lacey Act has helped reduce illegal
logging by at least 22 percent globally, with reductions as high as 50
to 70 percent in some key countries.
Illegal logging also affects domestic jobs. Prior to passage of the
2008 amendments, timber and wood industries in the United States were
forced to compete with countries that illegally logged in national
parks, avoided duties and taxes, and paid little or nothing for raw
materials. These unfair practices can cost U.S. logging industries up
to a billion dollars a year, which directly translates into a decrease
in American jobs.
There have been challenges in implementing these new provisions and
we must make sure the agencies continue to work with industries,
retailers and other stakeholders to minimize the regulatory burden and
uncertainty for legitimate businesses. Without additional oversight, it
is too early to legislate on these challenges.
I look forward to examining legislation in this Committee that
addresses some of the serious problems facing our country rather than
spending time on bills that unravel a law that has been examined and
unanimously agreed upon by Congress multiple times over the last 112
years. The Lacey Act is working to invigorate U.S. industries; and
protect human rights and the environment around the world.
Thank you and I look forward to hearing from our witnesses.
______
Dr. Fleming. I thank the Ranking Member Mr. Sablan for his
opening statement. I now recognize Mr. Markey for an opening
statement.
STATEMENT OF THE HON. EDWARD MARKEY, A REPRESENTATIVE IN
CONGRESS FROM THE STATE OF MASSACHUSETTS
Mr. Markey. Thank you, Mr. Chairman, very much. While there
may never be an answer to the age old question of whether a
tree falling in an empty forest makes a sound, today we ask
another question. If a tree is illegally cut down in a forest
and made into a guitar, do we make a sound about it? Is
undermining a bedrock law the right tone for us to set,
especially if it threatens domestic timber industries?
Throughout its 112 years, the Lacey Act, a Republican
Congressman from Iowa, has enjoyed strong bipartisan support.
The original bill was proposed by John Lacey in 1900.
Republicans have frequently championed provisions to expand and
strengthen the Act, including the Reagan-era addition of
criminal penalties in response to major organized crime
smuggling.
Most recently, the 2008 amendments have revived the
domestic timber industry and reduced illegal logging
internationally, and they were supported strongly by the Bush
Administration and passed this Committee by unanimous consent.
It has helped to stop illegal trade in timber, wildlife, and
other natural resources. It is one of our greatest conservation
laws and protects domestic industries. Stemming the tide of
illegal wood translates to a billion dollars of increased
revenue here in the United States every year. But now, the
times, they are a-changin'.
Both bills we are considering today will significantly
weaken, or outright destroy these benefits, but while H.R. 3210
focuses on the 2008 amendments, H.R. 4171 targets the entire
Lacey Act. H.R. 4171 would end criminal prosecution for
violating the Act. It would excise all references to foreign
law. The law also says that Fish and Wildlife agents can't
carry a gun while enforcing the law, even when they are working
in remote areas where many of the individuals involved in
illegal wildlife trafficking also participate in drug
trafficking, human trafficking, and other forms of organized
crime.
My Republican colleagues who defend the right to bear arms
would disarm law enforcement officers charged with protecting
endangered bears and other wildlife. Someone claimed that we
should shred up the Lacey Act just so guitar players can shred
on illegally sourced instruments, that if you want to play
Norwegian Wood, you shouldn't fret about where your guitar's
wood originated. Well, some of our Nation's best musicians
disagree.
Today we will hear from Adam Gardner, the frontman for the
Boston-based band, Guster. He is a graduate of Tufts, which is
in my district, and has dedicated his career to ensuring that
musical tours keep in better harmony with our environment.
Today he is releasing a pledge of support for the Lacey Act
signed by Willie Nelson, Bonnie Raitt, Dave Matthews Band,
Maroon 5, Jason Mraz, and many others. Mr. Chairman, I ask for
unanimous consent to submit for the record text from this
pledge which has been signed by those musicians.
Dr. Fleming. Without opposition, so approved.
REVERB
386 Fore St. Suite 202
Portland, ME 04101
207.221.6553
718.228.7509
[email protected]
ReverbRock.org
Turn Up The Volume On Illegal Logging
Widespread illegal logging is placing at risk the wood we treasure
in our musical instruments, and thus the future of music as we know it.
As musicians dedicated to our art and to protecting the earth's natural
resources, we call on everyone involved in the sourcing, crafting and
production of musical instruments to join us in our commitment to
eliminating all trade in illegally logged timber and forest products.
We will not buy a new instrument without asking where the wood comes
from and if it was harvested legally and sustainably.
We support the Lacey Act and other laws that prohibit trade in
illegally sourced wood and we oppose the efforts currently underway to
weaken the Lacey Act. We urge lawmakers, suppliers and craftsmen to
ensure that our art has a positive impact on the environment rather
than contributing to forest destruction. We call on our fellow
musicians to do the same.
Signed,
Bonnie Raitt
David Crosby
Willie Nelson
Maroon 5
Dave Matthews Band
Jack Antonoff, F.U.N.
Jason Mraz
Bob Weir
Bare Naked Ladies
Brad Corrigan, Dispatch
Pat Simmons, Doobie Brothers
Ray Benson, Asleep at the Wheel
The Cab
Of a Revolution(O.A.R)
Ryan Dobrowski, Israel Nebeker, Blind Pilot
Guster
Reverb
Razia Said
______
Mr. Markey. We know that slash and burn techniques are
destroying the Amazon, and now many are saying we should also
burn through international forests to make guitars for Slash.
These musicians reject that notion. Over the years, these
artists have gathered to sing ``We Are the World.'' They have
said that they ``Ain't Gonna Play Sun City'' in apartheid South
Africa. They have pushed for Farm Aid to assist oppressed world
communities, and yet again these artists can see the forest for
the illegal trees and are rejecting this latest attack against
our bedrock conservation laws.
I would like to thank my colleagues for calling this
hearing. I am confident that by exploring these two bills
further, we can all come to the conclusion that we should stand
by the Lacey Act and soon be singing from the same songbook on
this matter. I thank you, Mr. Chairman. I thank my colleagues
for coming to this Committee today to testify on this very
important issue. I yield back the balance of my time.
Dr. Fleming. I thank the gentleman, Mr. Markey.
[The prepared statement of Mr. Markey follows:]
Statement of The Honorable Edward J. Markey, Ranking Member,
Committee on Natural Resources
While there may never be an answer to the age old question of
whether a tree falling in an empty forest makes a sound, today we ask
another question: if a tree is illegally cut down in a forest, and made
into a guitar, do we make a sound about it? Is undermining a bedrock
law the right tone for us to set, especially if it threatens domestic
timber industries?
Throughout its 112 years the Lacey Act has enjoyed strong bi-
partisan support. The original bill was proposed by Republican John
Lacey in 1900. Republicans have frequently championed provisions to
expand and strengthen the Act, including the Reagan era addition of
criminal penalties in response to major organized crime smuggling. Most
recently, the 2008 amendments that revived the domestic timber industry
and reduced illegal logging internationally were strongly supported by
the Bush administration and passed this committee by unanimous consent.
It has helped to stop illegal trade in timber, wildlife, and other
natural resources. It is one of our greatest conservation laws, and
protects domestic industries. Stemming the tide of illegal wood
translates to a billion dollars of increased revenue here in the U.S.
every year.
But now, the times they are a-changing.
Both bills we are considering today will significantly weaken, or
outright destroy, these benefits. But while H.R. 3210 focuses on the
2008 amendments, H.R. 4171 targets the entire Lacey Act.
H.R. 4171 would end criminal prosecution for violating the act. It
would excise all references to foreign law. The law also says that Fish
and Wildlife agents can't carry a gun while enforcing the law, even
when they are working in remote areas where many of the individuals
involved in illegal wildlife trafficking also participate in drug
trafficking, human trafficking, and other forms of organized crime. My
Republican colleagues, who reflexively defend the right to bear arms,
would disarm law enforcement officers charged with protecting
endangered bears and other wildlife.
Some will claim that we should shred up the Lacey Act just so
guitar players can shred on illegally-sourced instruments. That if you
want to play ``Norwegian Wood'', you shouldn't fret about from where
your guitar's wood originated.
Well, some of our nation's best musicians disagree. Today we will
hear from Adam Gardner, the frontman for the Boston-based band Guster.
He's a graduate of Tufts, which is in my district, and has dedicated
his career to ensuring that musical tours keep in better harmony with
our environment. Today, he is releasing a pledge to support the Lacey
Act, signed by Willie Nelson, Bonnie Raitt, Dave Matthews Band, Maroon
5, Jason Mraz [Mur-AZ] and many others. Mr. Chairman, I ask for
Unanimous Consent to submit for the record text from this pledge, which
has been signed by over 40,000 musicians, bands, and music
organizations.
We know that slash and burn techniques are destroying the Amazon,
and now the Republicans are saying we should burn through international
forests to make guitars for Slash. These musicians reject that notion.
Over the years, musicians have gathered to sing ``We Are the
World.'' They have said they ``ain't gonna play Sun City'' in apartheid
South Africa. They have pushed for Farm Aid to assist depressed rural
communities. And yet again, these artists can see the forest for the
illegal trees, and are rejecting this latest attack against our bedrock
conservation laws.
I'd like to thank my colleagues for calling this hearing. I am
confident that by exploring these two bills further we will all come to
the conclusion that we will stand by the Lacey Act, and soon be singing
from the same songbook on this matter.
______
Dr. Fleming. Like all witnesses, your written testimony
will appear in full in the hearing record, so I ask that you
keep your oral statements to 5 minutes, as outlined in our
invitation letter to you and under Committee Rule 4(a). Our
microphones are not automatic, as you know, so please press the
button when you are ready to begin, and just parenthetically,
we have a series of votes coming up in about 20 to 30 minutes,
so our main goal, apart from hearing from our fantastic
witnesses, is to get through them before our vote is called. So
that is one of the things we are going to be working for.
And of course, as you know, the lights, the way they work
here is 4 minutes on green, 1 minute on yellow, and then when
it turns red to conclude your remarks.
I would now like to welcome today's witnesses on panel one,
Senator Rand Paul of Kentucky, thank you, sir, Congressman Jim
Cooper of Tennessee, Congressman Earl Blumenauer of Oregon,
thank you, and Congressman Paul Broun of Georgia.
Senator Paul, you are now recognized, sir, for 5 minutes.
STATEMENT OF THE HON. RAND PAUL, A SENATOR IN CONGRESS FROM THE
STATE OF KENTUCKY
Senator Paul. Thank you, Chairman Fleming, and thank you
for inviting me over here to talk about this important issue.
You know, when I first heard about the raid at Gibson Guitars,
I was appalled, you know, that this could happen in the United
States of America, that we would send in Federal agents from
the Fish and Wildlife with automatic weapons to invade a
company that hires, you know, 2,800 people around our country.
These are law-abiding people that are making guitars, and there
is no grizzly bears in downtown Nashville or in Gibson Guitar
that we need to be concerned with.
I was aghast when I learned that what they were accused of
was not even breaking a U.S. law, they are accused of breaking
a foreign law. The more we looked into this, I was then
incensed to find out that the foreign law they are accused of
breaking has nothing to do with conservation, has nothing to do
with the rain forest, that all that hyperbole about rain
forests and conservation has nothing to do with the issue here.
They are accused of breaking an Indian labor law.
This is a law that says the wood has to be finished in
India. Same wood can come here. They just want the jobs over in
India and not over here. And they have actually said in their
legal pleadings that if Gibson Guitar will finish the wood over
there, they won't be in violation. So if we send the jobs that
we have in Nashville over to India, everything is fine.
This is ridiculous. I could not believe that we have a law
on our books that says we are to obey all foreign laws. How can
that possibly be an American law and how can that possibly be
constitutional? Not just all past foreign laws. We have agreed
to obey all future foreign laws.
There was a case a few years ago of two fishermen off the
coast of Florida, Abner Schoenwetter and David McNab. They got
6 years in prison for breaking a law that wasn't a U.S. law,
but for breaking a Honduran fishing regulation. There is
something from the tradition of due process that says you have
to have fair notice. It comes out of our common law tradition.
How are you supposed to have fair notice of a Honduran law?
What if you don't speak Spanish? What if you don't speak
Mandarin and it is a Chinese fishing regulation?
We are expected to obey all the laws of the entire world?
It really smacks at our sovereignty, it smacks at the concept
that we create the laws in our country and that we are of any
importance here, that we are going to agree to accept all past
and future laws of foreign countries?
So I think really this is something that is long overdue.
It really grieves me that we put two people in jail for 6 years
for breaking the laws of a foreign country. In their case, the
Honduran government actually came and testified on their behalf
and said they hadn't broken the laws. One of the laws that they
were accused of breaking was that the fish were not in
cardboard, they were in plastic. You know, to put someone in
jail for that, you can be put in jail a year for each one of
these misdemeanor crimes. What if you brought in 30,000 lobster
and they found 10,000? You could get 10,000 years in prison. It
is out of control. It is outrageous, and we need to do
something to stop it.
Really, you need to say that, look, if we are in favor of
the environment, and I am, and you want to protect against
illegal logging or you want to protect certain species, if you
don't want people cutting off the horns of a rhinoceros and
importing it, make a law. That is what we are here for. Make
the law, but it would then be a U.S. law. But don't say that we
are going to accept all the laws of Kenya or we are going to
accept all the laws of South Africa. That is absurd on its
face, it is Pandora's Box, we have gone too far.
There are now 4,500 Federal crimes. The Constitution only
authorizes us to deal with four crimes--treason,
counterfeiting, and a couple of other crimes, laws against
Nations, but it doesn't authorize us to be involved in all of
this. We can have some restrictions on importation, but I see
no reason to have criminal penalties.
Our bill is very simple. We get rid of all reference to
obeying foreign laws, which doesn't do anything to the Lacey
Act. You still have restrictions in the Lacey Act. And if you
need more, pass them, but don't obey foreign laws, and it says
that we should have civil penalties, not criminal penalties. I
don't think we should be putting Americans in jail for this.
Thank you, Mr. Chairman. I yield back my time.
Dr. Fleming. Thank you, Senator. That is very compelling
testimony on your part, and really eye opening. I would imagine
most people in this room would not even be aware of some of the
things that you bring forward today.
[The prepared statement of Senator Paul follows:]
Statement of The Honorable Rand Paul,
a U.S. Senator from the State of Kentucky
Chairman Fleming, Ranking Member Sablan, and distinguished Members
of the Committee on Natural Resources, I am honored to be here today to
urge the House and Senate to move forward on the Freedom from Over-
Criminalization and Unjust Seizures Act of 2012--the FOCUS Act (S. 2062
& H.R. 1471).
Congressman Broun and I introduced companion bills in the Senate
and in the House because of our shared concern regarding a dangerous
law called the Lacey Act. The FOCUS Act makes significant revisions to
the Lacey Act, revisions that we believe are necessary to prevent
Americans from having their businesses raided by armed federal agents,
their property seized, and even being sent to federal prison.
I refer to the Lacey Act as ``dangerous'' because of the ways in
which it has already wreaked havoc in the lives of many innocent
Americans. The Lacey Act serves as a high-profile and frightening
example of overcriminalization. Victims include Abner Schoenwetter and
David McNab, who spent years in federal prison for ``violating''
Honduran fishing regulations that the Honduran government itself argued
were invalid.
Most recently, just this past August, Henry Juszkiewicz, the
Chairman and CEO of Gibson Guitar Corporation, had his company raided
by armed federal agents. A half million dollars worth of Mr.
Juszkiewicz's property was seized, along with guitars and computer hard
drives. His factory was shut down for a day, and his employees were
ordered to go home. All this was done to him because he allegedly
violated the Lacey Act, yet the Department of Justice has yet to file
any formal charges against him.
In my testimony today, I will first provide a brief background
regarding the history of the Lacey Act. I will then discuss the ways in
which I believe this law violates the original intent of the
Constitution, and will summarize the revisions the FOCUS Act makes to
the Lacey Act. I will conclude with a discussion of the manner in which
the FOCUS Act relates to my overall concern with the ever-growing
threat of overcriminalization.
I. Background
The Lacey Act is a conservation law that attempts to prohibit
trafficking in ``illegal'' wildlife, fish and plants. The original law
was passed in 1900 for the purpose of protecting against interstate
poaching.\1\ Congress later amended and expanded the Lacey Act to make
it a crime to import or take any wildlife, fish or plants ``in
violation of any foreign law.'' \2\ Since its passage in 1900,
subsequent amendments (in 1935, 1969, 1981, 1988, and most recently,
2008) have produced what today is an extremely broad and vague law that
contains harsh criminal penalties.
---------------------------------------------------------------------------
\1\ Act of May 25, 1900, Ch. 553, 31 Stat. 188 (codified as amended
at 16 U.S.C. Sec. Sec. 3371-78).
\2\ 16 U.S.C. Sec. 3371(d), Sec. 3372(a)(2)(A) & (B),
Sec. 3372(a)(3)(A), and Sec. 3373(d).
---------------------------------------------------------------------------
As Paul Larkin, Senior Legal Fellow at the Heritage Foundation
explains, ``[t]he Lacey Act would not raise concern if the only penalty
were a civil fine, but the law authorizes up to one year's imprisonment
for every violation of the act. A one-year term of confinement may not
seem onerous (unless, of course, you have to serve it), but a
combination of one-year sentences could add up quickly. For example, if
each fish taken in violation of the act were to constitute a separate
offense, a fisherman could wind up with a three-or four-figure term of
imprisonment just by bringing aboard one net's worth of fish.'' \3\
---------------------------------------------------------------------------
\3\ Paul J. Larkin, Jr., Defanging the Lacey Act: The Freedom from
Over-Criminalization and Unjust Seizures Act of 2012, The Heritage
Foundation Center for Legal & Judicial Studies, No. 78, at 2 (March 16,
2012).
---------------------------------------------------------------------------
Notably, the original Lacey Act of 1900 contained a penalty ``not
exceeding two hundred dollars,'' and there was no provision imposing
jail or prison time.\4\ When the Lacey Act was significantly amended in
1981--an amendment that expanded the potential penalties to allow for
felony criminal convictions--a representative of the National Rifle
Association specifically voiced civil liberties concerns with the
changes, stating that his ``first concern [wa]s with the broad
expansion of criminal liability.'' \5\
---------------------------------------------------------------------------
\4\ Act of May 25, 1900, Ch. 553, 31 Stat. 188 (codified as amended
at 16 U.S.C. Sec. Sec. 3371-78).
\5\ Proposed Amendments to the Lacey Act of 1981, 97th Cong. 227
(March 18, 1981) (testimony of Neal Knox).
---------------------------------------------------------------------------
II. The Lacey Act is Unconstitutional
I believe that the Lacey Act in its current form violates our
Constitution in a couple significant ways. First, its broad and
unspecific delegation of congressional power to foreign governments
violates Article I of the Constitution, which vests all legislative
powers in the United States Congress alone. By making it a federal
offense to import fish, wildlife, or plants ``in violation of any
foreign law,'' Congress essentially delegates law-making authority to
other nations.\6\
---------------------------------------------------------------------------
\6\ Although this argument has been rejected by various circuit
courts, it has never been squarely presented before the U.S. Supreme
Court. See, e.g., United States v. Lee, 937 F.2d 1388, 1393-94 (9th
Cir.1991) (rejecting a delegation challenge to the Lacey Act).
---------------------------------------------------------------------------
Second, the Lacey Act is unconstitutionally vague, and fails to
satisfy basic due process requirements of fair notice. As the Heritage
Foundation notes, the Lacey Act in fact ``violates one of the
fundamental tenets of Anglo-American common law: that `men of common
intelligence' must be able to understand what a law means...The
criminal law must be clear not to the average lawyer, but to the
average person. Even if there were lawyers who could readily answer
intricate questions of foreign law--and do so for free--the criminal
law is held to a higher standard.'' \7\
---------------------------------------------------------------------------
\7\ Larkin, supra note 3, at 4.
---------------------------------------------------------------------------
Consider the practical effect of having a law such as the Lacey Act
on the books that makes it a federal crime to violate any fish,
wildlife, or plant law or regulation of any country in the world:
[N]o one should be held accountable under this nation's law for
violating a foreign nation's law. Laws come in all forms (e.g.,
statutes vs. regulations); in all shapes and sizes (e.g., the
Sherman Act vs. the Clean Air Act); and in all degrees of
comprehensibility (e.g., the law of homicide vs. the Resource
Conservation and Recovery Act). Different bodies have authority
to promulgate laws (e.g., legislatures, courts, and agencies);
to interpret them (e.g., the President or an agency's general
counsel); and to enforce them (e.g., city, state, and federal
law enforcement officers and prosecutors). And that is just in
America.
Foreign nations may have very different allocations of
governmental power, bureaucracies, and enforcement personnel.
Some will speak and write in English; some will not. Some will
make their decisions public; some will not. Some will have one
entity that can speak authoritatively about its own laws; some
will not. And different components of foreign governments may
change their interpretations of their own laws over time,
perhaps nullifying the effect of a prior interpretation, or
perhaps not.
It is sheer lunacy to assume that the average citizen can keep
track of such laws, let alone do so by him-or herself without a
supporting cast of lawyers--that is, assuming that the average
citizen could find a lawyer knowledgeable about the intricacies
of a particular foreign nation's law.\8\
---------------------------------------------------------------------------
\8\ Larkin, supra note 3, at 4.
---------------------------------------------------------------------------
A particularly tragic real-life example of the manner in which the
Lacey Act violates basic constitutional requirements of due process and
fair notice occurred with the convictions and imprisonment of Abner
Schoenwetter and David McNab. Schoenwetter and McNab were convicted and
sentenced to eight years in federal prison for violating Honduran
regulations regarding lobster importation. The regulation required that
the lobsters be packed in plastic bags, but Schoenwetter and McNab
instead packed them in boxes. On appeal, the Honduran government itself
filed a brief on Schoenwetter and McNab's behalf, arguing that the
regulation never even had the force of law in Honduras, yet the circuit
court refused to overturn the convictions.\9\
---------------------------------------------------------------------------
\9\ See United States v. McNab, 331 F.3d 1228, 1233, 1239-47 (11th
Cir. 2003). The McNab case is discussed extensively in the book, One
Nation Under Arrest: How Crazy Laws, Rogue Prosecutors, and Activits
Judges Threaten Your Liberty (2010) (Paul Rosenzweig & Brian W. Walsh,
eds.).
---------------------------------------------------------------------------
There are violent criminals who spend less time in prison than did
these two innocent men.
The FOCUS Act would alter the Lacey Act by removing all references
to ``foreign law.'' It would also remove the Lacey Act's criminal
penalties and substitute a reasonable civil penalty system. Lacey Act
violations with a market value of less than $350.00 would be subject to
a maximum penalty of $10,000.00, and other violations would be subject
to a penalty of up to $200,000.00. These changes would remove the
constitutional flaws inherent in the Lacey Act in its current form.
III. The Problem of Over-Criminalization
The Lacey Act is but one example of the ever-growing problem of
overcriminalization that we face in this country. Criminal law is
increasingly being used as a tool by our government bureaucracies to
punish and control honest businessmen attempting to make a living.
Historically, the criminal law was intended to punish only the most
heinous offenses that were known and understood by all people to be
inherently evil or wrongful, offenses such as murder, rape, theft,
arson, etc. Yet today, the criminal law is constantly used to punish
behavior such as fishing without a permit, packaging a product
incorrectly, or shipping something with an ``improper'' label.
The plain language of our Constitution specifies a very limited
number of federal crimes. But we have now moved so far away from the
original intent of our Constitution that we don't even know or have a
complete list of all the federal criminal laws on the books. There are
over 4,450 federal statutory crimes scattered throughout the U.S. Code.
And it is estimated that there are tens of thousands more crimes that
exist among all our federal regulations. But no one--not even criminal
law professors or criminal lawyers--actually knows the exact number
with certainty.\10\
---------------------------------------------------------------------------
\10\ See generally John S. Baker, Revisiting the Explosive Growth
of Federal Crimes, Heritage Foundation L. Memo. No. 26, June 16, 2008;
Criminal Justice Section, American Bar Association, The Federalization
of Criminal Law (1998). For an excellent and thorough analysis of the
serious problems posed to our nation by the proliferation of criminal
laws at the federal level, and the lack of adequate mens rea
requirements in the majority of these laws, see Brian W. Walsh and
Tiffany M. Joslyn, The Heritage Foundation and National Association of
Criminal Defense Lawyers, Without Intent: How Congress Is Eroding the
Criminal Intent Requirement in Federal Law (2010).
---------------------------------------------------------------------------
In addition to not knowing the exact number of federal crimes,
another serious problem is that many of the criminal statutes that have
been passed by Congress in recent years lack adequate mens rea
requirements. In other words, Congress passes laws that either
completely lack--or have an extremely weak--``guilty mind''
requirement, which means that someone charged under the statute could
be convicted of a federal offense when he or she simply made an honest
mistake, or did not possess the criminal culpability traditionally
necessary for a criminal conviction.
The Lacey Act is a frightening example of this trend of
overcriminalization. I urge my colleagues to support Congressman Broun
and me in our efforts to pass the FOCUS Act. As Justice Scalia recently
stated, ``We face a Congress that puts forth an ever-increasing volume
of laws in general, and of criminal laws in particular. It should be no
surprise that as the volume increases, so do the number of imprecise
laws...In the field of criminal law, at least, it is time to call a
halt.'' \11\
---------------------------------------------------------------------------
\11\ Sykes v. United States, 131 S. Ct. 2267, 2288 (2011) (Scalia,
J., dissenting).
---------------------------------------------------------------------------
______
Dr. Fleming. Next I would like to recognize Mr. Cooper from
Tennessee. You have 5 minutes, sir.
STATEMENT OF THE HON. JIM COOPER, A REPRESENTATIVE IN CONGRESS
FROM THE STATE OF TENNESSEE
Mr. Cooper. Thank you, Chairman Fleming. The bipartisan
legislation that my Republican colleagues, Mary Bono Mack and
Marcia Blackburn, and I have introduced is really very simple,
although the details of Lacey Act issues can be extremely
complex. Our legislation tries to correct several mistakes that
we think Congress made in 2008 when it passed the latest
amendments to the century-old Lacey Act. We are not trying to
undermine the Lacey Act or other environmental protections,
only to reduce the unintended consequences of the 2008
amendments. Many Members did not notice the 2008 drafting
errors because the Lacey amendments were a minor part of the
farm bill that year.
The following are three legislative goals which have broad
bipartisan support: Number one, rare wood products, such as
guitars that were purchased prior to May 22, 2008, should be
grandfathered so that musicians do not have to fear owning
them. They were purchased innocently, and their owners should
not be punished retroactively.
This is particularly important because due to the
interaction with the 2000 law involving drug dealers, musicians
cannot complain or cannot claim the innocent owner defense and
do not even have the right to file a complaint if the
government confiscates their instruments. This is a government
taking combined with a gag order.
Point number 2. Keep in place the Lacey Act ban on
importation of endangered wood and plant products after May 22,
2008. We support the prospective nature of the Lacey Act
because we are against illegal logging. We want to preserve
rare trees and plants so that future generations have the
chance to enjoy and benefit from them. Our bill is not a broad
overhaul of the Lacey Act, but a small surgical fix. It is
based on the belief that the Lacey Act is working but requires
a clarification to ensure musicians and folks like that can
keep their guitars.
Some have argued that this can be accomplished through
regulation, not legislation, but for years, we have waited for
agency regulators to clarify the 2008 amendments. They have
not. We should not delay any longer when Congress can pursue a
legislative course of action to help musicians and small
business owners.
Point number 3. Let's streamline the importation of legal
goods. There are countless wood and plant products that can be
harvested abroad in an environmentally sustainable fashion.
U.S. firms that depend on such supplies should not face
needless hassles importing these products. Likewise, a store
owner who unknowingly imports a guitar made from illegal wood
shouldn't be penalized the first time, but those firms and
individuals who knowingly violate U.S. laws on importing
endangered species should be severely punished.
There has been a lot of unnecessary confusion about our
attempts to improve the Lacey Act. For example, there is a
pending investigation of a company located in my congressional
district, Gibson, which has received a great deal of publicity.
Our legislation does not affect that case nor any other pending
investigation.
Months before the latest Gibson investigation, a very
prominent Nashville musician, Vince Gill, had been quoted in
Newsweek Magazine pointing out the risks that he took in
traveling with his old guitar to perform in concerts. Helping
musicians like Vince Gill and Ricky Skaggs is the primary
impetus of our legislation because all Americans have the
constitutional right to travel. Musicians are denied that right
if they cannot travel with their old instruments.
Another confusion in the legislation comes from American
distaste for foreign law. H.R. 4171, the FOCUS Act, makes a
strong ideological statement but does nothing to protect
musicians or other owners of pre-2008 products. It eliminates
criminal penalties for violation of any foreign law with regard
to the Lacey Act which harms efforts to curb illegal logging.
Our bill does not require that we obey foreign law, but treats
foreign law as data to be included in an accessible U.S.
database to streamline the importation process and help ensure
compliance. U.S. agencies retain the discretion to state the
requirements that U.S. importers and owners should follow.
Mr. Chairman, I ask you to help us change the unintended
consequences of the 2008 Lacey Act amendments. Without your
help, not only are musicians and music stores in jeopardy, but
other legitimate businesses such as antique dealers and lumber
importers. We can help these innocent people without harming
the worthy environmental goals of the Lacey Act. We can have
healthy forests and legal guitars. Thank you, Mr. Chairman.
Dr. Fleming. I thank the gentleman for his testimony.
[The prepared statement of Mr. Cooper follows:]
Statement of The Honorable Jim Cooper, a Representative
in Congress from the State of Tennessee
Chairman Fleming and Ranking Member Sablan, thank you for allowing
me to testify to you today regarding H.R. 3210, the RELIEF Act.
The bipartisan legislation that my Republican colleagues, Mary Bono
Mack and Marsha Blackburn, and I have introduced is really very simple,
although the details of Lacey Act issues can be extremely complex. Our
legislation tries to correct several mistakes that we think Congress
made in 2008 when it passed the latest amendments to the century-old
Lacey Act. We are not trying to undermine the Lacey Act or other
environmental protections, only to reduce the unintended consequences
of the 2008 amendments. Many members did not notice the 2008 drafting
errors because the Lacey amendments were a minor part of the farm bill
that year.
The following are our three legislative goals, which have broad
bipartisan support:
1. Rare wood products such as guitars that were purchased
prior to May 22, 2008 should be grandfathered so that musicians
do not have to fear owning them. They were purchased
innocently, and their owners should not be punished
retroactively. This is particularly important because, due to
interaction with a 2000 law involving drug dealers, musicians
cannot claim the innocent owner defense, and do not even have
the right to file a complaint if the government confiscates
their instruments. A government taking is combined with a gag
order.
2. Keep in place the Lacey Act ban on the importation of
endangered wood and plant products after May 22, 2008. We
support the prospective nature of the Lacey Act because we are
against illegal logging. We want to preserve rare trees and
plants so that future generations have the chance to enjoy and
benefit from them. Our bill is not a broad overhaul of the
Lacey Act, but a small surgical fix. It is based on the belief
that the Lacey Act is working, but requires a clarification to
ensure musicians can keep their guitars. Some have argued that
this can be accomplished through regulation, not legislation.
For years, we have waited for agency regulators to clarify the
2008 amendments. They haven't. We should not delay any longer
when Congress can pursue a legislative course of action to help
musicians and small business owners.
3. Streamline the importation of legal goods. There are
countless wood and plant products that can be harvested abroad
in an environmentally sustainable fashion. U.S. firms that
depend on such supplies should not face needless hassles in
importing those products. Likewise, a store owner who
unknowingly imports a guitar made from illegal wood shouldn't
be penalized the first time. But those firms and individuals
that knowingly violate U.S. laws on importing endangered
species should be severely punished.
There has been a lot of unnecessary confusion involving our
attempts to improve the Lacey Act. For example, there is a pending
investigation of a company located in my congressional district,
Gibson, which has received a great deal of publicity. Our legislation
does not affect that case, or any other pending investigation. Months
before the latest Gibson investigation, a very prominent Nashville
musician, Vince Gill, had been quoted in Newsweek magazine pointing out
the risks he took in traveling with his old guitar to perform in
concerts. Helping musicians like Vince Gill and Ricky Skaggs is the
primary impetus of our legislation because all Americans have the
constitutional right to travel. Musicians are denied that right if they
cannot travel with their old instruments.
Another bit of confusion comes from American distaste for foreign
law. H.R. 4171, the FOCUS Act, makes a strong ideological statement but
does nothing to protect musicians or other owners of pre-2008 products.
It eliminates criminal penalties for violation of any foreign law with
regard to the Lacey Act, which harms efforts to curb illegal logging.
Our bill does not require that we obey foreign law but treats it as
data to be included in an accessible database to streamline the
importation process and help ensure compliance. U.S. agencies retain
the discretion to state the requirements that U.S. importers and owners
must follow.
Mr. Chairman, I ask you to help us change the unintended
consequences of the 2008 Lacey Act amendments. Without your help not
only are musicians and music stores in jeopardy, but other legitimate
businesses such as antique dealers and lumber importers. We can help
these innocent people without harming the worthy environmental goals of
the Lacey Act. We can have healthy forests and legal guitars.
Mr. Chairman, there are many technical details in our legislation
but all you need to know is that we did not draft our bill in haste or
without input from interested groups. We were guided by the three
Consensus Statements that were issued from 2009 to 2011 by all
interested stakeholders, from retailers, to musicians, to domestic
hardwood groups, to environmental organizations. You see, Mr. Chairman,
almost immediately after the 2008 Lacey Act amendments were passed,
most people realized that the amendments were deeply flawed. They
immediately set to work on a collegial basis to identify and solve
those problems by issuing Consensus Statements signed by all the
parties. There is no more helpful legislative guide than the
commendable volunteer efforts behind these Consensus Statements, which
we did our best to embody in our bill, H.R. 3210, the RELIEF Act.
Thank you again, Mr. Chairman and Ranking Member Sablan, and I look
forward to any questions you may have.
______
Dr. Fleming. Next, Mr. Blumenauer, you have 5 minutes, sir.
STATEMENT OF THE HON. EARL BLUMENAUER, A REPRESENTATIVE IN
CONGRESS FROM THE STATE OF OREGON
Mr. Blumenauer. Thank you, Mr. Chairman. I appreciate the
opportunity to testify in support of the Lacey Act amendments
and in opposition to legislation that would undermine the
success we have had in protecting the U.S. timber industry and
leading by example to strengthen sustainable forest practices
worldwide. I was a principal author of that in the House, I
worked with this Committee, spent countless hours with
industry, labor, environmental groups to have a piece of
legislation we think is very important.
The two bills under consideration today would not only
devastate the 2008 Lacey Act, but throw into question a century
of environmental protections while adding additional
uncertainty, and I am happy to work with this Committee or
anybody else to deal with any legitimate concerns or unintended
consequences. I am intrigued that somebody is doing 6 years in
prison for putting a fish in a plastic box. I will look forward
to finding the details about that.
But the Lacey Act, first passed in 1900, to prohibit trade
in endangered species, requires U.S. importers to ensure that
the products they import were not harvested illegally. In 2008,
the legislation I sponsored amended the Act to include
prohibition of trade in wood and wood products illegally
harvested in their country of origin. It is very
straightforward. Companies who import wood products need to
play by the rules in the country from which they import.
The amendments were needed because the American forest
products industry was losing over $1 billion a year to people
who cheat. For too long, developing countries were struggling
to do the right thing by implementing sustainable forestry
laws, and it was being undermined by pirates, and it isn't just
illegally harvested. These people were involved with
trafficking. The testimony before this Committee about the
violence, the bribery, the oppression goes beyond just a few
endangered species. And it had devastating consequences on the
environment, and the rate of illegal logging was going up, and
finally there was a consensus across industry groups, business
and labor, as I mentioned, that a legislative approach was
necessary to undermine that black market and to protect the
United States' economy, the environment, and local communities.
Now, the Bush Administration in 2002 started work on this,
noting the problems. I worked with the Bush Administration, one
of the officials who testified with me before this Committee on
the amendments. The Lacey Act actually is far broader than the
immediate impact on protecting American jobs and the forest
products industry. It was a perfect illustration of the United
States leading by example having a positive impact on the
strength of local environmental protection laws in developing
countries. Since 2008, illegal logging has been reduced by as
much as 25 percent worldwide. Taking their cues from the United
States, countries such as Japan, New Zealand, Australia, I
worked with the European Union doing legislation modeled on
this. It is having an effect.
The RELIEF Act and FOCUS Act would undermine these
successes. Proponents claim that these offer technical
corrections, but they would move an entire global market back
in time. Both bills would remove important tools the Lacey Act
provides for investigators, law enforcement officials, and
companies who care about where their products come from, and
that is actually most of the people and probably most of the
performers.
That is why the bills do not represent the consensus
statements and are opposed by a broad coalition of
stakeholders, including the League of Conservation Voters, the
Hardwood Federation, American Forest and Paper Association, the
Sierra Club, and the United Steelworkers. When did you ever see
a coalition like that united? Implementation takes time and
cooperation. We need to work together. I am happy to deal with
refinement. But it is very, very important that we not
undermine it.
With all due respect, there is no performer that is being
prosecuted for carrying an instrument to a city that might have
been prior to that. In fact, it has been abundantly clear that
there is no intent by USFWS to enforce it on the individual
level and it has never happened. There is no need to eliminate
the notion of first-time penalties in the exercise of due care.
For 4 decades this has been the standard in the Lacey Act, and
other businesses have been able to deal with it.
And last but not least, I would have been happy to work
with my friend, Mr. Cooper; we are two doors down. We have
never talked about it before. I am happy to work with him to
clarify this ambiguity. Mr. Chairman, I will conclude my
remarks. I would like unanimous consent, however, to enter into
the record the statement from a broad coalition of
environmental groups. I would like unanimous consent to enter
into the record a statement from the United States Forest
Products Industry, including the American Forest Foundation,
American Forest and Paper Association, American Hardwood
Council, the Hardwood Federation, Indiana Hardwood Lumber
Association, Kentucky Forest Owners Association, State Lakes
Lumber Association, National Alliance of Forest Owners, the
National Hardwood Lumber Association, and the Southeastern
Lumber Manufacturers. And then, last but not least, the effect
of the proposed ``RELIEF Act,'' on the Lacey Act, I would like
to have entered into the record.
Dr. Fleming. Without objection, so ordered.
Mr. Blumenauer. Thank you. Thank you for your courtesy.
Dr. Fleming. We are down under the 8-minute point, so we
will go ahead and recess. Would you, Dr. Broun, be able to join
us immediately after votes? We will get your testimony.
Mr. Broun. I would be happy to, Mr. Chairman.
Dr. Fleming. So we will be happy to get your testimony. We
are now recessed until voting.
[Recess.]
Dr. Fleming. OK, the Committee will come to order. We will
resume with Dr. Broun, so Dr. Broun, sir, you have 5 minutes.
STATEMENT OF THE HON. PAUL C. BROUN, A REPRESENTATIVE IN
CONGRESS FROM THE STATE OF GEORGIA
Mr. Broun. Thank you, Chairman. I greatly appreciate your
holding a hearing on this important issue, and my bill, H.R.
4171, the Freedom From Overcriminalization and Unjust Seizures
Act or FOCUS Act of 2012. I greatly appreciate Senator Rand
Paul, my dear friend, for being a leader on this issue in his
bill, which is a companion bill. It is Senate Bill 2062. I was
glad that he was here to testify along with others on this Act.
When the Lacey Act was first signed into law in 1900, it
was primarily designed as a measure to preserve wild game and
to make poaching a Federal crime. As originally enacted, it
imposed a maximum penalty of $200 for a violation. It did not
contain any provisions for arrest or imprisonment as it does
today. Over the years, and most recently through the changes in
1981 and 2008, the Lacey Act has become the poster child for
how the Federal Government abuses its power and has developed a
system of sweeping criminalization.
The Lacey Act is no longer about conservation. American
citizens now face prosecution based upon foreign laws and
regulations that are only concerned with many things such as
labor management relations, minimum wage rules or with tax
laws, and those can be very ambiguous in nature. U.S. importers
have been turned into policemen who are responsible for knowing
a myriad of foreign laws and regulations that are simply
impossible to keep track of those. Even worse, importers face
the threat of criminal prosecution regardless of whether or not
they intended to violate a foreign law.
As a practical matter, the Lacey Act delegates lawmaking
authority to foreign governments and foreign government
officials. We are subjugating American citizens to foreign law,
whether they are there in the foreign country or here in this
one. And it is an attack upon our sovereignty, as Senator Rand
Paul mentioned in his testimony.
These officials in foreign countries are neither legally
accountable in U.S. courts nor politically accountable to the
U.S. electorate. This delegation of congressional power to
foreign governments and foreign officials raises serious
questions under Article I of the U.S. Constitution. It also
makes little sense as a matter of Federal criminal justice
policy. Furthermore, it allows U.S. officials to apply foreign
laws in cases where the accused might not even have been aware
of the law that they allegedly violated.
Most of the glaring abuses of the Lacey Act took place in
the case brought against David McNab and Abner Schoenwetter.
These were two businessmen that were sentenced to 97 months in
prison for supposedly violating Honduran fishing regulations,
and what crimes did they commit deserving of such a harsh
sentence? They imported lobsters that had been transported in
plastic bags instead of cardboard boxes, as required by
Honduran law. Six years in jail for transporting lobsters in
plastic bags.
Additionally some of the lobster tails had fallen short of
the minimum length spelled out in Honduran law. Even more
disturbing, the government of Honduras told U.S. authorities
that these regulations were not even valid in Honduras. These
men were found guilty based on Honduran law that technically
wasn't even valid law.
This is insane and inane. Yet the Justice Department even
went forward with a case and the 11th Circuit Federal Court of
Appeals upheld these convictions. Most recently and infamously
this past August, armed Federal agents raided the Gibson Guitar
Corporation because of the wood that the company used to
manufacture its guitars was supposedly illegal. The government
seized more than a million dollars worth of property, shut the
factory down, and has yet to even file formal charges or drop
the case. Gibson Guitar has been a responsible corporate
citizen throughout its existence, and they support conservation
efforts. The company deserves better treatment from the Federal
Government.
It is often impossible for importers to know that certain
products may violate the Lacey Act, and therefore subject them
to prosecution. Even worse, foreign producers are often not
even held accountable for violating their own laws. It is
troubling that our U.S. Government holds U.S. citizens
responsible to foreign laws in this country.
I do not believe that Members of Congress intended to
delegate our constitutional power to foreign governments or to
overcriminalize innocent importers of minor violations. In
fact, that is what the Lacey Act does today. The Lacey Act
would change all this, and I thank the Chairman for holding
this hearing, and hopefully we can move forward to stop this
overcriminalization in this country and subjecting American
citizens to foreign laws and regulations. Thank you. I yield
back.
Dr. Fleming. I thank the gentleman.
[The prepared statement of Mr. Broun follows:]
Statement of The Honorable Paul C. Broun, a Representative
in Congress from the State of Georgia
I would like to thank Chairman Fleming and Ranking Member Sablan
for allowing this hearing today on H.R. 4171, the Freedom from Over-
Criminalization and Unjust Seizures (or FOCUS) Act of 2012. I would
also like to welcome Senator Rand Paul, my friend and author of the
Senate companion bill, S. 2062, to testify with me today on the need
for this critical legislation.
When the Lacey Act was signed into law in 1900, it was primarily
designed as a measure to preserve wild game and to make poaching a
federal crime. As originally enacted, it imposed a maximum penalty of
$200 for a violation, and did not contain any provisions for arrest or
imprisonment as it does today.
Over the years, and most recently through changes in 1981 and 2008,
the Lacey Act has become the poster child for how the federal
government abuses broad, sweeping criminalization. The Lacey Act is no
longer about conservation. American citizens now face prosecution based
upon foreign laws and regulations that are concerned only with labor-
management relations, with minimum wage rules, or with tax laws, and
that can be ambiguous in nature. U.S. importers have been turned into
policemen, who are responsible for knowing a myriad of foreign laws
that are simply impossible to keep track of. Even worse, importers face
the threat of criminal prosecution regardless of whether they intended
to violate a foreign law and regardless of the reasonableness of their
actions.
As a practical matter, the Lacey Act delegates lawmaking authority
to foreign governments and foreign government officials who are neither
legally accountable in U.S. courts nor politically accountable to the
U.S. electorate. This delegation of Congressional power to foreign
governments and foreign officials raises serious questions under
Article I of the U.S. Constitution. It also makes little sense as a
matter of federal criminal justice policy. Furthermore, it allows U.S.
officials to apply foreign laws in cases where the accused might not
even be aware of the law they allegedly violated.
One of the most glaring abuses of the Lacey Act took place in the
case brought against David McNab and Abner Schoenwetter, businessmen
who were sentenced to 97 months in prison for supposedly violating
Honduran fishing regulations. What crimes did they commit deserving of
such a harsh sentence? They imported lobsters that had been transported
in plastic bags instead of cardboard boxes, as required by Honduran
law. Additionally, some of the lobster's tails had fallen short of the
minimum length spelled out in Honduran law. Even more disturbing, the
government of Honduras told U.S. authorities that these regulations
were not even valid in Honduras. These men were found guilty based on a
Honduran law that technically wasn't even a valid law. Yet, the Justice
Department still went forward with the case, and the Eleventh Circuit
Federal Court of Appeals upheld the convictions.
Most recently and infamously, this past August, armed federal
agents raided the Gibson Guitar Corporation because of the type of wood
that the company used to manufacture its guitars. The government seized
more than a million dollars in property, shut the factory down, and has
yet to even file formal charges or drop the case. Gibson Guitar has
been a responsible corporate citizen throughout its existence and
supports conservation. The company deserves better treatment from the
federal government than it has received to date.
Yet, Gibson's case points to a larger issue faced by virtually all
American importers. It is often impossible for importers to know that
certain products may violate the Lacey Act and may therefore subject
them to prosecution simply because of the composition of materials in
those imports. Even worse, foreign producers are often not even held
accountable for violating their own country's laws. It is troubling
that our government holds U.S. importers responsible for foreign laws--
but the countries enacting these laws could care less about enforcing
them.
I do not believe that Members of Congress intended to delegate
congressional power to foreign governments or to over-criminalize
innocent importers for minor violations of foreign laws when they
passed this legislation. Unfortunately, that is where we stand today
with the Lacey Act.
The FOCUS Act removes every mention of foreign law from the Lacey
Act. It does so to protect the constitutional rights of our citizens.
The FOCUS Act also strikes the provision allowing a federal prison
sentence of up to 5 years, and reduces the maximum fine from $500,000
to $200,000. In addition, violations with a market value of less than
$350 would be subject to a maximum penalty of $10,000.
I believe that passage of the FOCUS Act would go a long way toward
correcting many of the abuses that have occurred. Our bill is a common-
sense step to protect law-abiding businesses and American citizens from
foreign laws and over-criminalization. Again, thank you for allowing me
to testify today and I look forward to your questions.
______
Dr. Fleming. That concludes our first panel. Ordinarily we
don't have a round of questions for Members, but if you would
like, Mr. Cooper, any additional comments since you are still
at the table or if any Members on the dais would like to ask
questions, we would be happy to entertain them.
Mr. Cooper. We are at your disposal, Mr. Chairman. These
are relatively technical matters, and I think we have struck a
bipartisan and fair compromise, so I would urge you to look at
our legislation, but I have no disrespect for my friend and
colleague from Georgia. There are different ways to approach
this, and we try to balance the interests and also keep this a
bill that could pass not only the House, but the Senate. That
is the goal here, to preserve the many, many good features of
the Lacey Act and cure some of these problems that have cropped
up, especially with the 2008 amendments.
Dr. Fleming. Mr. Faleomavaega?
Mr. Faleomavaega. Would the Chairman yield?
Dr. Fleming. Yes.
Mr. Faleomavaega. I just want to thank both of our
colleagues for their most eloquent statements, Mr. Cooper and
Mr. Broun, and we know the situation is not only complicated,
but contentious also in terms of what we should be doing, and,
Mr. Chairman, I look forward to working with you and your staff
in seeing how we can find some sense of reconciliation here
with the two proposed bills that Mr. Cooper and Mr. Broun just
proposed. I thank both gentlemen for appearing before our
Committee this afternoon. Thank you, Mr. Chairman.
Dr. Fleming. Yes, thank you. The gentleman yields back. I
will ask the second panel to step forward, and we thank you----
Mr. Broun. Could I make a statement, Mr. Chairman----
Dr. Fleming. Yes, yes, by all means.
Mr. Broun.--since we gave Mr. Cooper an opportunity.
Dr. Fleming. Sure.
Mr. Broun. I worked on some wildlife management projects in
Pakistan, and actually, the Lacey Act prevented good
conservation in protecting some wild goats--they are called
markhor in Pakistan--from having a good management program set
up, and it is a difference between central government Pakistani
law and what the tribal regions, which are totally autonomous
and have nothing to do with the central government, but the
Lacey Act and U.S. Fish and Wildlife Service under the Lacey
Act prevented establishing these wildlife management programs.
That is what the Lacey Act was geared to do, was to protect
wildlife, particularly those who are threatened and endangered,
and actually it is acting adverse to that.
Now, U.S. Fish and Wildlife Service, because of the--
particularly with the new additions to the Act, are
criminalizing people who want to establish good management
practices for wildlife, which is what the Lacey Act was geared
to do, and it is a travesty. We are harming those entities that
we were supposed to be protecting, and we are putting people in
jail for just minor violations of things that they have
absolutely no control over. And it needs to be altered. We need
to stop this criminalization, we need to alter the Act so that
it does have some flexibility, and we have none today.
I appreciate the Chairman holding these hearings and look
forward to moving forward, and hopefully we can find a solution
to stop this overcriminalization.
Dr. Fleming. I thank both you gentlemen today. Thank you
for your time and your testimony. We will ask the next panel to
step forward, please.
We are now ready for our second panel, our panel of
witnesses which includes Mr. Jeff Baxter, musician and
producer, former member of Steely Dan and the Doobie Brothers,
and former Chair of the Advisory Board for Missile Defense; Mr.
Barry Rutenberg, Chairman of the Board, National Association of
Home Builders; Ms. Laurie Everill, regional customs compliance
and operations manager for IKEA--North America; Ms. Donna A.
Harman, President and Chief Executive Officer, American Forest
and Paper Association; The Honorable Mark Rey, representing
Climate Advisers; Mr. Adam Gardner, frontman of Guster and
founder and Co-Director of Reverb; and Mr. Ray D. Rubinstein,
partner, Dinsmore & Shohl law firm, who is appearing on behalf
of the U.S. Chamber of Commerce's Institute for Legal Reform,
and not necessarily in that order. So we will have to work
around that.
Your testimony today will appear in full in the hearing
record, so I ask that you keep your oral statements to 5
minutes, as outlined in our invitation letter to you and under
Committee Rule 4(a). Our microphones are not automatic, so
please press the button when you are ready to begin, and you
may have heard me talk about the timing lights for our first
panel. You will have 5 minutes for your testimony. You will be
under a green light for 4 minutes, a yellow light for 1 minute,
which means you need to think about closing up, and then when
it turns red, we ask you to quickly conclude your remarks so we
can make sure and hear from everyone and get to questions.
It is my understanding, Mr. Baxter, that you will need to
leave after your testimony, and so we will, of course, excuse
you whenever you are ready to go. As I understand it, you have
led a fascinating life, and I recognize you for 5 minutes, and
thank you for your contributions to the music industry, sir.
STATEMENT OF JEFF BAXTER (H.R. 3210), MUSICIAN/PRODUCER, FORMER
MEMBER OF STEELY DAN AND THE DOOBIE BROTHERS, ADVISOR TO D.O.D.
AND I.C., FORMER CHAIR OF THE ADVISORY BOARD FOR BALLISTIC
MISSILE DEFENSE
Mr. Baxter. Thank you, sir. Mr. Chairman, members of the
Committee, my name is Jeffrey Baxter, also known as Skunk
Baxter. I have been a professional musician since the mid
1960s, most notably as a founding member of Steely Dan, a
Grammy-winning guitarist for the Doobie Brothers, among others
performed with Elton John, The Stray Cats, Barbra Streisand,
Rod Stewart, and a devoted player of iconic American-crafted
instruments, whether in concerts and recording studio or even
in my living room.
I have also built, customized, and repaired guitars for
over 50 years and have a great deal of practical knowledge as
to the special relationship between wood and musical
instruments.
What brings me here today is how unintended consequences of
a very good law have impacted our Nation's music industry and
can harm our cultural heritage, and I applaud the Committee for
holding this hearing today and want to give a special thanks to
Representatives Jim Cooper and Marcia Blackburn, who have been
leaders in advocating a pragmatic solution to this problem.
They represent the cradle of American music from Music Row in
Nashville to Memphis. I believe their bill, H.R. 3210, is a
good starting point toward making what I believe are necessary
changes in an important law.
In 2008 the Congress and President signed amendments to
strengthen the conservation aims to one of our seminal
environmental statutes, the Lacey Act. While most of the
American public has never heard of the Act, it has been a
cornerstone of conservation and stewardship policy for our
country for many years. What has not worked so well is Lacey's
unintended effect on the American music community. This
includes everyone from members of the New York Philharmonic to
the small retailer that rents violins to the local elementary
school. Guitars, violins, piano keys, clarinets, and other
common instruments are made using tropical hardwoods, usually
ebony or rosewood, known and referred to as tonal woods.
Musicians value these woods because of their durability and the
unique sound they help create. There is no domestically grown
substitute.
Yet under the current language of the Lacey Act,
questionable wood and wood products are treated as contraband
in the same way as cocaine and heroin. This strict
interpretation of illegality of musical instruments and other
wood products can generate serious liability for their owners,
even with no knowledge or reason to know of the product's
questionable past. Once an instrument is seized as contraband,
the musician or retailer has no legal recourse to regain the
product. There is no way for honest owners to demonstrate they
acted with due care or bought from a reputable source. Makes
sense for cocaine and heroin where there is no lawful reason to
possess the product but doesn't make sense if you have a
Steinway or a Stradivarius. I strongly recommend that consumers
are given the opportunity to challenge procedures and
forfeitures before an impartial judge.
This change in the Lacey Act will provide consumers with an
opportunity to prove they have exercised due care. If the judge
agrees, they would get their item or materials returned, and I
think we can all agree that this will provide the maximum
benefit to all concerned parties.
The second change would be to exempt products that were
made before Congress expanded the Lacey Act in 2008. I don't
think Congress intended to make antique mahogany desks or
vintage guitars illegal contraband when the recent amendments
were passed, but in reality, that is what has happened. There
is a legitimate fear that because the legality of the wood
source may be in question, it has become extremely difficult to
prove which items are or are not contraband. Selling a pre-2008
guitar on eBay or any other manner can make criminals out of
both the buyer and the seller and everyone else in the chain.
Finally, I have heard from guitar makers that the Lacey Act
is incredibly vague in what it defines as a violation.
Currently people who use foreign-sourced wood to make products
must not take possession of any wood that could have violated
foreign law. It doesn't matter whether the law has to deal with
protecting the environment or not, and it doesn't matter
whether the foreign country believes its laws have been
violated. If the wood is harvested, processed, finished or
shipped using any method that the U.S. Government alleges
violates foreign law, then that wood and the products from it
become contraband.
I agree that people who knowingly violate the law should be
punished, but people who follow the rules, exercise good
judgment, buy from reputable sources should not find themselves
in a Kafkaesque situation where no proof is needed and no
appeal is heard. To me this is contrary to the very ideals and
laws on which this country was founded. The law, as it stands,
presents an impossible burden not only for Steinway and Fender
and the other companies in the musical instrument business, but
also the small business artisans and the Federal agencies we
task to enforce their laws. Conservation efforts are best
served when they are focused, fair, and when limited resources
can be used to make the most impact.
I believe we can make two positive changes: One would be to
narrow the scope of laws to those that deal directly with the
environment and conservation. Another would be to create
programs that allow businesses to work in concert with the
government to ensure they are in compliance with the law prior
to bringing their products into the U.S. These are just some of
the ideas Congress should consider. We need exotic forests to
thrive, and we all want to see the Lacey Act be successful. For
too long the world has let the tropical forests be decimated
without protection. The best way to protect and ensure the
survival of all of the world's forests is to make more valuable
for a poor farmer to protect the forests than to clear it for
grazing land or uncontrolled harvesting.
I am not here to advocate overturning, eviscerating or
weakening the Lacey Act. Rather, I believe it should be made
more effective and focused while ensuring that law abiding
American musicians and American businesses can continue to
create music and create jobs without fear of accidentally
violating the Lacey law by identifying and correcting potential
violations before rather than after environmental harm is done.
American musicians and the music they make are national
treasures respected the world over. American music is a vital
component of American history, American soft power, and plays a
very important and positive role in the way the U.S. is
perceived by the global community. Making criminals out of
musicians as well as those who design, build, and sell musical
instruments serves no rational purpose whatsoever. The Lacey
Act is a good piece of legislation, but let's all work together
to make it as beneficial as can be for all concerned. Thank you
for your time and the opportunity to speak to you today, sir.
Dr. Fleming. Thank you, Mr. Baxter. Thank you for your
testimony.
[The prepared statement of Mr. Baxter follows:]
Statement of Jeff Baxter
Mr. Chairman and the members of the Committee, my name is Jeffrey
Baxter, also known as Skunk Baxter. I have been a professional musician
since the mid-1960s, most notably as a guitarist for Steely Dan and the
Doobie Brothers. Among others, I have performed with Elton John, The
Stray Cats and The Beach Boys, as a studio musician for over 40 years
have backed artists as varied as Barbara Streisand, Gene Simmons and
Dolly Parton, and have been a devoted player of iconic, American-
crafted instruments whether in stadium concerts before thousands of
people, in the recording studio or alone in my living room. I have also
built, repaired and customized guitars for over 50 years and have a
great deal of practical knowledge as to the special relationship
between wood and musical instruments.
What brings me here today are the how the unintended consequences
of a very good law have impacted our nation's music industry and could
harm our cultural heritage. I applaud the Committee for holding this
hearing today, and I want to give a special thanks to Representatives
Jim Cooper and Marsha Blackburn, who have been leaders in advocating a
pragmatic and bipartisan solution to the problem. They represent a
state that is the cradle of American music from the country capital of
Music Row in Nashville to the blues of Memphis' Beale Street. They've
shown an understanding of issues facing American musicians, and we all
appreciate it. I believe their bill, H.R. 3210, is a good starting
point toward making what I believe are necessary changes in an
important federal law.
In 2008, the Congress passed and the President signed amendments to
strengthen the conservation aims of one of our seminal environmental
statutes, the Lacey Act. While most of the American public has never
heard of the Act, it has been a cornerstone of conservation and
stewardship policy for more than century.
Originally passed to ensure that exotic bird species weren't wiped
out in the pursuit of feathers for hats, the Lacey Act has been
expanded to take in other species--most notably woods and other plants.
Make no mistake about it, this was a good change. The 2008 amendment
was a groundbreaking way to put a stop to the illegal, clear-cut
forestry that has decimated the world's vital tropical rain forests. By
many metrics, the law and others like it have worked to slow
deforestation and to help establish more sustainable forestry in
countries that had a lack of control.
But what has not worked so well is Lacey's unintended effect on the
American music community. This includes everyone from members of the
New York Philharmonic to the small retailer that rents violins and
guitars to the local elementary school band. Music Trades magazine
estimates that the American music industry employs approximately 65,000
people (including retail and manufacturing) and in 2011 generated
approximately $6.6 billion in revenue for the American economy. Based
on some surveys, there are approximately 9 to 10 million guitar players
in the U.S. alone.
Guitars, violins, piano keys, clarinets, and many other common
instruments are made using tropical hardwoods. Ebony and rosewood, two
of the most common woods used in the manufacture of musical
instruments, are not naturally available in North America. Musicians
value these woods because of their durability and the sound they help
create. As such they are known as ``tonal woods'' and, quite frankly,
there isn't a substitute for them in our business.
Yet under the current language of the Lacey Act, questionable wood
and wood products are treated as contraband, in the same way that
cocaine and marijuana are. But unlike cocaine, wood is not inherently
illegal; there are perfectly legal reasons to possess wood, and there
are none for cocaine. This strict liability treatment of musical
instruments and other wood products can generate serious liability for
their owners, even those with no knowledge or reason to know of the
product's questionable past. Put simply, once a government agency
seizes wood and plant products it claims were illegally harvested,
their owners face forfeiture of the products irrespective of the steps
they took before acquiring the product to determine its history and
legality.
Once an instrument is seized as ``contraband,'' the musician or
retailer has no legal recourse to regain the product on the basis of
his compliance efforts. There is no way for honest owners to
demonstrate that they exercised due care. I agree that, people who
knowingly violate the law should be punished. But people who follow the
rules, exercise good judgment, and buy from reputable sources should
not be put in a Kafka-esque situation where no proof is needed and no
appeal is heard. I strongly recommend that the Act be amended to allow
consumers the opportunity to challenge seizures and forfeitures under
the Lacey Act. This change will only provide consumers with an
opportunity to prove to an impartial judge that they exercised due
care. If the judge agrees, the consumer will be permitted to retain the
products; if not, the products will be subject to forfeiture. This
amendment will have no effect on the civil penalty or criminal
forfeiture and penalty provisions contained in the Lacey Act.
A second change that should be made is to exclude products that
were made before May 22, 2008, when the Lacey Act amendments were
enacted. I don't think Congress intended to make antique mahogany desks
or vintage guitars illegal contraband when the recent amendments were
passed, but that is what happened. Many people are worried that because
they cannot clearly demonstrate the ultimate sourcing of their
products, they could lose their valued instruments or wood inventory in
the event the law is retroactively applied. By providing clear legal
title to items that were legal up to the date of enactment you can
provide a great deal of certainty to musicians everywhere, many of whom
have played the same instrument for years and treasure them as an
integral part of the creative process
Finally, I have heard from luthiers--the people who make guitars--
that the Lacey Act is incredibly vague in what might be a violation.
Currently, people who use foreign sourced wood to make products must
not take possession of any wood that could have violated any foreign
law. It doesn't matter whether the law exists to deal with protecting
the environment or not and it doesn't matter whether any foreign
country believes that its own law was violated. If the wood was
harvested, processed, finished, or shipped using any method that the
U.S. Government alleges violated any foreign law then that wood, and
the products made from it, become contraband.
Digesting the encyclopedia containing every agricultural, labor,
export, transportation, taxation, or certification statute that might
deal with a plant or animal in every country in order to legally import
materials in conformity with Lacey is just too heavy a burden for any
business. Conservation efforts are best when they are focused and when
limited resources can be used to make the most impact.
I believe we can make two positive changes. One would be to narrow
the scope of laws to those that deal directly with the environment and
conservation. This would uphold the Lacey Act's conservation purpose,
while giving businesses a realistic metric with which to comply.
Another method would be to establish a voluntary pre-certification
program that would allow businesses to work with the U.S. Department of
Agriculture to ensure that their products or raw material are fully in
compliance with the law prior to importing them into the US. This
voluntary pre-certification would give industry clarity, while cutting
down on the enormous paperwork the government has to process. It would
also strengthen the true aims and spirit of the Lacey Act by
identifying and correcting potential violations BEFORE, rather than
AFTER, any environmental harm is done.
I would posit that these are just some of the ideas that Congress
should consider. As musicians, we need these exotic forests to be
sustainably managed and we want to see the Lacey Act succeed. For too
long the world let tropical forests be decimated without protecting
them as vital resources. The best way to ensure forest survival though,
is to make it more valuable for a poor farmer to protect the forest
than to clear it for grazing land. One of the ways to do that is for
musicians to continue to be able to buy legal and well-crafted guitars
and other instruments. We cannot play our part if we inadvertently make
instruments, and their inputs, into contraband.
I am not here to advocate overturning, eviscerating, or weakening
the Lacey Act. Rather, I think it could be made more effective and
focused, while ensuring that law-abiding American musicians and
American businesses can continue to create music and create jobs
without fear of accidentally violating Lacey. American musicians and
the music they create are national treasures, respected the world over.
American music is a vital component of American Soft Power and plays a
very important and positive role in the way the U.S. is perceived by
the global community. The Lacey Act is a good piece of legislation, but
let's work to make it better.
______
Dr. Fleming. Next, Mr. Rutenberg, you have 5 minutes, sir,
and make sure the microphone is close to your mouth.
STATEMENT OF BARRY RUTENBERG (H.R. 3210), CHAIRMAN OF THE
BOARD, NATIONAL ASSOCIATION OF HOME BUILDERS
Mr. Rutenberg. Mr. Chairman, the microphone isn't working.
Dr. Fleming. I think it is not on yet.
Mr. Rutenberg. May I exchange seats with the gentleman in
the center?
Dr. Fleming. Sure, absolutely, whatever is easier for you.
See, if Congress could make more compromises like this, I think
we would get a lot more done. It is a good first step. All
right, you have 5 minutes when you are ready, sir.
Mr. Rutenberg. Thank you, Chairman Fleming, Ranking Member
Sablan, members of the Subcommittee, and thank you for the
opportunity to testify today. My name is Barry Rutenberg, and I
am the Chairman of the Board of Directors for the National
Association of Home Builders and a home builder from
Gainesville, Florida. NAHB supports the goals of the Lacey Act.
We do not support illegal logging in anyplace at anytime. NAHB
also commends Representative Cooper for his proposed reforms of
the Lacey Act. Honest business owners must have the right to
seek the return of goods acquired through the exercise of due
care, and we thank you for initiating this important
discussion. NAHB believes that a more thorough examination of
this requirement and other provisions of the Lacey Act is
appropriate, and we are pleased that the Subcommittee is
looking into these issues.
NAHB is concerned the 2008 amendments created a number of
unintended consequences. Home builders and our customers are
now faced with the unrealistic requirement of divining the
origin and legality of the thousands of wood products we use.
There is no magic 8 ball for that. The liability placed on the
builder and the end user creates unnecessary uncertainty. It is
tough enough being a home builder these days, and the thought
that I could face government action for unknowingly using an
illegal wood product and not having access to courts to
challenge the government action is something no business should
face. With this in mind, it is of the utmost importance that
honest business owners, including home builders, have the right
to seek the return of goods acquired through the exercise of
due care under the Lacey Act.
Amending the Act to include reaffirmation of civil
forfeiture law provides an important liability protection for
the business community, and ultimately the consumer. U.S.
Department of Justice has virtually eliminated this important
defense for honest business owners through a broad
interpretation of the law. By deeming wood products that
violate Lacey contraband, innocent companies are left without
legal standing to challenge a government taking in court.
Coupled with a requirement that the U.S. Government enforce an
almost limitless set of foreign laws, builders and ultimately
consumers are left at great risk. The result is that the entire
supply chain dealing with imported wood products, including
builders and consumers, are held personally liable to certify
that the timber product did not come from plant material that
was taken, transported, possessed or sold in violation of any
foreign law. The way the law is currently structured leaves
wide open the entire chain of custody of a timber product,
including builders who have no way of knowing the origin of a
particular piece of lumber, a component of a cabinet, closet
door or crown molding to the details of an enforcement action.
Further, because our builders generally buy their products
through U.S. suppliers or importers, and all products that
enter the United States must pass through U.S. Customs, the
products have already gone through the required foreign
paperwork, documents, and permits to allow them to enter the
U.S. at the outset.
For the U.S. Government to later determine the products of
a component of a product violate the Lacey Act after its entry
into the U.S. is unfair and illogical. There is no reasonable
expectation that the supply chain should know when or if a
violation has occurred, much less the underlying laws that have
been violated. Holding a remodeler, for example, responsible
for knowing, much less understanding the laws of a particular
country where his or her wood cabinet was sourced is simply
unfair. I do not read foreign laws to my grandchildren when
they go to sleep at night.
To preserve the integrity of the Lacey Act, NAHB also
recommends that the law should be revised to be more focused
and transparent about which foreign laws may give rise to a
violation. By narrowing the scope of foreign laws covered by
the Lacey Act, such as those laws that promote the protection
or conservation of threatened or endangered plants or plant
products, there would be greater certainty about the law in the
supply chain's obligations.
H.R. 3210 represents an important first step, and we look
forward to working with Representative Cooper and the
Subcommittee to improve the bill as it moves through the
legislative process. Thank you again for the opportunity to
testify. I look forward to your questions later.
Dr. Fleming. Thank you, Mr. Rutenberg.
[The prepared statement of Mr. Rutenberg follows:]
Statement of Barry Rutenberg, Chairman of the Board,
on Behalf of the National Association of Home Builders
Introduction
Chairman Fleming, Ranking Member Sablan and members of the
Subcommittee on Fisheries, Wildlife, Oceans and Insular Affairs, I am
pleased to appear before you today on behalf of the National
Association of Home Builders (NAHB) to share our views on the 2008
Amendments to the Lacey Act (16 U.S.C. Sec. Sec. 3371, et seq.). We
appreciate the invitation to appear before the Subcommittee on this
important matter. My name is Barry Rutenberg, and I am the Chairman of
the Board for NAHB and a home builder and remodeler from Gainesville,
Florida.
NAHB represents more than 140,000 members involved in the home
building, remodeling, multifamily construction, property management,
subcontracting and light commercial construction industries. We are
affiliated with more than 800 state and local home builder associations
throughout the country, and since the association's inception in 1942,
NAHB's primary goal has been to ensure that housing is a national
priority and that all Americans have access to safe, decent and
affordable housing, whether they choose to buy or rent a home.
First, I want to say that NAHB supports the goals of the Lacey Act
and the prevention of trade in illegally harvested plant and plant
products. Unequivocally, we do not support illegal logging in any place
at any time.
Second, NAHB commends Representative Cooper for his earnest and
diligent efforts in proposing much needed reforms to the Lacey Act,
while at the same time, making efforts to improve and protect the
integrity of the law. H.R. 3210, the Retailers and Entertainers Lacey
Implementation and Enforcement Fairness Act or ``RELIEF Act'',
recognizes the essential need to hold harmless those who, unknowingly
and without any culpability, are found to be in possession of products
that run afoul of the Lacey Act. Honest business owners must have the
right to seek the return of goods acquired through the exercise of due
care, and we thank Representative Cooper for initiating this important
discussion.
Notwithstanding, NAHB believes that a more thorough examination of
this requirement and other provisions of Lacey is appropriate, and we
deeply appreciate the Subcommittee taking a judicious look into these
issues.
The Lacey Act and Implications on Affordable Housing
Prompted by a growing concern about interstate profiteering in
illegally taken wildlife, Representative John Lacey of Iowa introduced
the Lacey Act in 1900, producing America's first federal wildlife
protection law. The original law intended to conserve and protect
certain species of wildlife in the states. Through a series of
amendments over the last century and most recently in 2008, the current
Lacey Act has expanded to criminalize trade in protected species of
both plants, including wood products, and animals. Today, the Lacey Act
generally makes it unlawful for any person to import, export,
transport, sell, receive, acquire or purchase fish, wildlife, or plants
taken, possessed, transported, or sold in violation of any federal,
state, foreign, or Native American tribal law, treaty or regulation.
NAHB is concerned the 2008 Amendments created a number of
unintended consequences for downstream users. Creating uncertainty in
plant-based products harvested, produced or imported can have a
detrimental effect on home builders and their clients. By including an
extremely wide and elastic set of foreign laws that could potentially
form the basis of a violation, the 2008 Amendments left builders
unreasonably ignorant of the bounds their legal responsibilities. This
uncertainty is undeniably magnified absent a hold harmless provision
for honest business owners.
The ability to operate effectively in the home building industry
and to price a home competitively depends on the degree to which the
builder's overall costs are certain and predictable. Predictability is
of paramount importance as it allows builders to accurately estimate
and account for costs in building homes. Further, the more confidence a
builder has in pre- and post-construction costs, the more cost-
effective the home building process is, as well as the builder's
ability to pass those corresponding savings through to homeowners.
The building industry is vitally important in maintaining a healthy
economy. A strong housing sector provides a critical component of local
economic development. Housing creates jobs, increases the demand for
goods and services within a particular community, generates revenues
for local governments and provides affordable housing. Residential
construction provides significant income and jobs for local workers and
generates important local economic activity for residents, local
businesses and governments.
Construction activities have positive impacts by creating ongoing
beneficial impacts in communities as new home purchasers pay taxes, and
buy goods and services in the community. For example, NAHB estimates
the first-year economic impacts of building 100 typical single family
homes include $23.1 million in wage and net business income, $8.9
million in federal, state and local taxes, and 305 jobs.
This impact is of particular concern in the affordable housing
sector where relatively small price increases can have an immediate
impact on low to moderate income home buyers who are more susceptible
to being priced out of the market. As the price of the home increases,
those who are on the verge of qualifying for a new home purchase will
no longer be able to afford to purchase a new home. A 2012 priced-out
analysis done by NAHB illustrates the number of households priced out
of the market for a median priced new home due to a $1,000 price
increase. Nationally, this price difference means that when a median
new home price increases from $225,000 to $226,000, 232,447 households
can no longer afford that home.
Home builders are generally small business entrepreneurs. 82
percent of home builders build fewer than 25 homes a year, and 60
percent of NAHB's members build fewer than ten homes a year. Many of
these small-volume builders and subcontractors do not have the capital
to withstand the artificial price increases and price volatility of
trade restrictions. Increases in building material costs mean that
small builders may be disproportionately affected by more expensive
lumber, leading to fewer homes constructed and sold to downstream
purchasers.
Furthermore, U.S. trade laws give little consideration to the
interests of consumers and downstream industries. This bias has limited
the ability of American consumers to receive products and services of
the highest quality at the lowest cost, and of U.S. businesses to
provide jobs and increase production. It also encourages other
countries to adopt similar protectionist policies that limit the
choices of their citizens and opportunities for U.S. exporters.
The people who ultimately pay the cost of trade restrictions are
consumers--the homebuyers, renters and people remodeling their homes.
Consumers are rarely organized, and that makes them an easy target to
fund subsidies for special interests.
Lacey Act Recommendations
For these reasons, NAHB is specifically concerned about the
provisions in Lacey related to civil forfeiture law, in addition to the
seemingly limitless jurisdictional boundaries that could potentially
form the basis of a Lacey Act violation.
Modern day civil forfeiture law, the Civil Asset Forfeiture Reform
Act, was indeed contemplated by Congress as a part of the Lacey Act
through the 2008 amendments. Recognizing the need to hold harmless
those who exercised due care in the acquisition of wood and plant
products, Congress sought to exempt honest business owners, and
instead, provide the U.S. government more targeted tools to go after
egregious, knowing violators.
The U.S. Department of Justice, however, has virtually eliminated
this important defense for honest business owners through a broad
interpretation of the law. By deeming Lacey-violative wood and plant
products ``contraband'', innocent companies are left without legal
standing to challenge a government taking in court. Coupled with a
requirement that the U.S. government enforce an almost limitless set of
foreign laws, builders, and ultimately consumers, are left at great
risk.
The result is that the entire supply chain dealing with imported
wood products--including builders and consumers--are held personally
liable to certify that the timber product did not come from plant
material that was taken, transported, possessed or sold in violation of
any foreign law. The way the law is currently structured leaves wide
open the entire chain of custody of a timber product, including
builders who have no way of knowing the origin of a particular piece of
lumber, a component of a cabinet, closet door or crown molding, to the
details of an enforcement action.
Considering all of the components that may go into the construction
of a house, such as a set of kitchen cabinets, it quickly becomes clear
how daunting it would be to identify and track down the source for each
component of that final product. The sheer number of different sources
of wood that could be included in the finished home makes it nearly
impossible for a builder or remodeler to know with certainty where and
under what circumstances the individual components were sourced.
Further, because our builders generally buy their products through
U.S. suppliers or importers, and all products that enter the United
States must pass through U.S. Customs, the products have already gone
through the required foreign paperwork, documents and permits to allow
them to enter the United States at the outset. For the U.S. government
to later determine the products, or a component of a product, violate
the Lacey Act after its entry into the United States is unfair and
illogical. There is no reasonable expectation that the supply chain
should know when or if a violation had occurred, much less the
underlying laws that had been violated. Holding a remodeler, for
example, responsible for knowing, much less understanding, the laws of
a particular country where his or her wood cabinet was sourced is
simply irrational.
With this in mind, it is of the utmost importance that honest
business owners, including home builders, have the right to seek the
return of goods acquired through the exercise of due care. Amending the
Lacey Act to include reaffirmation of civil forfeiture law provides an
important liability protection for the business community and
ultimately the consumer.
To preserve the integrity of the Lacey Act and help advance its
policy objectives, NAHB also recommends that the law should be revised
to be more focused and transparent about which foreign laws may give
rise to a violation. By narrowing the scope of foreign laws covered by
the Lacey Act, such as those laws that promote the protection or
conservation of threatened or endangered plants or plant products,
builders would be provided with greater certainty about the law, their
obligations, and subsequently, be able to more accurately estimate and
account for costs in building homes.
Conclusion
NAHB commends the Subcommittee on Fisheries, Wildlife, Oceans and
Insular Affairs for examining the Lacey Act today. At a time when the
economy remains stagnant, it is wise to reconsider laws, such as the
Lacey Act, and their impact on American businesses. The century-old law
and its subsequent amendments are certainly ripe for meaningful reform.
NAHB also expresses deep appreciation to Representative Cooper,
who's RELIEF Act represents a positive step towards bringing the intent
of Lacey in line with the practical effects of its implementation. We
remain hopeful that with some clarifying language on the chain of
liability and scope issues, NAHB can fully support H.R. 3210 as it
moves forward in the legislative process.
______
Dr. Fleming. Next we have Ms. Everill. You have 5 minutes,
ma'am. Thank you.
STATEMENT OF LAURIE EVERILL (H.R. 3210), REGIONAL CUSTOMS
COMPLIANCE AND OPERATIONS MANAGER, IKEA--NORTH AMERICA
Dr. Fleming. The light is not coming on? OK. Yeah, we have
a technical problem.
Ms. Everill. Thank you. My name is Laurie Everill, and I
work for IKEA--North America in New Jersey. We at IKEA
appreciate the opportunity to speak today on the Lacey Act.
IKEA is one of the world's most recognizable brands and one of
the largest retailers of furniture and housewares in the United
States. We have a workforce of 16,000 workers, we operate 38
retail stores, five distribution centers, a service and a
trading office, and support a manufacturing facility all here
in the United States.
Incorporating good stewardship and sustainability into its
everyday business is one of IKEA's four corporate cornerstones.
Wood is IKEA's most important raw material. As such, IKEA has
been performing due care to create a sustainable forest
management program for over a decade. IKEA is directly impacted
by the Lacey Act, and we strongly support the law's objectives
to end illegal taking of trees and plants.
Notwithstanding IKEA's commitment to the Lacey Act, we
believe there are several challenges that we encourage Congress
to review. Our verbal testimony today will cover three issues:
The import declaration, due process, and the scope of foreign
laws and regulations. IKEA recognizes the importance of the
declaration to sustainability and enforcement; nevertheless,
IKEA has found that providing genus, species, and country of
harvest information on a transactional basis requires the
submission of a tremendous amount of data that is costly and
administratively burdensome for both importers and the
government while contributing little to the prevention of
illegal logging.
It is IKEA's opinion in its current form the declaration is
unsustainable long term and not the best use of resources in
the prevention of illegal logging. IKEA suggests that Congress
consider alternatives to the current declaration process that
can meet the needs of business, environmental, and enforcement
communities. The potential of a declaration for composite wood
products makes the requirement even more untenable as such
products are made by by-products such as sawdust, scraps, and
other remnants derived from other manufacturing processes.
While this type of material reuse is positive from a recycling
and a sustainability perspective, it makes the collection of
data for declaration purposes virtually impossible. IKEA
believes that the declaration requirements should not apply to
composite products until it is determined to be feasible,
practical, and effective.
The heart of the Lacey Act is the prohibition against the
importation of products containing illegally harvested wood or
plant material, which is enforced through criminal and civil
penalties and seizure and forfeiture of merchandise. Importers
must exercise due care to ensure their products do not contain
illegally harvested wood or plant material. The Lacey Act
amendments specifically state that seizures are governed by the
Civil Asset Forfeiture Reform Act, or CAFRA, which provides due
process for authorities to present their case and facts through
a legal process. However, in practice, the enforcing agencies
treat wood and plants alleged to be illegally harvested as
contraband. IKEA believes that Congress should clarify the
provisions to provide a legal means for importers to address
allegations, forfeitures, and seizures and preserve the rights
of appeal in a court of law.
The law defines illegal taking of trees or plants broadly,
and in practice, the definition is open to interpretation and
sweeps in laws and regulations having little or no connection
to the conservation of trees and plants. As a result, importers
have little clarity as to what foreign laws and regulations
would be applied under the Lacey Act. IKEA recommends that
Congress clarify the foreign laws and regulations to be
directed toward conservation of trees and plants.
To address these challenges, IKEA is looking for a new
legislative approach that effectively addresses the issues of
businesses and environmental organizations, stands the best
chance of generating broad bipartisan support, but does not
undermine the important goal to stop illegal logging. We
believe our recommendations will better achieve these
objectives by making enforcement of the law more targeted and
effective, encourage the adoption of strong compliance measures
within the industry, and advancing the policy goals of the law
to promote proper forest stewardship and conservation practices
around the world. We thank you, again, for the opportunity to
appear before you today.
[The prepared statement of Ms. Everill follows:]
Statement of Laurie Everill, Regional Customs Compliance and
Operations Manager, IKEA--North America
My name is Laurie Everill, and I work for IKEA-North America in
Westampton, New Jersey. My responsibilities as Regional Customs
Compliance & Operations Manager include ensuring company compliance
with the Lacey Act and other laws and regulations affecting IKEA's
import operations. As a member of both the National Retail Federation
and the Retail Industry Leaders Association, the two trade associations
representing the U.S. retail industry, we at IKEA appreciate the
opportunity to speak not only on behalf of our company, but also other
retailers at today's hearing on the Lacey Act Amendments regulating the
importation of wood and plant products.
With 325 stores in 41 countries and more than 1,000 suppliers in 53
countries, IKEA is one of the world's most recognizable retail brands.
IKEA is also one of the largest retailers of furniture and house wares
in the United States, where we operate 38 retail stores, five
distribution centers, a service facility in Pennsylvania, a trading
office in Texas, and support a manufacturing facility in Virginia.
IKEA's U.S. workforce totals 16,000 associates in a wide range of jobs
from product sourcing, manufacturing, sales and marketing to
warehousing, logistics, and legal compliance.
The IKEA vision is to create a better everyday life for the many
people. As a company with its roots in Sweden, IKEA has a long
commitment to policies and practices that advance the highest degree of
corporate social responsibility. Promoting and implementing good
environmental stewardship and sustainability into its everyday business
is one of IKEA's four corporate cornerstones.
Since many of the products we sell contain wood and plant material,
IKEA is directly impacted by the Lacey Act Amendments, and we strongly
support the law's objectives to end the illegal taking of trees and
plants throughout the world. We support Lacey as it promotes those
activities and efforts that IKEA has undertaken for over a decade and
it will create a level playing field amongst importers that are serious
about the prevention of illegal logging. IKEA sources 14.5 million
cubic meters of round wood equivalents from 51 countries, making wood
our most important raw material. As such IKEA has been performing due
diligence and traceability to prevent illegally harvested wood and
create a sustainable forest management program for over a decade and
several years before the passage of the Lacey Act Amendments in 2008.
Notwithstanding IKEA's commitment to comply fully with the Lacey
Act Amendments, we believe there are several challenges that we
encourage Congress to review and consider options to address. There are
four specific issues the retail industry believes require legislative
action, which, if undertaken, will improve the operation of the law,
make enforcement more effective, provide incentives for industry to
adopt robust due diligence measures in their supply chains, and help
better achieve the law's policy goals to end illegal logging.
Import Declaration
IKEA will not be recommending that the declaration requirement be
removed from Lacey Act Amendments as we recognize the importance to
sustainability and the value of importers knowing the type of wood used
and the origin of wood in their products. Nevertheless, it has become
apparent that there are some challenges with the declaration
requirement as it is written and IKEA believes Congress should improve
and streamline the import declaration requirement. IKEA has found that
providing genus, species and country of harvest information on a
transactional basis even for seemingly simple wood products requires a
tremendous amount of data to be submitted to the U.S. Government. These
submissions are costly and administratively burdensome for both
importers and the U.S. Government while achieving little to prevent
illegal logging. It is IKEA's opinion that, in its current form, the
Import Declaration process is unsustainable long term and not the best
use of resources in the prevention of illegal logging. IKEA suggests
that Congress consider alternative means of providing declaration
information and we would be willing to have further discussions on this
point to identify the best alternatives to meet the needs of
stakeholders in the business, environmental and enforcement
communities.
The potential requirement of a Lacey Declaration for composite wood
products (such as particle board and fiberboard) in the future makes
the requirement even more untenable because composite wood products are
generally made of byproducts such as sawdust, scraps, and other
remnants from other manufacturing processes and therefore have a broad
spectrum as to the potential genus, species, and countries of origin.
While this type of materials reuse is positive from a recycling and
sustainability perspective, it makes collection of useful data for the
declaration requirement virtually impossible. IKEA also believes that
the declaration requirement should not apply to composite products
until it is determined that it is feasible, practical and effective to
gather such information. However, we would like to underline that this
should not in any way reduce the responsibility of the importer to
exercise due care in procurement.
Due Process
The heart of the Lacey Act Amendments is the prohibition against
the importation of products containing illegally-harvested wood or
plant material, which the U.S. Department of Justice and the Fish and
Wildlife Service enforce through criminal and civil penalties and
seizure and forfeiture of merchandise. To avoid possible civil and
criminal penalties, importers must exercise proper due diligence in
their supply chains to ensure their products do not contain illegally-
harvested wood or plant material.
The Lacey Act Amendments specifically state that seizures are
governed by the Civil Asset Forfeiture Reform Act (CAFRA), which
provides due process for parties to present their case and facts to
petition through a legal process for return of government-seized
property.\1\ At the time of its passage, some Members of Congress made
it clear that inclusion of this language would make this remedy
available under the Lacey Act Amendments.\2\
---------------------------------------------------------------------------
\1\ 16 U.S.C. sec. 3374(d).
\2\ Commenting on addition of the CAFRA language, Senator Richard
Burr (R-NC) said:
It is crucial, that as this legislation is implemented, a clear
distinction be drawn between ``innocent'' owners in the supply chain
who in good faith trade in wood products that they believe to be
legally harvested abroad, and those who knowingly traffic in illegal
material. It is the concern of Congress that this line be clearly drawn
when prosecutions occur under this act.
---------------------------------------------------------------------------
In practice, however, the enforcing agencies have nullified
Congress' intent by treating as contraband wood and plants alleged to
be illegally harvested. As a result, the Lacey Act Amendments have
become a strict-liability law--an importer may exercise the highest
degree of due care in complying with the law, yet still have its
products seized with no legal recourse or due process. Therefore, IKEA
believes that Congress should provide for a legal means for importers
to address illegal logging allegations, forfeitures and seizures and
preserve the rights of appeal in a court of law.
Retroactivity
While IKEA is not directly impacted, on behalf of the NRF and RILA
membership we represent here today, we recommend that any change to the
current law should correct an omission found in the original Lacey Act
Amendments--the lack of language limiting retroactive application of
the law. As recommended in consensus statements issued by U.S.
businesses and environmental NGO's, Congress should clarify that the
Lacey Act Amendments do not apply to antiques and other products
containing wood or plant material harvested or manufactured prior to
May 22, 2008, when the Lacey Act Amendments went into effect. Since the
provenance of the wood and plant material in these products cannot be
verified, this change is logical and non-controversial.
Scope of Foreign Laws and Regulations
The scope of the Lacey Act Amendments is also an issue. The law
defines ``illegal taking'' of trees or plants broadly to include any
foreign law or regulation that protects wood or plants, limits their
export or transshipment, or regulates the manner in which they are
taken, including required authorization and payment of taxes or
fees.\3\ In practice, this definition is open to wide interpretation
that sweeps in laws and regulations having little or no connection to
conservation and preservation of trees and plants. As a result,
importers have little clarity in exercising their due diligence
obligations as to what foreign laws and regulations would be applied
under the Lacey Act Amendments, creating a greater degree of
uncertainty, especially when dealing with a strict-liability statute.
---------------------------------------------------------------------------
\3\ 16 U.S.C. sec. 3372(a)(2)(B).
---------------------------------------------------------------------------
Therefore, Congress should clarify the Lacey Act Amendments to give
businesses better guidance on which foreign laws and regulations may
give rise to a violation, by specifying that applicable foreign laws
and regulations be directed to the preservation or conservation of
trees and plants. This clarification would exclude laws and regulations
that have little or no relationship to this goal, such as export
restrictions designed to protect manufacturing or processing in the
country of export. This change would also improve enforcement and
compliance by directing efforts in ways that truly advance the policy
objectives of the law.
Current Legislation
The current bills in the House--Tennessee Congressman Cooper's
RELIEF Act \4\ and Georgia Congressman Broun's FOCUS Act \5\--have
raised awareness of Members of Congress and the public to the practical
challenges related to the Lacey Act Amendments. However, neither of
these bills would adequately address these challenges, and in order to
be credible, any change needs to be supported by the environmental
community.
---------------------------------------------------------------------------
\4\ H.R. 3210.
\5\ H.R. 4171.
---------------------------------------------------------------------------
We are looking for a new legislative approach that effectively
addresses the issues of business stakeholders, stands the best chance
of generating broad, bipartisan support in Congress and all
stakeholders, but without undermining the very important goal to stop
illegal logging. We believe our recommendations will achieve these
objectives by making enforcement of the law more targeted and
effective; encouraging the adoption of strong compliance measures by
industry; and advancing the policy goals of the law to promote proper
forest stewardship and conservation practices around the world.
Thank you again for the opportunity to appear before you today.
______
Dr. Fleming. We thank you for your testimony. Next, Ms.
Harman. Hopefully we can get a unit that works for you. That is
not working either. OK. I think something is not plugged in.
STATEMENT OF DONNA A. HARMAN (H.R. 3210), PRESIDENT AND CHIEF
EXECUTIVE OFFICER, AMERICAN FOREST AND PAPER ASSOCIATION
Ms. Harman. Mr. Chairman and members of the Committee, I
appreciate this opportunity to present the views of the
American Forest and Paper Association and its members regarding
the Lacey Act. AF&PA is the national trade association of the
forest products industry, representing pulp, paper, packaging
and wood products manufacturers. Our industry accounts for
about 5 percent of the total U.S. manufacturing GDP, and we
produce about 190 billion in products annually, employing about
900,000 men and women.
The U.S. forest products industry is a strong proponent of
stainable forest management practices in the United States and
around the world. Last year our industry adopted a
sustainability initiative called ``Better Practices, Better
Planet 2020.'' This includes a specific framework to work with
governments, industry, and other stakeholders to promote
policies around the globe to reduce illegal logging. Illegal
logging is not just an environmental issue. It is also a global
economic issue.
When illegally sourced, forest-based raw materials enter
the stream of commerce, a global economic problem is created
for U.S. producers of products from legally sourced raw
materials. AF&PA commissioned a study in 2004 to assess the
economic impact of illegal logging on timber production and
trade. The report concluded that up to 10 percent of global
wood products production and roughly a similar share of global
wood products trade are of suspicious origin. The report also
estimated that the economic cost to the U.S. forest products
industry is approximately $1 billion per year in terms of lost
exports and lower value of domestic shipments.
Moreover, supplying wood and paper products that are
derived from sustainable and legal sources of raw materials is
what our customers demand. Without a sustainable supply of
legally harvested wood, our very existence and jobs we provide
are at risk. Because illegal logging is a global issue, the
U.S. industry needs the involvement of government to help
ensure that our markets are not a haven for products from
illegal timber harvest. For these reasons, we believe it is
appropriate for the U.S. to have laws that prevent illegally
harvested raw materials from entering U.S. commerce.
The 2008 amendments brought heightened international
awareness to the illegal logging issue, and introduced a strong
incentive throughout the global supply chain to ensure the
legality of forest products. Already, we are seeing the effects
of the law. The hardwood sector of our industry is seeing a
pickup in demand for U.S. hardwoods, not only from domestic
customers, but also from buyers in Asia, who are reportedly
looking for hardwoods from reliable and legal sources. Many
U.S. hardwood timber mills are small, family owned businesses,
like Glen Oak Lumber Company whose CEO, Tom Talbot, is in the
audience today.
The Lacey Act provides significant economic benefits to
American rural businesses and jobs. While the 2008 Lacey Act
amendments have accomplished much good, the implementation has
not been problem-free. We have been working with many
organizations to develop consensus recommendations, and to help
streamline and clarify the requirements for compliance with the
Lacey Act. The following are AF&PA's recommendations.
First and foremost, the Administration was mandated by
Congress to produce a report on implementation issues within 2
years of passage of the 2008 amendments. We urge members of
this Committee to formally request that the implementing
agencies provide a short-term date certain for the release of
this report. Second, the declaration report requirement is an
important tool in ensuring that businesses along the supply
chain from harvesting to manufacturers, brokers, importers, and
retailers become part of the solution through joint action. The
declaration for pulp and paper is on hold, but we hope that by
working with APHIS and other stakeholders it can be
implemented.
Third, we believe the Lacey Act amendments should not apply
to plants and plant products manufactured or imported prior to
the enactment of the 2008 amendments.
Fourth, Federal agencies should issue clear guidance that
enforcement action will not be taken against individual
consumers. There is no precedent in the Lacey Act's long
enforcement history of the government targeting end users of
individual products.
Finally, Congress should provide adequate funding for
Federal agencies responsible for carrying out the Lacey Act
mandate. It is critical to ensure the full implementation of
this Act.
The Lacey Act is an important tool for protecting forests
around the world and combating international trade and
illegally taken plant and plant products, including wood and
paper. As with any other law, there is room for improvement in
the manner in which the Act is being implemented and enforced.
We believe that the first thing the Federal agencies need to do
is issue their report on the implementation and operation of
the Lacey Act amendments. If it is determined that the Act does
not provide sufficient administrative authority and legislative
changes are still needed, we would be glad to work with the
Congress to implement technical changes that would improve the
effectiveness of the Lacey Act. Senators Lamar Alexander and
Ron Wyden are currently leading such a process and we would
welcome a bipartisan and bicameral effort for identifying areas
of agreement on how to move forward with improving and
strengthening the Lacey Act's implementation. Thank you very
much for the opportunity to present our views.
Dr. Fleming. Thank you, Ms. Harman.
[The prepared statement of Ms. Harman follows:]
Statement of Donna Harman, President and Chief Executive Officer,
American Forest & Paper Association
I appreciate this opportunity to present the views of the American
Forest and Paper Association (AF&PA) and its members regarding H.R.
3210, the Retailers and Entertainers Lacey Implementation & Enforcement
Fairness (RELIEF) Act and H.R. 4171, the Freedom from Over-
Criminalization and Unjust Seizures Act (FOCUS) Act of 2012.
AF&PA is the national trade association of the forest products
industry, representing pulp, paper, packaging, and wood products
manufacturers and forest landowners. Our companies make products
essential for everyday life from renewable and recyclable resources
that sustain the environment. The forest products industry accounts for
approximately 5 percent of the total U.S. manufacturing GDP. Industry
companies produce about $190 billion in products annually and employ
nearly 900,000 men and women, exceeding employment levels in the
automotive, chemicals, and plastics industries. The industry meets a
payroll of approximately $50 billion annually and is among the top 10
manufacturing sector employers in 47 states.
The U.S. forest products industry is a strong proponent of
sustainable forest management practices in the U.S. and around the
world and is committed to using forest management and manufacturing
practices that meet environmental, social, and economic objectives. Our
customers rely on us as the foundation of their supply chain to ensure
that the products we sell are produced in a legal and sustainable
manner.
Building on its legacy of sustainability, the U.S. forest products
industry last year set sustainability goals called ``Better Practices,
Better Planet 2020.'' The initiative recognizes the importance of
procurement of our primary raw material (wood) from sustainable
sources. It includes a specific commitment to increase the amount of
fiber procured from certified sources in the U.S. and to work with
governments, industry, and other stakeholders to promote policies
around the globe to reduce illegal logging.
Our industry is sympathetic to the concerns of committee members
about over-regulation and its effects on jobs and the economy. We know
firsthand about well-intentioned laws that, when implemented, result in
unforeseen or unintended consequences. American paper and wood products
manufacturers are facing over twenty major regulations from EPA's Clean
Air Act alone. Many of these regulations could be written in much less
burdensome ways and still produce equivalent or better environmental
benefits. Boiler Maximum Achievable Control Technology (MACT) is just
one of the rules adding to the cumulative regulatory burden. Although
most boilers already are well controlled for key pollutants, EPA's
Boiler MACT Rule will require more than 90% of boilers to make
significant changes. Our estimated capital cost for the reproposed rule
is $4 billion, plus billions more in operating costs. We expect
thousands of forest products jobs will be affected by the final Boiler
MACT Rule unless further changes are made to the final rule. The U.S.
forest products industry operates in a fiercely competitive global
marketplace. Increasingly, the competition in our sector is coming from
developing countries with lower environmental and forest management
regulations than those to which we adhere in the U.S. We believe that
the cumulative regulatory burden our industry is facing is placing the
competiveness of our industry and its workers at risk.
While very little illegal logging occurs in North America, this is
not the case around the globe. Conversion of forest land to agriculture
is the primary cause of deforestation in developing countries and
illegal logging also contributes to overexploitation and unsustainable
forest management. Illegal logging is not just an environmental issue--
it is also a global economic issue. When illegally sourced forest-based
raw materials enter the stream of commerce, a global economic problem
is created for U.S. producers of products from legally sourced raw
materials. For these reasons, we believe it is appropriate for the U.S.
to have laws that prevent illegally harvested raw materials from
entering into U.S. commerce.
By its very definition, it is difficult to get a good estimate of
the economic cost of illegal logging. The World Bank estimated in a
2006 report that illegal logging costs developing countries some $15
billion in lost assets and revenue. In addition, legitimate companies
around the world involved in the forest products trade are losing
billions of dollars in revenue annually due to market distortions
caused by illegally harvested wood and wood products entering world
markets.
AF&PA commissioned its own study in 2004 to assess the economic
impact of illegal logging on timber production and trade to better
inform the industry's policy. The report concluded that up to 10
percent of global wood products production and a roughly similar share
of global wood products trade are of suspicious origin. The report also
estimated that eliminating global illegal logging would increase U.S.
wood exports by over $460 million per year and increase the value of
U.S. domestic shipments by $500-700 million annually.
Controlling illegal logging has been a bipartisan effort. Early on,
President George W. Bush's Administration recognized that illegal
logging could not be controlled at the source alone because of weak
governance and enforcement structures in timber-rich developing
countries, together with corruption, poverty, and poor incentives to
maintain land as forests. The administration understood that global
cooperation on effective forest management was necessary to protect
American economic and trade interests--such as the ability of the U.S.
forest products industry to compete on a level playing field. In 2003,
the Bush Administration launched the President's Initiative Against
Illegal Logging. The international initiative, a result of
collaborative efforts involving the administration, industry, and non-
governmental organizations aimed to assist developing countries in
their efforts to combat illegal logging, including the sale and export
of illegally harvested timber, and to fight corruption in the forest
sector. The administration followed that with separate memoranda of
understanding with Indonesia and China on combating illegal logging and
associated trade. U.S. government officials continue to have bilateral
meetings with their counterparts to address illegal logging issues.
More recently, illegal logging has received broader attention in the
Asia Pacific Economic Cooperation forum.
In addition to government-to-government actions to control illegal
logging, AF&PA recognized that international trade needs to be used as
a complementary tool to create the political will to make policy
improvements and enforce changes on the ground in high-risk countries.
To that end, AF&PA was an active participant in a unique stakeholder
coalition comprising the forest products industry, labor, environmental
organizations, and importer groups, who worked together for the
Congressional passage of the 2008 amendments to the Lacey Act.
The 2008 amendments passed with bi-partisan Congressional support.
The amendments make it unlawful to import, export, transport, sell,
receive, acquire, or purchase in interstate or foreign commerce any
plants or products--including wood and paper--made of plants that are
taken or traded in violation of the laws of a federal, state, or
foreign law. The plants or products are considered illegally sourced
when they are stolen, taken from officially protected or designated
areas, taken without or contrary to the required authorization or on
which appropriate royalties, taxes, or stumpage fees have not been
paid, or are subject to export bans.
The amendments also require importers to file a declaration
identifying the country of harvest, the genus and species of plants
contained in the products, and the unit of measure. The declaration
requirement, administered by the Animal and Plant Health Inspection
Service (APHIS) of the U.S. Department of Agriculture, already applies
to imports of certain solid wood products but has not yet been phased-
in to composite wood products or to pulp and paper, among others.
The 2008 Lacey Act Amendments brought heightened international
awareness to the illegal logging issue and introduced a strong
incentive throughout the global supply chain to ensure the legality of
forest products. The Chatham House, a UK-based nonprofit on
international and current affairs, has documented welcome reductions in
illegal logging or trade over the past few years, and enacting the
Lacey Act Amendments has been part of the reason.
Closer to home, we are hearing from the hardwood sector of our
industry that it is seeing a pickup in demand for U.S. hardwoods not
only from domestic customers but also from buyers in the Far East who
reportedly are looking for hardwoods from reliable and legal sources.
Many U.S. hardwood timber mills are small, family-owned businesses so
the Lacey Act provides significant economic benefits to American rural
businesses and jobs.
Nonetheless, implementation has not been problem free. As is the
case with other laws, the government and the private sector learn from
each other about implementation realities. Our industry has worked
within a wide coalition including importers, industry, environmental
groups, labor organizations, retailers, and others to develop consensus
recommendations to the federal agencies on implementation of the Lacey
Act Amendments. The consensus group provided the federal agencies with
two sets of detailed documents (in 2009 and 2010) encouraging the
agencies to use their rulemaking authority to clarify and streamline
the requirements for industry to comply with the Lacey Act. As recently
as August 2011, the consensus group submitted a joint statement to
APHIS proposing a process for addressing outstanding technical issues.
Unfortunately, the Administration has been slow to act on these
recommendations and many of the problems persist.
The following are AF&PA's recommendations:
First and foremost, the administration was mandated
by Congress to produce a report on implementation issues within
two years of passage of the 2008 amendments. This report has
still not been completed. Without the report, it is difficult
for Congress and private sector stakeholders to assess whether
the understanding of the outstanding implementation issues are
best resolved administratively or by legislative changes. We
urge members of this committee to formally request that the
implementing agencies provide a short-term date certain for the
release of the report so that Congress and the public may have
access to the information needed to determine the best course
of action for solving the identified problems with
implementation.
We believe that the declaration requirement is an
important tool in ensuring that businesses all along the supply
chain--harvesting operations, manufacturers, brokers,
importers, and retailers--become a part of the solution through
joint action. The idea behind the 2008 amendments was not a
heavy-handed government system of regulation, but a requirement
that put the burden on the supply chain to exercise due care in
knowing where the raw material is coming from.
However, the implementation of the declaration requirement
is a work in progress. Several paper companies that have
implemented internal fiber tracking systems have told AF&PA
that it will be very difficult to identify the genus and
species of the wood fiber they use at their paper mills on a
shipment-by-shipment basis. Typically, their wood fiber comes
from low-risk North American sources. In anticipation of the
eventual phase-in of the declaration requirement to pulp and
paper, AF&PA is working with its member companies to identify
alternatives that will provide flexibility for the reporting of
the genus and species of fiber used at pulp and paper mills
without degrading the utility of the declaration.
AF&PA believes that the Lacey Act Amendments should
not apply to plants and plant products manufactured or imported
prior to the enactment of the amendments. We agree that it is
unreasonable to expect importers to obtain complete supply
chain information retroactive to pre-May 2008. Specific
language could be developed by stakeholders that would preclude
unintended gaps.
Federal agencies should issue clear guidance that
enforcement action will not be taken against individual
consumers. There is no precedent in the Lacey Act's long
enforcement history of the government targeting end users of
individual products.
Finally, we believe that adequate funding for federal
agencies responsible for carrying out the Lacey Act mandate is
critical to ensure the full implementation of the act. This
should include funding for international programs that educate
foreign governments and businesses on how to comply with the
Lacey Act.
Recent reports about enforcement actions taken by the U.S. Fish and
Wildlife Service have generated media and political attention to the
Lacey Act Amendments. We believe effective enforcement is essential to
combating illegal logging. We do not have the information necessary to
comment on the particulars of any specific enforcement action, but we
do know that enforcement of the law provides a strong deterrent to
illegal behavior. Should this Committee decide changes are needed, we
would urge that the changes be made administratively, if possible,
before legislative changes are contemplated and that care should be
taken to ensure that any changes do not undermine the legitimate
economic and environmental goals of the 2008 Lacey Act Amendments.
H.R. 3210, the Retailers and Entertainers Lacey Implementation and
Enforcement Fairness (RELIEF) Act
We do not support H.R. 3210 in its current form and are concerned
that it sidesteps the administrative review process set out in the
original 2008 amendments. The Secretary of Agriculture was mandated to
produce a report to Congress within two years of the enactment of the
amendments. That report was intended to provide factual information on
the implementation and enforcement of the declaration requirement and
address some of the questions before the committee today. Without this
report, Congress and the business community do not have a common set of
information on which to make decisions about whether the implementation
issues can be addressed administratively or require legislative
changes. The net effect of legislation without this information may be
to undermine the goals of the 2008 amendments. We believe H.R. 3210
could diminish the effectiveness of the 2008 Lacey Act Amendments.
Limitation on application of the Lacey Act's
declaration requirement to ``solid wood''--We are concerned
with the proposed exclusion of non-solid wood products from the
Lacey Act. As we indicated above, AF&PA supports the phase-in
of the declaration to pulp and paper but seeks to work with
APHIS to address the difficulties in identifying the genus and
species of the fiber used to produce each shipment of pulp and
paper. The U.S. imports pulp and paper from regions of the
world that are known to have inadequate enforcement of logging
practices. Reasonable efforts can and should be taken in supply
chain management to ensure that illegally sourced raw material
is not used widely. The U.S. is one of the largest markets for
paper in the world and its requirements will set the standard
for production in many developing countries where there might
otherwise not be an incentive for good environmental practices.
Application of the Lacey Act to items imported only
for commerce--We do not object to this general idea, but
believe it is best dealt with through regulatory guidance. The
guidance would need to be carefully crafted, however, so that
it does not allow for the operation of off-shore firms that can
supply individual Americans with wood products that would
otherwise be in violation of the Lacey Act. A broad brush
statutory change may not reflect the precision that will be
required to prevent the creation of more unintended
consequences.
``Innocent Owner'' Defense--H.R. 3210 seeks to
eliminate the limitation on the ``innocent owner'' defense
currently inherent in the Lacey Act. Plants and plant products
imported in violation of the Lacey Act are treated as stolen
goods so in effect are contraband subject to forfeiture by the
government. We believe that the threat of forfeiture serves as
a strong deterrent but more study may be in order.
Review and report--We believe that the creation of a
public database on ``all'' foreign laws from which plants and
plant products are exported should be explored. However, such a
government database should be considered for guidance only and
should not be intended to replace the exercise of due care
required for compliance with the Lacey Act. Already, the Forest
Legality Alliance and other groups have developed databases to
assist the trade in identifying foreign laws that could be
covered by the Lacey Act. The foundation of the 2008 amendments
was a public-private partnership where companies are
responsible for asking questions of their suppliers to
reasonably know that the raw material they are procuring comes
from legal sources.
Standard certification process for plant and plant
products--We are concerned with the level of government
intervention in the marketplace that this might entail. We also
are concerned that this proposal could lead to a requirement
for third-party forest certification, which has the potential
to discriminate against U.S.-based certification programs. We
also note that a majority of small family forest owners in the
U.S. are not third-party certified, and thus, could not meet
such a requirement. These forests are, however, sustainably
managed and harvested according to the laws of the U.S. Care
was taken in the drafting of the 2008 amendments to ensure that
any future regulations imposed by other countries to mirror our
Lacey Act Amendments would not be harmful to U.S. exports of
wood and paper products.
H.R. 4171, the Freedom from Over-Criminalization and Unjust Seizures
Act (FOCUS) Act of 2012
The 2008 Lacey Act Amendments reinforce and support the laws of
other countries concerning the management and trade of plants and plant
products. As stated above, a Lacey Act violation is triggered by laws
concerning the way plants and plant products are taken, possessed,
transported, imported, or exported. Bans and restrictions on exports of
raw materials such as logs and sawnwood are common laws in tropical
countries and are directly linked to forest management and protection
efforts. In countries where corruption is common or where there is weak
governance, these laws are an important tool in controlling large
exports of illegally logged timber.
In addition to supporting foreign forest governance efforts,
another important objective underlying the Lacey Act Amendments was to
level the playing field for legitimate American producers of forest
products. We believe that the Lacey Act is meeting that objective and
that the elimination of the violation of foreign laws as a basis of
prosecution will eviscerate the Lacey Act.
In conclusion, given that the U.S. is the largest importer of
forest products, with proper implementation and enforcement, the Lacey
Act is an important tool for protecting forests around the world and
controlling international trade in illegally taken plants and plant
products, including wood and paper. By fighting illegal logging, the
Lacey Act also is leveling the competition in the international wood
market. We have received reports that many Asian manufacturers of wood
products are returning to U.S. hardwood to avoid sourcing from
questionable suppliers. This helps in preserving and growing jobs in
U.S. communities.
As with any other law, there is room for improvement in the manner
the act is being implemented and enforced. We believe that first thing
the federal agencies need to do is issue their report on the
implementation and operation of the Lacey Act Amendments. If it is
determined that the act doesn't provide sufficient administrative
authority and legislative changes are still needed, we would be glad to
work with Congress to implement technical changes that would improve
the effectiveness of the Lacey Act.
______
Dr. Fleming. And next up, we have Mr. Rey. You have 5
minutes, sir.
STATEMENT OF THE HON. MARK REY (H.R. 3210 AND H.R. 4171),
FORMER UNDER SECRETARY OF AGRICULTURE FOR NATURAL RESOURCES AND
THE ENVIRONMENT, ON BEHALF OF CLIMATE ADVISORS
Mr. Rey. Thank you, Chairman Fleming and members of the
Subcommittee for allowing me to present my views. I am
testifying today on behalf of Climate Advisors, an
environmental consulting firm. I am also and adjunct faculty
member at the Michigan State University School of Agriculture
and Natural Resources. Prior to these positions, I served under
President George W. Bush for nearly 8 years as U.S. Department
of Agriculture as the Under Secretary for Natural Resources and
the Environment. In that capacity, I oversaw the work of the
U.S. Forest Service and participated in the development of the
2008 Lacey Act amendments.
I want to start by commending the Subcommittee for
convening this hearing. The implementation of new statutory
programs is almost never flawless, and this is not an exception
to that, and congressional oversight of agency implementation
decisions are crucial.
With the Subcommittee's permission I would also like to
submit for the record a statement from Former Deputy Secretary
of the Interior, Lynn Scarlett concerning the ecological and
economic impacts of illegal logging, as well as the efforts of
the George W. Bush Administration to remedy this situation,
including the bipartisan enactment of the 2008 Lacey Act
amendments. And I would be happy to answer any questions about
Secretary Scarlett's statement for the record as well as my
own.
[The prepared statement of former Deputy Secretary of the
Interior Lynn Scarlett follows:]
Statement submitted for the record by Lynn Scarlett,
Former Deputy Secretary, U.S. Department of the Interior
Thank you Mr. Chairman, Mr. Ranking Member, and members of the
committee for the opportunity to share my experience and views on the
Lacey Act, illegal logging and its impact on natural resources and the
economy. I am currently a Visiting Scholar at Resources for the Future.
Prior to this position, I spent nearly 8 years at the U.S. Department
of the Interior, including nearly 4 years as Deputy Secretary during
the Administration of President George W. Bush. It is through that lens
that I offer my comments.
The extension of the 100-year-old Lacey Act in 2008 to apply to
illegally harvested timber was an internationally significant
milestone. Through passage of the 2008 amendments, the United States
became the first nation in the world to enact an enforceable ban on the
importation of illegally harvested timber. Through a bipartisan effort,
the Bush Administration supported this addition to the Act. Indeed,
passage of these new provisions to the Act was the culmination of an
effort against illegal logging by the Bush Administration during nearly
the entire 8 years of the Administration. The effort engaged
Republicans, Democrats, the timber industry, labor, and the
conservation community.
Before turning the ``how'' of this multi-year effort, consider a
few observations on the ``why'' of this focus on illegal logging.
Multiple motivations spurred the efforts to address illegal logging.
Banning commerce in illegally harvested timber benefits the U.S. and
global economies, protects the environment, and benefits local
communities in areas afflicted by these illegal activities. Addressing
illegal logging brings win-win-win results.
In terms of the economy, the American Forest & Paper Association
estimates that illegal logging costs U.S. businesses over $1 billion
per year in lost sales opportunities and lower prices to U.S. timber
companies. The industry had identified commerce in illegally harvested
timber as a significant international issue.
The ban on commerce in illegally harvested timber is also good for
the environment. Very preliminary estimates indicate an apparent drop
of around 22 percent in illegal timber activities since the U.S. and
other nations began to target such activities. These include illegal
activities associated with deforestation and unsustainable harvesting
practices in some developing countries. They include timber harvesting
in areas designated by countries as national parks and other protected
areas, some of which sustain populations of highly endangered species.
The Lacey Act provisions also benefit local communities. Illegal
logging can undermine local economic activities linked to healthy
forestlands and often depriving local and national governments of
revenues. The World Bank estimated in 2006 that timber harvested
illegally worldwide, from public lands alone, resulted in lost assets
and revenues of more than $10 billion annually in developing countries.
Illegal activities also shift economic opportunities away from local
communities and deprive them of a voice in management of resources
linked to these communities.
These details provide the ``why'' behind the effort to amend the
Lacey Act. But these efforts were the culmination of a series of other
measures undertaken by the Bush Administration. As early as 2002, the
Bush Administration had identified commerce in illegally harvested
timber as a significant problem. President Bush asked Secretary of
State Colin Powell to develop an initiative to help developing
countries stop illegal logging practices. Secretary Powell launched the
initiative in 2003, announcing its four main features. These included:
good governance and capacity building of legal regimes and enforcement
practices; community-based actions to strengthen local economic
opportunities; technology transfers; and strengthening of market forces
and institutions to ensure accurate timber source reporting,
transparent practices, and so on.
The initiative generated significant benefits in the Congo,
Southeast Asia, Central America and the Amazon. But, ultimately, the
Administration recognized the key role the Lacey Act could play in
reinforcing the goals of the initiative to stem illegal logging.
The Bush Administration testified in favor of application of the
Lacey Act to commerce in illegal logging in 2007. I offer a couple of
observations drawn from that testimony (See Statement of Eileen Sobeck,
Deputy Assistant Attorney General, Environment and Natural Resources
Division, U.S. Department of Justice, before the Subcommittee on
Fisheries, Wildlife, and Oceans, Committee on Natural Resources, U.S.
House of Representatives, Concerning H.R. 1497, Legal Timber Protection
Act, October 16, 2007). The Administration's testimony underscored that
the Lacey Act provisions under consideration were not about policing
other nations. Rather, the focus was on recognizing foreign laws by
prohibiting commerce in illegally harvested timber and timber products.
In short, the provisions were based in enhancing international
cooperation and reciprocal respect among nations. The provisions were
consistent with 100 years of laws pertaining to wildlife under the
Lacey Act.
There was another critical part of the discussion about the Lacey
Act provisions. Prior to the Bush Administration's testimony, the
Justice Department undertook a review of other laws and concluded that
these laws were inadequate to address trade in illegally harvested
timber. Amending the Act was viewed by the Administration as essential
to addressing this illegal harvesting problem.
As I conclude my remarks, I want to go back to the beginning--the
issue of benefits. The Lacey Act provisions on illegal harvesting of
timber benefit U.S. businesses, the environment, and local communities
in areas currently affected by illegal logging activities. The Act
creates an even playing field. It is good for U.S. companies that
operate legally in the United States and abroad. But its success
depends on its continuation and implementation. Like many statutes,
translation from statute to action involves putting in place procedures
and building blocks. Such processes always involve a learning curve and
some iterative adjustments. The remedy to any perceived implementation
challenges resides in addressing those specific issues--not in undoing
a statute that is, fundamentally, about reducing fraud and respecting
the rule of law in the United States and abroad.
______
Mr. Rey. Passage of the bipartisan 2008 Lacey Act
amendments have so far produced very dramatic and positive
results as well as some of the problems that have already been
discussed. As you have been told, illegal logging has decreased
by 22 percent worldwide, and in some countries, by as much as
50 to 70 percent in only a couple of years' time. There is, as
you have also been told, some evidence that as companies seek
assurances that their timber supply is legal, they are either
keeping operations in the United States, or moving them back
here to get that assurance. There is also evidence that forest
products importers are taking new steps to ensure their wood
comes from legal sources.
The Lacey Act has also had a significant international
impact, inspired, in part, by the 2008 amendments; the European
Union passed similar legislation in 2010, and Australia and
several other developing countries are considering similar
legislation. It is imperative that as we work to oversee the
implementation of the 2008 amendments, and see what changes, if
any, are necessary, that this progress not be halted.
Unfortunately, we come to the conclusion that H.R. 3210
would unnecessarily weaken implementation of the 2008
amendments. The Act's advocates have primarily framed the
legislation as a narrow fix for the music industry. The effect
of enactment of the RELIEF Act, however, would be much more
sweeping and would have other effects outside of the music
industry.
It, for instance, removes the declaration requirement for
nonsolid wood. As you have just been told, pulp and paper alone
constitutes more than half of the dollar value of forest
products imports into the United States. It weakens penalties
for noncompliance, even though for 112 years, the Lacey Act has
been constructed to work primarily through deterrence. And it
eliminates the possibility of confiscation, as is normal with
other stolen goods.
H.R. 4171, would unfortunately return the American wood
producers to the unfair trade regime that existed prior to the
enactment of the 2008 amendments. Those amendments are designed
to reinforce and support the laws of other countries concerning
the management and plant--the management and trade of plants
and plant products, and that is what has put American wood
producers back on a level playing field.
As has been indicated already, the implementation of the
2008 amendments has not been flawless. The 2008 amendments
require a report from Congress that was to be delivered--a
report to Congress, I am sorry, that was to be delivered in
2010, and that report is still unavailable. So the first place
to start, it seems to me, is to get that report up here, review
it critically, and then decide what changes need to be made and
whether those changes need to be administrative changes or
legislative changes.
So I will conclude by, again, commending you, Mr. Chairman,
and the members of the Subcommittee for this important
congressional oversight effort. I would hope that your
attention today, and in the future, spurs agency actions. Such
actions need to be, to respond to and remedy legitimate
implementation concerns that have been raised to date. And it
is my judgment that most of those can be done administratively.
Thank you.
Dr. Fleming. Thank you, Mr. Rey.
[The prepared statement of Mr. Rey follows:]
Statement of Mark Rey, Former Under Secretary of Agriculture for
Natural Resources and the Environment, on behalf of Climate Advisors
Thank you Mr. Chairman and members of the Subcommittee for allowing
me to present my views on the implementation of the Lacey Act, and on
H.R. 3210, the Retailers and Entertainers Lacey Implementation and
Enforcement Fairness Act (RELIEF Act), and H.R. 4171, the Freedom From
Criminalization and Unjust Seizure Act (FOCUS Act).
I am testifying today on behalf of Climate Advisers, a consulting
firm that provides scientific, technical, and policy advice to
government and non-government organizations. I am also an adjunct
faculty member of the Michigan State University School of Agriculture
and Natural Resources. Prior to this position, I served under President
George W. Bush for nearly 8 years at the U.S. Department of Agriculture
as the Undersecretary of Agriculture for Natural Resources and the
Environment. In this capacity, I oversaw the work of the U.S. Forest
Service and participated in the development of the 2008 Lacey Act
Amendments.
I commend the Subcommittee for convening this hearing. The
implementation of new statutory programs is seldom flawless, and
Congressional oversight of agency implementation decisions is crucial.
I would like to submit for the record a statement from former
Deputy Secretary of the Interior Lynn Scarlett concerning the
ecological and economic impacts of illegal logging, as well as the
efforts of the George W. Bush Administration to remedy this situation,
including the bipartisan enactment of the 2008 Lacey Act Amendments.
After briefly recounting some of the positive effects of these
amendments, I will focus the balance of my remarks on H.R. 3210 and
H.R. 4171.
Impacts of the 2008 Amendments to Date
Passage of the bipartisan 2008 Amendments and the limited
enforcement actions undertaken so far have produced dramatic and
positive results. According to a report by Chatham House, the Lacey Act
has helped reduce illegal logging by at least 22 percent globally, with
reductions as high as 50-70% in some key countries. That is the
equivalent of at least a one billion ton reduction in greenhouse gas
emissions from deforestation, achieved without the implementation of
any new taxes. Chatham House estimated the cost of the greenhouse gas
reductions achieved through the reduction in illegal logging ranges
between seven cents and $2.48 per metric ton, providing one of the most
affordable examples of reduced greenhouse gas emissions.
There is some evidence that, as companies seek assurances that
their timber supply is legal, they are either keeping operations in the
United States or moving them back here. Indeed, the Lacey Act may be a
factor in the dramatic reversal of the U.S. trade deficit in forest
products with China, which went from a $20.6 billion deficit in 2006 to
a $600 million surplus in 2010. We should look at this success as a
model to build upon.
There is also significant anecdotal evidence that forest products
importers are taking new steps to ensure their wood comes from legal
sources. In the guitar industry alone, Taylor and Martin guitar
companies have both said they have worked to bring their operations
into Lacey Act compliance, and wood importers, large and small, in all
the industries that use forest products have made huge strides in
ensuring the compliance of their operations.
The Lacey Act has also had significant international impact.
Inspired in part by the 2008 Lacey Act Amendments, the European Union
passed a similar regulation in 2010, and Australia and several other
countries are considering similar legislation. Earlier this year, the
United Nations recognized the Lacey Act with a silver medal as one of
the world's three most effective forest conservation policies. The law
has also been recognized by political leaders of forest nations, which
are grateful for the support it provides them in their efforts to
reduce illegal logging. According to the World Bank, illegal logging
costs forest nations $10 billion a year in lost assets and revenues
from permits and other sources.
H.R. 3210 Would Unnecessarily Weaken Implementation of the 2008
Amendments
The RELIEF Act's advocates have primarily framed the legislation as
a ``narrow fix'' that primarily affects the music industry. They have
focused much of their arguments on the idea that individual musicians
could be targeted for Lacey Act enforcement for crossing international
boundaries, even if they are just carrying instruments with illegal
wood that was purchased before the Lacey Act amendments were passed in
2008. The Fish and Wildlife Service and the Justice Department have
repeatedly clarified that individuals are not targets for enforcement:
``Individual consumers and musicians are not the focus of any U.S. Fish
and Wildlife Service law enforcement investigations pertaining to the
Lacey Act, and have no need for concern about confiscation of their
instruments by the U.S. Fish and Wildlife Service,'' FWS wrote in a
recent statement.
The effect, however, of enactment of the RELIEF Act would be far
more sweeping, and would be likely to have much greater impact outside
the music industry. The key provisions are:
Removes the declaration requirement for ``non-solid
wood.'' This exempts the pulp, paper, and composites industry
from the key requirement of the Lacey Act--that they know where
their wood is coming from. Pulp and paper alone constitute more
than half of the dollar value of forest products imports into
the United States.
Weakens penalties for non-compliance. The bill would
remove most of the deterrent effect of the penalties by
lowering them to traffic ticket levels of $250 for ``first
offenses.'' Given limited enforcement resources, the Lacey Act
was constructed to work primarily through deterrence, rather
than through widespread issuance of small fines.
Eliminates possibility of confiscation. The bill
wouldn't make illegally logged goods subject to confiscation,
as is normal with other stolen goods--removing another
significant deterrent to illegal logging.
A broad coalition has assembled to oppose the RELIEF Act, including
major environmental groups, unions, and almost the entire U.S. forest
products industry. Groups opposing the legislation include: Blue Green
Alliance, American Forest & Paper Association, Environmental
Investigation Agency, Hardwood Federation, Greenpeace, National Wood
Flooring Association, League of Conservation Voters, National Alliance
of Forest Owners, Natural Resources Defense Council, Sierra Club, The
Field Museum, American Hardwood Lumber Association, United States Green
Building Council, United Steelworkers, Wildlife Conservation Society,
World Wildlife Fund, Union of Concerned Scientists, the American
Hardwood Export Council, and many others.
H.R. 4171 Would Return American Wood Producers to an Unfair Trade
Regime
The 2008 Lacey Act Amendments are designed to reinforce and support
the laws of other countries concerning the management and trade of
plants and plant products. A Lacey Act violation is triggered by laws
concerning the way plants and plant products are taken, possessed,
transported, imported, or exported. Bans and restrictions on exports of
raw materials are common in tropical countries and are directly linked
to forest management and protection efforts. In countries where
corruption is common or where there is weak governance, these laws are
an important tool in controlling large exports of illegally logged
timber.
In addition to supporting improved global forest governance, a
longstanding pillar of U.S. trade policy, another important objective
underlying the Lacey Act Amendments was to level the playing field for
legitimate American producers of forest products. We believe that the
Lacey Act is meeting that objective, and that the elimination of the
violation of foreign laws as a basis for prosecution will threaten the
enormous benefits of the Lacey Act.
The implementation of the 2008 Amendments has not been flawless.
The 2008 Amendments required a report from the Administration on
implementation issues to be delivered to Congress in 2010. That report
is still unavailable. A broad coalition of importers, manufacturers,
retailers, labor unions, and environmental organizations has been
meeting and developing consensus recommendations to the federal
agencies involved in Lacey Act implementation. Unfortunately, the
agencies have been slow to act on two sets of consensus recommendations
submitted thus far.
One of the top areas for improvement would be the establishment of
an electronic database at the Animal Plant Health Inspection Service
(APHIS) with the associated capacity to more easily and quickly process
importer declarations. Creating this resource will enable APHIS to
clear legal shipments (which constitute the overwhelming majority of
imports), while focusing on the small number of shipments that merit
further investigation. This will help legitimate importers to do
business at the speed they require in order to compete. The key to
addressing this gap is providing sufficient funding to APHIS of
approximately $5.5 million to develop the database. Also needed are
sufficient resources for Fish and Wildlife Service and Department of
State implementation (including providing technical assistance to the
industry for implementation). We recommend a total of $13.5 million for
these purposes. Although the federal budget is tight, the Lacey Act is
producing results on a larger scale than most other international
conservation programs, and should be prioritized for funding within
existing budget constraints.
I commend the Subcommittee for this important Congressional
oversight effort, and hope that the Subcommittee's attention spurs
agency action. Such action needs to respond to, and remedy, the
legitimate implementation concerns that have been raised to date. It is
my judgment that these concerns can be resolved administratively.
______
Dr. Fleming. Next, Mr. Gardner for 5 minutes.
STATEMENT OF ADAM GARDNER (H.R. 3210 AND H.R. 4171), FRONTMAN
OF GUSTER, FOUNDER AND CO-DIRECTOR OF REVERB
Mr. Gardner. Thank you. Good afternoon, Mr. Chairman, and
distinguished members of the Committee, my name is Adam
Gardner. I am a frontman of the band Guster, and the Founder
and Co-Director of an organization called Reverb, a nonprofit
that educates and engages musicians and their fans to take
action toward a more sustainable future.
Since 2004, Reverb has greened more than 115 top-selling
major national musicians tours. I come here today to represent
a large swath of high-profile musicians who care deeply about
their direct impact on the environment, social inequalities,
and the economy. Creating musical instruments like guitars,
violins and pianos depends on the availability of materials
like tone woods. These precious woods are running out and the
jobs that depend on them are under severe threat because of
illegal logging. Resilient rosewood which was ubiquitous in
guitars and other stringed instruments is now under imminent
threat of extinction because of illegal logging. The black
market trade in these goods severely undermines efforts to
revitalize and sustainably harvest these tree populations.
In response, many instrument manufacturers have taken
important steps to ensure that their wood is both legal and
sustainable. Referring to Lacey, Taylor Guitars' CEO Bob Taylor
says: ``It is very simple. We now investigate the sources of
our wood and we ensure to the best of our ability that the wood
was taken legally. The cost isn't so much for us, it is not an
unbearable added burden, and we are happy to do extra
administrative work.''
Similarly, Chris Martin, Chairman and CEO of Martin Guitars
stated last year: ``I think the Lacey Act is a wonderful thing.
Illegal logging is appalling. It should stop. And if this is
what it takes, unfortunately, to stop unscrupulous operators, I
am all for it.''
But just as the Lacey Act is starting to work, we are being
presented with both the FOCUS Act, that would remove any
criminal liability and the need to comply with foreign laws,
and the so-called RELIEF Act, which proponents would like you
to believe is a surgical fix to the Lacey Act. The reality is
much different.
The RELIEF Act's sweeping provisions would remove almost
all key deterrents to illegal logging. The changes being
proposed would mostly benefit the commercial agenda of big
Asian timber conglomerates that have long opposed the Lacey
Act. The RELIEF Act provisions would exempt pulp and paper from
the core requirements of the Lacey Act as we already heard many
times today, even though they comprise more than half of forest
product imports. The bill would also lower fines for import of
illegally logged wood to the meaningless level of a traffic
ticket, just $250 for first offenders, even if that first
offense involves a container-sized shipment of illegally
sourced forest products worth hundreds of thousands of dollars.
And perhaps most surprisingly, the bill would allow for
businesses to keep the profit from wood that has been proven to
be stolen.
This runs counter to all other U.S. law and I would argue
against the very core of American ethic. In other words, if
someone came in your house, stole your TV and sold it to
someone else, wouldn't you expect the authorities to return
your property to you rather than allow the criminals who stole
it to keep it and sell it?
The same should be true for wood. As for musicians, let's
set the record straight. Lacey does not pose a threat to
musicians. A number of misleading claims have been raised by
RELIEF advocates that are simply not true. First, no individual
has ever been investigated or had their instrument taken under
the Lacey Act. Moreover, the U.S. Government itself has said it
is not after individual musicians.
Second, the Lacey Act does not ban the purchase of rare
types of wood, nor traveling with them. It simply bans trade in
illegal wood products. The only relief H.R. 3210 provides is to
illegal loggers, while leaving musicians and other consumers
with burdensome doubt about the legality and sustainability of
the wood products we use.
By contrast, the Lacey Act provides comforting assurance to
conscientious consumers like myself, that the wood I am buying
in my instruments or elsewhere is legally sound. The need for
keeping Lacey strong was further underscored by the recent
murder of Cambodian conservationist Chut Wutty who was killed
while working to expose illegal logging of rosewood.
No musician I know wants to play an instrument that is made
from wood stolen from a national park or harvested using slave
and child labor and violence. That is why a number of prominent
musicians have signed a pledge to support the Lacey Act and
oppose current efforts to weaken it, which Ranking Member
Markey submitted for the record earlier today. These artists
includes, Bonnie Raitt, David Crosby, Willie Nelson, Dave
Matthews Band, Jack Johnson, Maroon 5, Jason Mraz, Bob Weir,
Pat Simmons of the Doobie Brothers, Barenaked Ladies, Dispatch,
Fun, My Morning Jacket, Of a Revolution, Razia Said, my band
Guster and my organization, Reverb. This is in addition to over
40,000 sign-ons to a similar petition early this year. And as
word spreads across the music industry, more are sure to add
their names and voices in support of Lacey Act.
Chairman Fleming and honorable Members of Congress, please
listen to the voices of American musicians and keep the U.S. on
a path of defending forests, the law, American forest products,
and a sound future for music. Thank you.
Dr. Fleming. Thank you, Mr. Gardner.
[The prepared statement of Mr. Gardner follows:]
Statement of Adam Gardner, Frontman of Guster,
Founder and Co-Director of Reverb
Good afternoon. My name is Adam Gardner, and I'm the frontman of a
band called Guster and the founder and co-director of Reverb, a non-
profit organization that educates and engages musicians and their fans
to take action toward a more sustainable future. Since 2004, Reverb has
worked with over 60 top-selling artists on greening more than 115 tours
and over 1800 concert events. We've achieved a reduction of nearly one-
hundred thousand tons of carbon emissions, partnered with over 2,500
environmental organizations, and have reached an estimated 14.5 million
fans with our message. We believe in using the musician's voice to
create change, which is why I am providing testimony today on this very
critical issue for our forests, climate, and planet.
Great music transports us to the sublime, where we can forget the
banal tugs of the physical world. But the ability to create ethereal
symphonies and emotionally raw thrasher solos alike rests on the
availability of some very physical materials, most notably the prized
tonewoods that give guitars, violins, pianos, and dozens of other
instruments their immediately recognizable timbre. Unfortunately, these
precious woods are running out and the availability of those materials
and the jobs that depend on them are under severe threat because of
illegal logging.
For instance, Brazilian Rosewood, once ubiquitous in guitars and
other stringed instruments, was loved nearly to death: because of
illegal logging, this species is now under imminent threat of
extinction. Efforts to revitalize dwindling tree populations and manage
their harvest sustainably are severely undermined by the black market
trade in these goods. The effects can be seen in illegal logging
hotspots like Madagascar and Indonesia: tugged by the lure of quick
profits, illegal logging gangs bribe officials to gain access to
national parks and other protected areas, pillage the valuable species,
and sometimes feed themselves by hunting endangered ``bushmeat'' like
lemurs.
The human consequences are no less devastating. Revenue from
illegal logging and export trade supports and perpetuates corruption
and criminal activities, and is reaped in an atmosphere of fear,
intimidation and human rights abuses. Illegal logging in some countries
has been used to finance violent conflicts--much like the ``blood
diamonds'' that funded wars in West Africa--while in others it is
linked with wildlife and drug smuggling operations.
As a result of this threat to sources of tonewoods, many individual
instrument manufacturers have taken important steps to ensure that
their wood is both legal and sustainable. Speaking about Taylor
Guitars' response to Lacey, Bob Taylor says, ``It's very simple. We now
investigate the sources of our wood, and we ensure to the best of our
ability that the wood was taken legally. We fill out the paperwork
required and we present our business as an open book. The cost isn't so
much for us. It's not an unbearable added burden, and we're happy to do
the extra administrative work.'' Similarly, Chris Martin, Chairman and
CEO of Martin Guitars stated last year, ``I think [the Lacey Act] is a
wonderful thing. Illegal logging is appalling. It should stop. And if
this is what it takes unfortunately to stop unscrupulous operators, I'm
all for it.''
The law is delivering impressive results. According to a recent
report from Chatham House (the UK's equivalent of the Council on
Foreign Relations), the Lacey Act has helped reduce illegal logging
globally by a whopping 22 percent, as companies around the world take
steps to ensure their supplies come from legal sources. The United
Nations recently recognized the Lacey Act as one of the world's three
most effective forest conservation laws, and the European Union passed
similar legislation after seeing Lacey's outsize success.
But just as the Lacey Act is starting to work, we are being
presented with the FOCUS act that would remove any criminal liability
and the need to comply with foreign laws, and the so-called RELIEF Act,
which proponents would like you to believe is a surgical ``fix'' to the
Lacey Act. The reality is much different.
The RELIEF Act's provisions would remove almost all the key
deterrents to illegal logging; those things that are really bringing
about change on the ground and in the trade. They are so far reaching
that they would completely undermine the law's effectiveness in
preventing deforestation as well as threaten U.S. jobs by allowing
cheap illegal imports to undercut local products. The changes being
proposed would mostly benefit the commercial agenda of big Asian timber
conglomerates that have long opposed the Lacey Act. The revised
provisions would exempt pulp and paper from the core requirements of
the Lacey Act, even though these products comprise more than half of
forest products imports. The bill would also lower fines for import of
illegally logged wood to the meaningless level of a traffic ticket--
just $250 for ``first offenders,'' even if that first offense involves
a container-size shipment of illegally-sourced forest products.
The rationale that RELIEF advocates put forth for these sweeping
changes is that Lacey poses a threat to musicians. This is simply not
the truth. Let's set the record straight on a number of misleading
claims that have been raised: First, no individual has ever been
investigated or had their instrument taken under the Lacey Act.
Moreover, the U.S. government itself has said it's not after individual
musicians. Second, the Lacey Act does not ban the purchase of rare
types of wood, nor travelling with rare types of wood; it simply bans
trade in illegal wood products. Third, the government has made
allowance in the declaration for musical instruments or other products
manufactured prior to May 22, 2008 to declare them as pre-2008
material, without the specifics usually required by the declaration.
In effect H.R. 3210 only provides ``relief'' to illegal loggers
while leaving musicians and other consumers of wood products with
burdensome doubt about the legality and sustainability of the wood
products we use. By contrast, the Lacey Act provides comforting
assurance to conscientious consumers like myself that the wood I am
buying in my instruments or elsewhere is legally sound.
No musician I know wants to play a guitar, violin, or piano made
from illegal wood, wood stolen from a national park, or harvested using
slave and child labor. In fact, the musicians I know through Reverb's
work are doing as much as they can to make the products and practices
of their music as earth-friendly as possible, from fueling their tour
busses with sustainably produced biodiesel to offering organic
merchandise to fans. There is no more obvious product than the
instrument itself through which we express our music. The musicians I
know are committed to ensuring sustainable practices so future
generations also have access to the tonewoods that provide the rich
sounds that make music great.
Reverb has recently created a formal coalition of these like-minded
musicians called the Green Music Group. Since learning about the recent
challenges to the Lacey Act, a number of prominent musicians have
signed a pledge to support the Lacey Act and oppose current efforts to
weaken it. The pledge reads as follows:
Widespread illegal logging is placing at risk the wood we
treasure in our musical instruments, and thus the future of
music as we know it. As musicians dedicated to our art and to
protecting the earth's natural resources, we call on everyone
involved in the sourcing, crafting and production of musical
instruments to join us in our commitment to eliminate all trade
in illegally logged timber and forest products. We will not buy
a new instrument without asking where the wood comes from and
if it was harvested legally and sustainably.
We support the Lacey Act and other laws that prohibit trade in
illegally sourced wood and we oppose the efforts currently
underway to weaken the Lacey Act. We urge lawmakers, suppliers
and craftsmen to ensure that our art has a positive impact on
the environment rather than contributing to forest destruction.
We call on our fellow musicians to do the same.
The following musicians signed on within 48 hours of learning about
the threat to the effective implementation and enforcement of the Lacey
Act:
Bonnie Raitt
David Crosby
Willie Nelson
Maroon 5
Jason Mraz
Bob Weir
The Barenaked Ladies
Brad Corrigan of Dispatch
Pat Simmons of the Doobie Brothers
Ray Benson of Asleep At The Wheel
The Cab
Of A Revolution (O.A.R)
Ryan Dobrowski and Israel Nebeker of Blind Pilot
Razia Said
Rob Larkin
My band, Guster
And my organization, Reverb
This is in addition to over 40,000 sign-ons to a petition called
``Musicians Against Illegal Logging'' last January. Having worked on
initiatives within the music industry for a while, I can say that this
is quite an enthusiastic showing of support to have such quick
responses from bands of this caliber. And as word spreads across the
music industry, more are sure to add their names and voices in support
of the Lacey Act.
U.S. leadership to combat illegal logging in this way has been
impressive. It is has taken away a market that was historically ``no
questions asked''--and other consuming nations are following the U.S.
lead.
Chairman Fleming and honorable members of Congress: please listen
to the voices of America's musicians and keep the U.S. on a path of
defending forests, the law, American forest products, companies with
ethical wood sourcing, and a sound future for music.
Thank you.
______
Dr. Fleming. And last, we have Mr. Rubinstein. You, sir,
have 5 minutes.
STATEMENT OF REED D. RUBINSTEIN (H.R. 3210 AND H.R. 4171),
PARTNER, DINSMORE & SHOHL, LLP, UNITED STATES CHAMBER OF
COMMERCE'S INSTITUTE FOR LEGAL REFORM
Mr. Rubinstein. Thank you, Mr. Chairman, good afternoon.
Good afternoon, Ranking Member Sablan and members of the
Subcommittee. My name is Reed Rubinstein. I am a partner in the
Washington, D.C. office of Dinsmore & Shohl. For 25 years, I
have practiced environmental and administrative law, defending
individuals and companies in Federal, civil, and criminal
enforcement matters. I have also served as the U.S. Chamber of
Commerce's Senior Counsel for Environment, Technology, and
Regulatory Affairs, and as an adjunct professor of
environmental law at the Western New England School of Law.
I am testifying today on behalf of the U.S. Chamber
Institute for Legal Reform. ILR promotes civil justice reform
through legislative, political, judicial and educational
activities at the National, State, and local levels. The U.S.
Chamber is the world's largest business federation representing
the interest of more than 3 million businesses and
organizations of every size, sector and region. ILR strongly
supports the Lacey Act's important fish, wildlife, and plant
conservation goals. However, the statute is deeply flawed and
reform is needed. To begin with, the Act is an exemplar for the
vice of overcriminalization. It lacks a meaningful mens rea,
wrongful intent requirement. Instead, it uniquely imposes
vicarious criminal and civil liability on American citizens for
violations of a vast unchartered universe of foreign laws,
regulations, decrees, and ordinances.
As enforced, American musicians, fishermen, and florists
are deemed to know all potentially applicable foreign
requirements and then required to guess at the risk of their
liberty and property how these requirements will be interpreted
by both foreign, and U.S. regulators.
This offends basic principles of due process, equity, and
prudence without materially advancing the Act's purposes. Also,
when Congress amended the Lacey Act in 2008 and enacted 16 USC
Section 3374(d), it did on so protect innocent owner's right
under the Civil Asset Forfeiture Reform Act, or CAFRA, these
rights to recover properties seized by the government under
Lacey. Congress did this to account for the practical
compliance difficulties, created by its 2008 expansion of Lacey
liability to plants and plant products, and to cure a 2005
Ninth Circuit ruling striking CAFRA's innocent owner
affirmative defense because the court there deemed all
properties seized by the government under Lacey at all times to
be contraband.
The government continues to apply the punitive Ninth
Circuit rule, but punishing objectively blameless persons who
act with due care has not been proven to materially enhance the
Act's protection of endangered fish, wildlife, or plants, and
it is inconsistent with basic U.S. legal norms.
ILR believes that Congress should reform the Lacey Act to
cure these serious flaws. Therefore, it applauds Representative
Cooper for introducing the RELIEF Act, and Representative Broun
for introducing the FOCUS Act. These bills demonstrate that
there is bipartisan support both for a congressional hard look
at the Act, and for implementation of the commonsense reforms
needed to remedy the Act's unintended consequences.
As a general matter, ILR believes that Congress' hard look
should include whether the Act includes an adequate wrongful
intent requirement; appropriately defines both the guilty act,
and the intent required in specific and unambiguous terms;
provides a clear statement whether the intent requirement
applies to all elements of the offense, or if not, which mens
rea terms apply to which elements of the offense.
And finally, whether or not the Act sets proper limits on
the delegated criminal law making authority of regulators. At a
minimum, ILR believes that Congress should cabin the foreign
laws that Lacey jeopardy triggers to provide Americans with
fair notice of prohibited conduct, and to prevent arbitrary and
discriminatory enforcement and prosecution. Also, Congress
should solve the contraband issue by explicitly providing that
innocent owners, as defined by CAFRA, may recover their
property. Both the FOCUS Act and the RELIEF Act should play an
important role in the Lacey reform process.
The FOCUS Act addresses the overcriminalization and due
process problems by striking foreign law references and
criminal sanctions, but retains the due care standard for civil
liability, which seems adequate, appropriate, and beneficial in
this context.
The RELIEF Act provides useful language for finally solving
the contraband issue so that innocent owners are entitled to
CAFRA's protections. This is not something new. This is what
Congress intended in 2000 when it enacted CAFRA, and then
amended Lacey in 2008 to provide such protection. And this is
what Congress intended and it is time now to finish the job.
The Lacey Act deserves congressional support, let us be
clear. And Congress can do this best by ensuring that the Act
is properly aligned with our most fundamental legal norms and
values. Thank you for your attention.
[The prepared statement of Mr. Rubinstein follows:]
Statement of Reed D. Rubinstein, Esq., Partner, Dinsmore & Shohl LLP,
on behalf of the U.S. Chamber of Commerce's Institute for Legal Reform
Good afternoon, Chairman Fleming, Ranking Member Sablan, and
members and staff of the Subcommittee on Fisheries, Wildlife, Oceans
and Insular Affairs. I am Reed D. Rubinstein, a partner in the
Washington, D.C. office of Dinsmore & Shohl, LLP. For twenty-five
years, I have practiced environmental and administrative law, defending
individuals and companies in federal civil and criminal enforcement
matters. I also have served as the U.S. Chamber of Commerce's Senior
Counsel for Environment, Technology and Regulatory Affairs, and as an
adjunct professor of environmental law at the Western New England
School of Law.
I am testifying today on behalf of the U.S. Chamber's Institute for
Legal Reform (``ILR'') in support of Lacey Act reform. ILR promotes
civil justice reform through legislative, political, judicial and
educational activities at the national, state and local levels. The
U.S. Chamber is the world's largest business federation, representing
the interests of more than three million businesses and organizations
of every size, sector, and region.
I. SUMMARY
ILR strongly supports the Lacey Act's important fish, wildlife and
plant conservation goals. \1\ However, the statute is deeply flawed. To
begin with, the Act is an exemplar for the vice of over-
criminalization. It lacks a meaningful mens rea (wrongful intent)
requirement, instead imposing vicarious criminal and civil liability on
American citizens for violations of a vast, uncharted universe of
foreign laws, regulations, decrees and ordinances.\2\ As enforced,
American musical instrument makers, fishermen, and florists are deemed
to ``know'' all potentially applicable foreign requirements and then
required to guess, at the risk of their liberty and property, how these
requirements will be interpreted by both foreign and U.S. regulators.
This offends basic principles of due process, equity and prudence.\3\
---------------------------------------------------------------------------
\1\ 18 U.S.C. Sec. Sec. 42--43; 16 U.S.C. Sec. 3371 et seq.
\2\ That these foreign ``laws'' lack a direct nexus to fish,
wildlife or plant conservation, or provide only for civil fines, or
even are ruled invalid and retroactively repealed by the government
that enacted them in the first instance, is of no moment. See generally
United States v. McNab, 324 F.3d 1266, 1268 (11th Cir.) cert. denied
540 U.S. 1177 (2004); United States v. Lee, 937 F.2d 1388, 1393 (9th
Cir.) cert. denied 502 U.S. 1076 (1992).
\3\ See generally City of Chicago v. Morales, 527 U.S. 41 (1999);
Grayned v. City of Rockford, 408 U.S. 104, 108 (1972).
---------------------------------------------------------------------------
Also, Congress enacted 16 U.S.C. Sec. 3374(d) to protect innocent
owners' rights under the Civil Asset Forfeiture Reform Act (``CAFRA'')
\4\ to recover property seized by the government under Lacey. Congress
did this to account for the practical compliance difficulties created
by its 2008 expansion of Lacey liability to plants and plant products,
and to cure a 2005 Ninth Circuit ruling striking CAFRA's innocent owner
affirmative defense because it deemed all property seized by the
government under Lacey to be ``contraband.'' \5\ However, the
government continues to apply the punitive Ninth Circuit rule.
Punishing objectively blameless persons who act with due care has not
been proven to materially enhance the Act's protection of endangered
fish, wildlife or plant populations, and is inconsistent with basic
U.S. legal norms.
---------------------------------------------------------------------------
\4\ 18 U.S.C. Sec. Sec. 981, 983(d)(1).
\5\ See Testimony of Craig Foster, Legal Timber Protection Act:
Hearing on H.R. 1497 Before the Subcomm. on Fisheries, Wildlife and
Oceans of the H. Comm. on Natural Resources, 110th Cong. at 55
(2007)(discussing compliance barriers and explaining that ``it is
necessary to understand that long supply chain and the fact that there
are many people along that supply chain. . .I cannot audit the entire
supply chain. . .Criminal behavior is criminal behavior. All I can do
is work with the best of my knowledge''); United States v. 144,774
Pounds of Blue King Crab, 410 F.3d 1131 (9th Cir. 2005).
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ILR believes that Congress should reform the Lacey Act to cure
these serious flaws. Therefore, it applauds Rep. Cooper, for
introducing H.R. 3210 (the ``RELIEF Act''), and Rep. Broun, for
introducing H.R. 4171 (the ``FOCUS Act''). These bills demonstrate that
there is bipartisan support both for a Congressional ``hard look'' at
the statute and for implementation of the common-sense reforms needed
to remedy the Act's unintended consequences.
As a general matter, ILR believes the ``hard look'' at Lacey should
include whether the Act: (1) includes an adequate mens rea requirement;
(2) appropriately defines both the actus reus (guilty act) and the mens
rea of the offense in specific and unambiguous terms; (3) provides a
clear statement of whether the mens rea requirement applies to all the
elements of the offense or, if not, which mens rea terms apply to which
elements of the offense; and (4) sets proper limits on the delegated
criminal lawmaking authority of regulators.\6\ At a minimum, ILR
believes that Congress should cabin the foreign laws that are Lacey
jeopardy ``triggers'' to provide Americans with fair notice of
prohibited conduct and to prevent arbitrary and discriminatory
enforcement and prosecution. Also, Congress should solve the contraband
issue by explicitly providing that innocent owners, as defined by
CAFRA,\7\ may recover property seized by the government under Lacey.
---------------------------------------------------------------------------
\6\ See generally Walsh & Joslyn, Without Intent: How Congress Is
Eroding the Intent Requirement in Federal Law 26--31 (2010) available
at http://www.nacdl.org/withoutintent/(accessed May 3, 2012).
\7\ 18 U.S.C. Sec. Sec. 983(d)(2)--(3).
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II. DISCUSSION
A. Lacey Act Background
Passed by Congress in 1900, the Lacey Act was the first federal
wildlife protection law. In its initial iteration, the Act supported
state game animal and bird protection efforts by prohibiting the
interstate shipment of wildlife killed in violation of state or
territorial law, requiring wildlife to be clearly marked when shipped
in interstate commerce, banning the importation of certain animals
(including English sparrows) that could harm U.S. crop production and
authorizing the federal government to preserve and restore game bird
populations.\8\ Amendments in 1935 prohibited interstate commerce in
wildlife captured or killed in violation of any federal or foreign law.
Amendments in 1945 banned the importation of wildlife under ``inhumane
or unhealthful'' conditions.\9\ Amendments in 1981 diluted the mens rea
requirement from ``willfully'' to ``knowingly.'' \10\ And, amendments
in 2008 criminalized the import, export, transport, sale, receipt,
acquisition or purchase of any plant or plant product taken, possessed,
transported or sold in violation of any domestic or foreign law.\11\
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\8\ U.S. Fish & Wildlife Service, ``Nation Marks Lacey Act
Centennial, 100 Years of Federal Wildlife Law Enforcement,'' available
at http://www.fws.gov/pacific/news/2000/2000-98.htm (accessed May 2,
2012).
\9\ Id.
\10\ See Lacey Act Amendments of 1981, Pub. L. 97-79.
\11\ 16 U.S.C. Sec. 3372(a)(2).
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B. Lacey Act Structure
The Lacey Act uniquely subjects American citizens to domestic
jeopardy for the violation of a foreign sovereign's enactments.\12\ 16
U.S.C. Sec. 3373 imposes strict civil and criminal liability for
conduct ``in violation of, or in a manner unlawful under, any
underlying law'' that is ``prohibited'' by the Act, subject only to a
``due care'' defense. Section 3372(a)(2) prohibits any person to
``import, export, transport, sell, receive, acquire, or purchase in
interstate or foreign commerce'' any fish or wildlife ``taken,
possessed, transported or sold in violation of. . .any foreign law,''
and plants ``taken, possessed, transported or sold in violation of. .
.any foreign law''' including laws governing the payment of appropriate
royalties, taxes or stumpage fees and ``the export or transshipment''
thereof. Section Sec. 3371(d) defines ``law'' to mean ``laws, treaties,
regulations or Indian tribal laws which regulate the taking,
possession, importation, exportation, transportation, or sale of fish
or wildlife or plants.''
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\12\ United States v. McNab, 324 F.3d 1266, 1274 (Fay, J.
dissenting) (``the Lacey Act, by its very terms, is dependent upon the
laws of a foreign sovereign''), cert. denied 540 U.S. 1177 (2004). As
the Deputy Assistant Attorney General for Environment and Natural
Resources Division of the U.S. Department of Justice testified in 2007:
One unique feature of the Lacey Act is that it allows the
incorporation of foreign law as an underlying law or predicate offense
that ``triggers'' a Lacey Act violation. . .The law or regulation must
be of general applicability, but may be a local, provincial, or
national law. The defendant need not be the one who violated the
foreign law. . .However, the defendant must know or, in the exercise of
due care, should know, about its [violation].
See Testimony of Eileen Sobeck Before the Subcommittee on
Fisheries, Wildlife and Oceans, Committee on Natural Resources, U.S.
House of Representatives Concerning H.R. 1497 at 4 (Oct. 16, 2007)
available at http://naturalresources.house.gov/uploadedfiles/
sobecktestimony10.16.07.pdf (accessed May 2, 2012).
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Lacey Act civil liability and criminal penalties attach when ``in
the exercise of due care'' a defendant ``should know'' that the fish,
wildlife or plants were taken in violation of the underlying law.\13\
The Act does not define ``due care.'' The legislative history states
that ``[d]ue care simply requires that a person facing a particular set
of circumstances undertakes certain steps which a reasonable man would
take to do his best to insure that he is not violating the law.'' \14\
No clarifying regulations have been issued by any enforcing federal
agency.\15\ However, in 2010, the United States Department of
Agriculture Animal and Plant Health Inspection Service identified
``Tools to Demonstrate Due Care'' in a PowerPoint presentation.\16\
These included ``asking questions,'' ``compliance plans,'' ``industry
standards,'' ``records of efforts,'' and, helpfully, ``changes in above
in response to practical experiences.'' \17\
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\13\ See 16 U.S.C. Sec. 3373.
\14\ Lacey Act Amendments of 1981, S. Rep. No. 97-123, 97th Cong.,
1st Sess. 10-12 (1981); 1981 U.S.C.C.A.N. 1758-59. The Committee
explained:
[D]ue care means that degree of care which a reasonably prudent
person would exercise under the same or similar circumstances. As a
result, it is applied differently to different categories of persons
with varying degrees of knowledge and responsibility. For example, zoo
curator's [sic], as professionals, are expected to apply their
knowledge to each purchase of wildlife. If they know that a reptile is
Australian and that Australia does not allow export of that reptile
without special permits, they would fail to exercise due care unless
they checked for those permits. On the other hand, the airline company
which shipped the reptile might not have the expertise to know that
Australia does not normally allow that particular reptile to be
exported. However, if an airline is notified of the problem and still
transships the reptile, then it would probably fail to pass the due
care test.
Id.
\15\ Tanczos, A New Crime: Possession of Wood--Remedying the Due
Care Double Standard of the Revised Lacey Act, 42 Rutgers L. J. 549,
567 (2011).
\16\ U.S.Dep't of Agric., Lacey Act Primer 20 (April 2010)
available at http://www.aphis.usda.gov/plant_health/lacey_act/
downloads/LaceyActPrimer.pdf (accessed May 3, 2012).
\17\ Id. As one environmental group has correctly noted, ```Lacey
compliance' is not defined by any one document, checkbox, due diligence
system or due care check-list, and do not expect the U.S. government to
provide that.'' EIA, Setting the Story Straight--The U.S. Lacey Act:
Separating Myth from Reality 2 (2010) available at http://www.eia-
global.org/PDF/Report--Mythbusters--forest--Jan10.pdf (accessed May 3,
2012).
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C. The Lacey Act's Flaws Lead To Absurd And Unjust Results
The Lacey Act's broad liability scheme charges Americans to know
and ``properly'' interpret the statutory and regulatory minutiae of
fishery, wildlife and forest management, tax, customs, logging,
commercial and real property '' law'' in places like Indonesia,
Vietnam, Peru and China.\18\ It then requires our citizens to
``verify'' that foreign actors in a supply chain that may span
countries rife with legal inefficiency, imprecision and corruption
appropriately ``comply'' with all of these laws.\19\ Finally, the
statute's non-existent limits on regulatory discretion empower U.S.
regulators to ``Monday Morning Quarterback'' good faith interpretative
and verification efforts, and then to raid and prosecute anyone whom
the government decides has failed to measure up. This leads to absurd
results.
---------------------------------------------------------------------------
\18\ According to the government, ``It is the responsibility of the
importer to be aware of any foreign laws that may pertain to their
merchandise prior to its importation into the United States.'' See
Animal & Plant Health Inspection Serv., U.S. Dep't of Agric., Lacey Act
Amendments: Complete List of Questions and Answers 2 (Feb. 16, 2012)
available at http://www.aphis.usda.gov/plant_health/lacey_act/
downloads/faq.pdf (accessed May 3, 2012)(emphasis added).
\19\ Indonesia, for example, has over nine hundred laws,
regulations, and decrees that govern timber exploitation,
transportation, and trade. Saltzman, Establishing a ``Due Care''
Standard Under the Lacey Act Amendments of 2008, 109 Mich. L. Rev.
First Impressions 1, 6 (2010). Further complicating the matter is the
problem of corrupt foreign governments and regulatory ``agencies.''
Consider, for example, the case of Bigleaf mahogany imports from
Peru. . .Peruvian officials have. . .supplied false documentation for
these products. . .Not only was timber being illegally harvested in
Peru, but illegal timber was also being moved into Peru from
neighboring countries to be laundered. . .Such ``deeply entrenched
patronage systems'' are most often linked to political networks. .
.Clearly, it is wrong to require U.S. importers to comply with a myriad
of foreign laws when the governments enacting these laws not only fail
to adhere to them, but seem to be at the very root of the problem.
See 42 Rutgers L. J. at 572 (citations omitted); see also Henry
Juszkiewicz, Repeal the Lacey Act? Hell No, Make It Stronger! The
Huffington Post Green Blog (Nov. 2, 2011) available at http://
www.huffingtonpost.com/henry-juszkiewicz/gibson-guitars-lacey-
act_b_1071770.html (accessed May 5, 2012) (``The U.S. should also use
the power of the marketplace to encourage sustainable harvesting
practices in countries whose forestry systems are rife with graft and
corruption'')(emphasis added).
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For example, on August 24, 2011, Gibson Guitar factories in
Nashville and Memphis were raided by armed agents from the Department
of Homeland Security and the U.S. Fish & Wildlife Service.\20\ The
company was not accused of importing banned wood. \21\ Rather, the raid
apparently occurred because Gibson ran afoul of a technical Indian
regulation governing the export of finished wood products, which was
designed to protect Indian woodworkers from foreign competition.\22\ To
make matters worse, although the Indian government certified that the
wood was properly and legally exported, the regulators substituted
their own opinion to create a Lacey Act violation.\23\ To this day, the
government refuses either to return the company's goods or to allow
Gibson its day in court to contest the seizure.
---------------------------------------------------------------------------
\20\ According to Juszkiewicz ``They...come in with weapons, they
seized a half-million dollars worth of property, they shut our factory
down, and they have not charged us with anything'', quoted on Reason
TV, available at http://www.liveleak.com/view?i=cd2_1330024001
(accessed May 5, 2012).
\21\ See Affidavit of Special Agent John M. Rayfield in support of
Search Warrant 11-MJ-1067 A, B, C, D at para.para. 15-18 (Aug. 18,
2011) available at http://www.scribd.com/srcohiba/d/63869457-US-
Government-s-Affidavit-in-Support-of-Search-Warrant-at-Gibson-Guitar-
Factory (accessed May 4, 2012).
\22\ Juszkiewicz, supra at note 19.
\23\ Apparently, Gibson was advised by the U.S. government that if
it finished its guitar fingerboards using Indian labor rather than
Tennessee craftsman, the Lacey Act issue would not exist. Juszkiewicz,
supra at note 19.
---------------------------------------------------------------------------
In another notorious case, on the basis of an ``anonymous
facsimile'' Americans were convicted and sent to prison for importing
lobster tails from Honduras in plastic bags, rather than in boxes as
``required'' by a Honduran ``regulation.'' Also, a ``significant number
[of the lobsters] had a tail length that was less than the 5.5 inches
required'' by the Hondurans for export.\24\ Although the Honduran
government averred that the ``laws'' supposedly violated by the
defendants were either invalid at the time of the lobster shipment or
had been retroactively repealed, the Eleventh Circuit upheld the
criminal convictions and ruled: ``Although Lacey Act offenses are
predicated upon violations of [foreign] law, the statute nowhere states
that a viable or prosecutable [foreign] law violation is necessary to
support federal charges. . .Thus, the subsequent invalidation of the
underlying foreign laws does not make the defendants any less culpable
for their actions.'' \25\
---------------------------------------------------------------------------
\24\ McNab, 324 F.3d at 1268.
\25\ Id. at 1270 (citations omitted).
---------------------------------------------------------------------------
III. KEY LACEY ACT CONCERNS
A. The ``Over-criminalization'' Problem
The Lacey Act is an exemplar for the vice of over-criminalization.
``Over-criminalization'' is seen in Congressional enactments that
expand criminal liability to individuals who hardly seem blameworthy,
including strict liability offenses that dispense with culpable mental
states; vicarious liability for the acts of others without some
evidence of personal advertence; grossly disproportionate penalties
that bear no relation to the wrongfulness of the underlying crime, the
harmfulness of its commission, or the blameworthiness of the criminal;
and the broad delegation of criminal enforcement authority to
bureaucratic regulators.\26\ Such enactments corrode individual civil
liberties.
---------------------------------------------------------------------------
\26\ See Luna, The Overcriminalization Phenomenon, 54 American
Univ. L. Rev. 703, 715 (2005).
---------------------------------------------------------------------------
The Lacey Act does all of these things. It holds Americans
vicariously liable for the violation of even the most technical foreign
law, rule or local ordinance without evidence of personal advertence or
intent. It penalizes without relation to the harm done by the
``violator'' to fish, wildlife or plant populations. It criminalizes
obscure foreign requirements, including civil customs, transportation,
and packaging rules and even local tax or royalty ordinances, and then
delegates unlimited prosecutorial power to federal regulators.
Perversely, the Lacey Act unleashes the coercive power of the federal
government not against the corrupt and lawless foreign individuals,
companies and governments that allow, encourage or conduct poaching,
clear-cutting and environmental degradation, but rather against
Americans who are innocent of wrong-doing, by any common measure.
The U.S. Supreme Court has repeatedly held that a criminal law is
unconstitutionally vague and invalid if it fails to provide the kind of
notice that will enable ordinary people to understand what conduct it
prohibits, or if it authorizes or encourages arbitrary and
discriminatory enforcement.\27\ The Court has not considered whether
Lacey's ``foreign laws'' references pass constitutional muster.
However, at best it is very difficult to justify the legal fiction that
the owner of a small business in Topeka, Kansas who imports wooden-
handled brooms from China has fair notice of and understands the
conduct prohibited by all applicable national, provincial and local
Chinese civil and criminal laws, regulations, ordinances and
requirements.\28\ Also, the Gibson Guitar case starkly illustrates the
statute's inherently subjective, arbitrary and discriminatory
enforcement regime.\29\ Although the Indian government certified that
the wood there in question was properly and legally exported, the U.S.
Fish and Wildlife Service substituted its own opinion and dispatched
armed agents to raid the company.\30\ The fact that U.S. regulators can
do such a thing certainly suggests that the Act may be tainted by a due
process infirmity.
---------------------------------------------------------------------------
\27\ Morales, 527 U.S. at 56 (citation omitted). As the Court held
long ago:
That the terms of a penal statute. . .must be sufficiently explicit
to inform those who are subject to it what conduct on their part will
render them liable to its penalties, is a well-recognized requirement,
consonant alike with ordinary notions of fair play and the settled
rules of law. And a statute which either forbids or requires the doing
of an act in terms so vague that men of common intelligence must
necessarily guess at its meaning and differ as to its application,
violates the first essential of due process of law.
Connally v. General Constr. Co., 269 U.S. 385, 391 (1925).
\28\ The Ninth Circuit has held that the term ``foreign law''
enables an ordinary person to understand the prohibited conduct in a
given case. Lee, 937 F.2d at 1395. Yet, the court did not explain how,
exactly, American fishermen were supposed to identify or understand
applicable Taiwanese regulations.
\29\ ``A vague law impermissibly delegates basic policy matters to
policemen, judges, and juries for resolution on an ad hoc and
subjective basis, with the attendant dangers of arbitrary and
discriminatory application.'' Grayned, 408 U.S. at 108 (citations
omitted). The Gibson case, in which U.S. regulators rejected the Indian
government's interpretation of Indian law, and the McNab decision, in
which a U.S. court rejected the Honduran government's interpretation of
Honduran law, demonstrate that Lacey Act enforcement is ``ad hoc and
subjective'' because U.S. regulators apparently are free to interpret
and apply foreign law as they see fit. See generally Morales, 527 U.S.
at 41 (striking down an ordinance providing absolute discretion to
police officers to determine prohibited ``loitering'').
\30\ Juszkiewicz, supra at note 19.
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B. The ``Contraband'' Problem
In 2008, Congress amended Lacey by adding 16 U.S.C. Sec. 3374(d).
This section states that Lacey Act forfeitures of fish, wildlife or
plants are subject to the Civil Asset Forfeiture Reform Act
(``CAFRA'').\31\ Among other things, CAFRA states that an innocent
owner's interest in property shall not be forfeited under any civil
forfeiture statute.\32\ Congress enacted Sec. 3374(d) to account for
the practical compliance difficulties caused by Lacey liability
expansion to plant products,\33\ and to cure a Ninth Circuit ruling in
the case of United States v. 144,774 Pounds of Blue King Crab that
essentially holds that all fish, wildlife or plants seized under the
Lacey Act are ``contraband,'' nullifying the innocent owner defense in
all such cases.\34\
---------------------------------------------------------------------------
\31\ 18 U.S.C. Sec. 981 et seq. In 2000, Congress enacted CAFRA and
created the ``innocent owner'' affirmative defense to cure the
government's ``abuses of fundamental fairness'' and to ensure that
property owners obtain adequate due process in civil forfeiture cases.
See generally Moores, Reforming The Civil Asset Forfeiture Reform Act,
51 Ariz. L. Rev. 777, 782--83 (2009)(citations omitted).
\32\ 18 U.S.C. Sec. 983(d)(1). Sections 983(d)(2) and (3) set the
criteria for proof of innocence.
\33\ As the House Report on H.R. 1497 (subsequently enacted as
Sec. 8204 of the Food, Conservation and Energy Act of 2008, Pub. L.
110-246) states:
Under Lacey, the entire supply chain handling imported plant
material is held responsible for illegal acts of which they would have
no reasonable expectation to know the violation much less know the
underlying laws that exist in all foreign countries. Amending the Lacey
Act to include reaffirmation of CAFRA provides important forfeiture
liability protection for ``innocent owners''. . ..Recent case law had
effectively exempted Lacey Act forfeitures from the ``innocent owner''
defense. . .[so] the specificity of language in H.R. 1497 and specific
reference to CAFRA subsequent to the [Blue King Crab] case are intended
to clearly show that it is Congress' intent to provide ``innocent
owner'' [sic] in forfeiture proceedings under the Lacey Act.
House Rep. 110-882, at 20-21; see also 42 Rutgers L. Rev. at 576--
78 (discussing the ``missing'' innocent owner exception under
Lacey)(citations omitted).
\34\ 18 U.S.C. Sec. 983(d)(4) states ``Notwithstanding any
provision of this subsection, no person may assert an ownership
interest under this subsection in contraband or other property that it
is illegal to possess.'' The Ninth Circuit ruled that all property
seized under Lacey was by definition ``illegal to possess'' and
therefore ruled that the innocent owner affirmative defense to
forfeiture should be stricken. Blue King Crab, 410 F.3d at 1135--36.
---------------------------------------------------------------------------
Notwithstanding Sec. 3374(d)'s enactment, the government apparently
still denies innocent owners the benefit of CAFRA's protection. This is
puzzling, because to do this the government must hold, contrary both to
controlling authorities and to the legislative history, that
Sec. 3374(d) is superfluous.\35\ Furthermore, punishing objectively
blameless persons who act with due care does not materially advance the
statute's goal of fish, wildlife and plant conservation, and offends
basic U.S. legal norms. In circumstances where an importer reasonably
cannot have knowledge of illegality, the government's approach seems to
directly counter what Congress intended to do via Sec. 3374(d) and
CAFRA itself.\36\
---------------------------------------------------------------------------
\35\ The government's position contradicts the basic canon of
statutory interpretation that Congress does not enact superfluous
provisions. See, e.g., Bailey v. United States, 516 U.S. 137, 146
(1995)(citations omitted).
\36\ 42 Rutgers L. Rev. at 578 (citations omitted); 51 Ariz. L.
Rev. 782--83 (citations omitted).
---------------------------------------------------------------------------
IV. POTENTIAL SOLUTIONS: THE FOCUS AND RELIEF ACTS
The Lacey Act's fish, wildlife and plant conservation goals are
worthy and deserve strong Congressional support. Nevertheless, the
Act's minimal mens rea threshold and its overly broad reliance on
``foreign law'' to create domestic jeopardy require a Congressional
remedy. At a minimum, Congress should cabin the foreign laws that serve
as jeopardy ``triggers'' to provide Americans with fair notice of
prohibited conduct. U.S. courts, agencies and citizens all would
benefit from clear ``rules of the road'' to prevent arbitrary and
discriminatory enforcement and prosecution, and companies like Gibson
ought to be able to rely on the Indian government's interpretation of
Indian law as a defense to Lacey liability.\37\ Additionally, the
``contraband'' issue must be addressed to better align the Act with
both the practical realities of the marketplace and with basic Anglo-
American legal norms.
---------------------------------------------------------------------------
\37\ See Juszkiewicz, supra at note 19. Congress also should
consider re-examining whether, and to what extent, the Act's broad
criminal and civil sanctions and its minimal mens rea requirements
actually advance its conservation goals. As Gibson CEO Juszkiewicz
points out, limited government enforcement dollars may be better
devoted to fighting illegal logging and poaching by bad actors, and not
to fights with American companies that try hard to comply with the law.
Thus, he quite reasonably suggests creation of a compliance system that
would allow businesses to know before they buy wood and other plant
products whether or not they are in compliance with the Act. Id.
---------------------------------------------------------------------------
Both the FOCUS Act and the RELIEF Act should play an important role
in the Lacey Act reform process. The FOCUS Act (H.R. 4171) addresses
the Act's over-criminalization and due process problems by striking
both the Act's foreign law references and its criminal sanctions.\38\
It retains the ``due care'' standard for civil liability and potential
forfeiture, which seems adequate, appropriate and beneficial in this
limited context.\39\ It also limits the reach of the Act's forfeiture
provision to the prohibited fish, wildlife and plants only. The RELIEF
Act (H.R. 3210), in turn, provides useful language for finally
resolving the ``contraband'' issue so that innocent owners are entitled
to CAFRA's protection.\40\ This is what Congress intended to do when it
enacted 16 U.S.C. Sec. 3374(d) in 2008. It is time now to finish the
job.
---------------------------------------------------------------------------
\38\ H.R. 4171, Sec. Sec. 2(a), (b).
\39\ Id. Sec. 2(c). The goal, of course, is for Congress to improve
the Act and make its scope and application more clear without imposing
limited, artificially rigid and commercially inadequate enforcement or
interpretative checklists on the regulated community.
\40\ H.R. 3210 Sec. 3(a).
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V. CONCLUSION
We thank you for your attention to this important matter and look
forward to working with you.
______
Dr. Fleming. Thank you, Mr. Rubinstein. At this point, we
will begin Member questioning of the witnesses to allow all
Members to participate, and to ensure we hear from all of our
witnesses today, Members are limited to 5 minutes for their
questions. However, if Members have additional questions, we
can have more than one round of questioning.
I now recognize myself for 5 minutes. This really is a
very, very interesting, and very, very important issue that
affects, I think, many parts of what we do as a people, and the
laws that affect this land. I have to say that as a
Congressman, and more so as an American, I am offended by the
fact that the government can go in and seize someone's property
as contraband, and that company not have its day in court, or
that person. And with respect to considering those people as
criminals, we are talking about Gibson Guitar, or Gibson
Instruments, actually.
And then, I think it was Mr. Gardner, I believe it was, you
made reference to the fact that it would be sort of like a
protect--in that someone going into your home and stealing your
property and you have no way of recovering it.
Well, that is exactly what the Federal Government is doing
in this case, going in and raiding companies who have, at least
in their view, and in the case of foreign countries, have
determined that they have broken no laws, and yet things are
taken from them, confiscated, and not returned, and not have a
day in court.
I am also very disturbed by the whole idea that somehow
that A, a citizen, or a citizen company, must know the laws of
another company--excuse me, of another country, but also must
comply with those laws. I am very disturbed by the fact that,
how in the world can someone operate, particularly in this
worldwide economic environment, that a company dealing with
vendors, dealing with other countries around the world, must
somehow know, understand, and read all of the laws of the
world? I find that amazing, and I would question that it is
even constitutional.
Ms. Harman, I have a question for you. What is the number
of declaration documents your members filed with the APHIS in
2011?
Ms. Harman. Mr. Chairman, I can get you additional
information on that. As you have heard, the pulp and paper
products declarations have not yet come into effect as a result
of the law, neither have the declaration requirements for
composite wood products. So from our members, the types of
products that our members might be importing may not yet be
covered. But primarily, our members are in the business of
producing products here in the U.S. They work in a global
supply chain, and so they are concerned, and they do have
issues around those declarations, but those issues, we think,
are best resolved administratively, and working through a
consensus process to develop exactly what it is that is needed.
Dr. Fleming. To get back to my point, it is our
understanding that there are 40,000 a month that is being
filed.
Ms. Harman. That may be broadly. The people who are filing
those declaration requirements may not be my members.
Dr. Fleming. What about, do you have any idea of the cost?
Do you have any cost estimates as to what it is currently to
comply, or into the future?
Ms. Harman. Well, I think the big, I don't have a dollar
number to give new terms of compliance. I think the biggest
piece in the Lacey Act, and the exercise of due care, many of
those things are things that responsible corporate citizens are
already doing. They are asking their suppliers, they are asking
their supply chain to verify where their raw material came
from. Many companies have strong sustainability statements, and
in fact, have those questionnaires.
Dr. Fleming. Well, if it is being done at the point of
declaration, why does it also have to be done again? It seems
like, to me, that is a duplication.
Ms. Harman. I am not sure I understand your question.
Dr. Fleming. Yeah, when stuff is imported, there has to be
a papers filled out, a declaration.
Ms. Harman. Right.
Dr. Fleming. And then we are talking about the additional
filing of documents even after that, so it seems to me that is
redundant.
Ms. Harman. Well, the primary filing is the declaration.
That is where you are identifying what the species and the
genus is and where it comes from. The primary documentation is
at the point of importation.
Dr. Fleming. Yeah, any other witnesses would like to
respond to that, would have anything more to add to the
declaration process, the cost, the paperwork, et cetera?
Mr. Rey. I think the only thing that I would add is that
that is one of the areas where the consensus discussions have,
I think, begun to bear the most fruit. And there are some areas
of agreement that have been submitted to the agencies, and that
hopefully will be reflected in the report that the agencies
transmit to Congress, where the declaration process can be
improved.
I am not part of those consensus discussions, so I am not
necessarily going to be able to give you the details, but I can
provide some of that material for the record in terms of what
has already been submitted to the agencies.
Dr. Fleming. OK. Thank you. My time is up. We have one
other Member on the dais--Dr. Harris from Maryland.
Dr. Harris. Thank you very much, and thank you very much
for holding this hearing, Mr. Chairman, because as you may or
may not know, I have Paul Reed Smith Guitars in my district,
and when I took a tour through their factory a year ago, the
one thing we asked them how we help you with the Federal
Government, the only word they said was Lacey.
Anyway, let me ask you. Mr. Gardner, you testified that as
far as you know, no individual has had their guitar seized or,
you may not have used the term ``seized,'' but, you know, we
live in a strange time, because I don't know if you read, you
know, the EPA regional administrator in Texas the other day
said, well, you know, our idea of enforcement is, you know, the
same things the Romans used to do. Go into a little town in
Turkey, crucify five people, everybody else complies.
The current law doesn't stop the government from seizing
someone's musical instrument. It is perfectly within the realm
of the Administration. If they decide that they want to make a
case of someone owning a guitar that may have illegally
obtained wood in it, or abalone or some other material, is it
your understanding the law certainly would allow the government
to do that under the Lacey Act? I don't care whether it has
been done before or not.
Mr. Gardner. Yeah, obviously it hasn't.
Dr. Harris. The government has the power to do it, don't
they?
Mr. Gardner. All I know I am not concerned about it. There
has been clear statements from both the DOJ and FWS that they
were not going after individuals. There is clear history of
this not happening and other laws like this, where it is not
practical for them to go after individuals with limited
resources that they have. This is a law about illegal trading
of illegal logging, and is something that is obviously
organized-crime oriented and not going after the individual
musician who has bought a vintage guitar.
Dr. Harris. Sure. Mr. Rubinstein, I am not a lawyer, I am a
doctor, but my understanding is, this law could clearly apply
to an individual who possesses a musical instrument that has
wood that was questionably obtained illegally in a foreign
country, is that right?
Mr. Rubinstein. Your understanding is correct.
Dr. Harris. So let me get the picture straight because I
never even heard of the Lacey law until I visited Paul Reed
Smith Guitars. So you have some music lover who wants to have a
high-quality guitar, and they go on eBay and they buy--and I
searched eBay after I visited the plant because I couldn't
believe how much these sell for, so I searched them and boy,
they are pricey. So someone could buy it, and my understanding
of the law is that the seller and the buyer both technically
violate the law in that transaction. Is that right? Someone who
owns that?
Mr. Rubinstein. That is correct.
Dr. Harris. And the penalty is confiscation, but I didn't
understand part of your testimony. The way it is written is if
they confiscate under it, they don't have to return it at any
point? Or----
Mr. Rubinstein. Well, if I could, sir. The penalties
include fines and in appropriate cases, imprisonment. The
statute has a felony provision and a misdemeanor provision. And
the standard of knowledge is different under the two of them.
That standard, which is due care, is highly elastic. It seems
to have been borrowed, in 1981. If you read the legislative
history, it seems to have been borrowed from tort law, more so
than traditional American, Anglo-American criminal law, and it
creates some problem.
The seizure provisions, though, are something separate, and
that goes to the RELIEF Act and its language, and CAFRA, the
Civil Assets Forfeiture Reform Act from 2000, which Congress,
in reaction to a variety of civil forfeiture laws over the
course of 20 years attempted to reform the process to ensure
that individuals and companies that had property seized have
the right to recover it provided they meet pretty rigorous
standard of proof that they are innocent.
In 2005, as I mentioned, the Ninth Circuit essentially held
that any property seized pursuant to Lacey is by definition,
contraband, which is excluded from the innocent owner
provisions in CAFRA. So in 2008, when Congress went ahead and
expanded Lacey, it specifically enacted a provision that says
we really mean it, that CAFRA, which by its terms, applies to
any civil forfeiture, applies also to----
Dr. Harris. To the Lacey Act.
Mr. Rubinstein.--to the Lacey Act. But my understanding is
that at this point in time, at least the government's position
is more in accord with the Ninth Circuit ruling, and as a
result, clarification, obviously, at least, in my view, is
required.
Dr. Harris. So just to get it straight, you could get
someone maybe who has the same attitude as that EPA
administrator in Texas who says, you know what we want to do,
we want to teach guitar owners a lesson. They shouldn't have
exotic illegal woods in their guitar. So we are going to take a
few of them. We are going to prosecute them. Now, I understand
it may just be a misdemeanor, may not even be a felony in that
case, but we are going to prosecute a few of them. That can all
happen under the current law, is that right?
Mr. Rubinstein. That is right. If I could just for the
record though, I want to be clear that the comments in response
to your questions are my opinion, not necessarily those of the
Chamber ILR.
Dr. Harris. Sure, I understand that.
Mr. Rubinstein. The answer to your question is, absolutely.
Dr. Harris. Thank you very much. Thank you, Mr. Chairman.
Mr. Rey. If I might, this is another area where the
consensus discussions I think are bearing some fruit in
developing an exemption for pre-2008 wood. I think there is
broad agreement that that should happen. What is now being
discussed is how to avoid having that exemption become a
broader loophole and create unintended consequences of its own.
Because unfortunately, just about every piece of legislation
has an unintended consequences, as well as intended ones.
Dr. Fleming. I would like to have another round. Would that
be OK with you, Dr. Harris?
I hear what you are saying, Mr. Rey, and then Mr. Gardner,
you said that you were, I think with this question, posed to
you, somewhat hypothetically, that you are comfortable that
nothing is going to happen, or nothing has happened, and then I
hear Mr. Rey talk about, yeah, with every law, we get the law
of unintended consequences. It goes along with that, and we
just need to fix that.
Well, these amendments were passed in 2008. That is 4 years
ago, and I am not aware of anything constructive that has been
done to resolve it. That is even, in fact, why we are here,
because nothing has been done administratively, apparently, and
with regard to your reassurances, Mr. Gardner, I am not
reassured at all because we just saw, as Dr. Harris points out,
what is happening in the EPA with intimidation. So if that is
allowed, then the DOJ, or any other agency can become overly
enthusiastic, overly committed in a certain direction, and take
advantage of it, and punish innocent Americans. And if we had
no other job up here than to at least protect Americans, and to
protect the constitutional aspects of American life, then I
don't know why we are up here.
So I just have to say that I am not reassured, but I do
have a question.
Mr. Gardner. Would it be possible for me to respond?
Dr. Fleming. I am sorry, I only have limited time here. Mr.
Rutenberg, Ms. Everill, in your professional opinions, have the
2008 amendments been successful in stopping the illegal
harvested wood and wood products?
Mr. Rutenberg. Thank you for asking, Mr. Chairman.
Probably, in my opinion, I am not the one with the best data on
that, but I would if I had a minute, I would like to amplify on
the last point. If I could add on that one, and the first part
has to do with knowledge and the second part has to do with
some recent court cases.
To be quick, I have been involved with the National Home
Builders for 12 years as head of their building materials task
force. I am a certified green professional. I serve on a number
of conservation boards. I just spent 4 days in class for a
masters certificate in green building. I can tell you that as
an active builder, I would not know what wood--I could have
wood on my job that would be subject to the Lacey Act, and not
know. No intentions that come through standard supply channels,
Home Depot, Lowe's, 84 Lumber and others. We don't buy them in
the gas stations at night off of the back of someone's truck.
We, the builders and remodelers and the customers out there
would not know when they are in trouble.
So we are very interested in the legal aspects and there
are two legal cases recently where EPA has come up. One was a
revocation of a 404 clean water permit. Another one had to do
with wetlands where people were not given the opportunity to
appeal. We were able to get favorable court rulings, but to
your question, there is enforcement going on on other actions
that does make me concerned. So it is a point of not knowing
what I am looking at, even though I am a trained professional
to that point; and two, we are seeing actions by various
regulatory agencies that would make me concerned.
Dr. Fleming. All right, thank you for that, Ms. Everill,
did you have anything to add, or additional comments?
Ms. Everill. I think what we would add is that while we
can't, you know, say specifically this is how much it has
impacted illegal logging, we can say it has generated
awareness. It has created awareness within the industries,
among the retail industry of those----
Dr. Fleming. Well, I bet it has provided awareness.
Everybody is shaking in their boots. Everybody is obviously
aware.
Ms. Everill. Yes, aware, but I think it is a deeper level
of awareness of what a due care program is and what it entails
other than asking for a piece of paper of genus and species and
country of origin. It is a much deeper program.
Dr. Fleming. So you really don't know either way.
Mr. Rey, you mentioned some statistics. I think you said 22
percent reduction in this and that.
Mr. Rey. 22 percent.
Dr. Fleming. Have you provided that documentation for us?
Mr. Rey. Yeah, it is in my statement for the record, and
the numbers----
Dr. Fleming. I know that the numbers are in your statement,
but do you actually have the proof that that has occurred? Do
you have that document?
Mr. Rey. I can submit the Chatham Report for the record of
the hearing.
Dr. Fleming. OK, now what report is this?
Mr. Rey. The Chatham Group is an international
nongovernmental organization that did the analysis country by
country, and we will provide that for the record.
Dr. Fleming. Who pays them for the work that they do?
Mr. Rey. I think that is in the--I don't know myself, but
it is in the synopsis of the report.
Dr. Fleming. OK, so an organization that we have never
heard of, that is paid by nobody that we know, has submitted
information that you are quoting to us today. We would like to
see something a little more solid. Do you perhaps, are there
some other authorities that may be better known and better
understood and less biased?
Mr. Rey. There is some United Nations reports that we can
submit.
Dr. Fleming. United Nations?
Mr. Rey. Right, for the record.
Dr. Fleming. That is definitely an unbiased body.
Mr. Rey. Well, some of these are numbers, you know. They
are what they are.
Dr. Fleming. Well, I mean my point here is, we are putting
a lot of people through a lot of stuff here. We are taking away
livelihoods. We are killing jobs. We are throwing people in
prison. We heard about the 97 months, and we can't really
document there is any good results from what we have done.
Mr. Rey. No, I disagree. I think the documentation of the
results over the past 4 years does exist, and we have saved
jobs in the wood products industry domestically, so there have
been trade-offs. And what we need to do now is to make sure
that as we go forward----
Dr. Fleming. Can you name the companies for the jobs were
saved?
Ms. Harman. I just had one in my testimony, Mr. Talbot is
sitting in the room.
Dr. Fleming. Who is that? Can you tell me again?
Ms. Harman. Mr. Talbot from Glen Oak Lumber. He had to
leave.
Dr. Fleming. The Lacey Act saved their jobs?
Ms. Harman. Well, the Lacey Act has helped to ensure that
people are looking for legal sources of raw material, and
looking for legally sourced products. And that was referred to
in my testimony, related to the uptick in some of the hardwood
lumber, or hardwood manufacturing industry, where they have, in
fact, seen an increased awareness that----
Dr. Fleming. Increased awareness?
Ms. Harman. The increased awareness that she mentioned has
translated into additional orders.
Dr. Fleming. Increased awareness has caused increased
orders. That kind of sounds like a little spin that we have
heard before, jobs saved, to me. In any event, I have gone past
my time, so I will yield to Dr. Harris.
Dr. Harris. Thank you very much, Mr. Chairman. Let me just
follow-up a little bit about that, how cumbersome some of these
regulations are, and where they could enter in. And I guess,
Mr. Gardner, you mentioned in your testimony, Bob Taylor of
Taylor Guitars, I guess, implying he was totally supportive of
the Lacey Act, but in a--I guess this isn't a
forestlegality.org, a blog he wrote last September actually
indicates it is not perfect, and he brings up the example of a
guitar that is made of, even if it is legitimate today, it is
forever. The way the law is written, every single time it
changes hands, as he says, that means 40, and I quote from him,
``that means 40, 50, or 100 years from now, if a guitar
reenters the U.S. borders the ``importer,'' whether an
individual or a business will have to attest to its materials,
genus, species, country of origin, which of course, is
impossible to do.''
Is that true? I mean, the way the law is written, is his
critique of the law, Mr. Gardner, true, that an instrument if
it is reimported 50 years from now, whatever individual
reimports it would be subject to the same Lacey requirement?
Mr. Gardner. I am not a lawyer, but----
Dr. Harris. OK, Mr. Rubinstein is that true? You are a
lawyer.
Mr. Gardner. But I want to continue with my statement, if I
may.
Dr. Harris. Well, I know, but if you can't answer because
you are not a lawyer, I will turn to the lawyer.
Mr. Gardner. Well, you asked me and you know I am not a
lawyer so let me answer how--I would like to answer, please, if
I may.
Dr. Harris. Go ahead and try.
Mr. Gardner. More concerning than anything to me is
whether, if at any point, the wood is sourced from something
that is bad for people, bad for the environment, bad for our
ethics, then yes, I am--I think it is just fine and well that--
I personally would not want to have a guitar in my possession.
Dr. Harris. OK now, you had to have listen to my question
carefully, because I said, the first time it was made it was
made legally. OK, so if you are going to answer the question,
you have--you can't----
Mr. Gardner. If it is found later to be what, illegal?
Dr. Harris. No, no, it is just imported later. It is not
illegal, I mean, it is imported, and according to Lacey, as
soon as it is imported, the new importer, whether an individual
or a company, has to certify in a test the genus, species,
country of origin under the current law. Now, that is the
hypothesis. Mr. Rubinstein, is that the current law under
Lacey?
Mr. Rubinstein. As I understand the question, yes.
Dr. Harris. OK, so Mr. Taylor, in fact, brings up a good
criticism of the law, I think. Because again, 50 years from
now, you know, a guitar, a person who wants to have a nice
guitar, eBay is international, in case you didn't notice. You
can get imports from all around the world. We create a
potential criminal.
And Mr. Rubinstein, I want to just ask this question
because it is something you said. You said that under the
CAFRA, they have to prove that they are innocent in order to
get their article back?
Mr. Rubinstein. Yes, as the Civil Asset Forfeiture Reform
Act was written it contained a provision that allows an
individual to assert an affirmative defense to a forfeiture, in
other words, to raise a defense saying that I am not--I should
not have my property taken by the government. The government
already has it, and then there is the legal proceeding.
Dr. Harris. Right. Well, you have to prove you are
innocent.
Mr. Rubinstein. Yes.
Dr. Harris. It is an interesting concept in America. You
have to prove you are innocent. Because again, 50 years from
now, that guitar is going to be imported. The person has really
no knowledge of what the genus and species is, so the
government confiscates it.
Ms. Harman. So what is the point?
Dr. Harris. Excuse me, you had your 5 minutes, I get mine.
The government confiscates it, and then the individual somehow
has to prove they are innocent to get their material back. I
think I understand it. I am still worried about that--about
that administrator in one of these agencies taking that Texas
EPA approach. Thank you very much, Mr. Chairman.
Dr. Fleming. Well, panel, we thank you for your time. You
are now dismissed, and we will ask our next panel to step
forward. Eileen Sobeck and Kevin Shea.
OK. We are now ready for panel three, includes today Ms.
Eileen Sobeck, Deputy Assist Director for Fish and Wildlife in
Parks, the Department of the Interior, and Mr. Kevin Shea,
Associate Administrator, Animal and Plant Health Inspection
Service, U.S. Department of Agriculture.
Briefly, repeating my earlier instructions, and your
written testimony will appear in full in the hearing record, so
I ask that you keep your oral statements to 5 minutes as
outlined in our invitation letter to you and under Committee
Rule 4(a). Our microphones are not automatic. Be sure you push
the talk button. Be sure that it lights up. We have had
problems with that today, and be sure that your mouth is close
enough to the microphone.
You will have 5 minutes to give your testimony, and operate
under 4 minutes under green, 1 minute under yellow. When it
turns red, we ask you to conclude as quickly as possible.
Ms. Sobeck, you are recognized now for 5 minutes to offer
testimony of the Department of the Interior on H.R. 3210 and
H.R. 4171.
STATEMENT OF EILEEN SOBECK (H.R. 3210 AND H.R. 4171), DEPUTY
ASSISTANT DIRECTOR FOR FISH AND WILDLIFE AND PARKS, U.S.
DEPARTMENT OF THE INTERIOR
Ms. Sobeck. Thank you very much, and good afternoon,
Chairman Fleming, and members of the Subcommittee. I am Eileen
Sobeck, Deputy Assistant Secretary for Fish and Wildlife and
Parks with the Department of the Interior, and I appreciate the
opportunity to testify today on the two bills that would
significantly weaken the Lacey Act, H.R. 3210, and H.R. 4171.
The Lacey Act prohibits trafficking and illegally taken
fish, wildlife and plants. Its premise is simple but effective.
People who take wildlife in violation of a State, tribal or
foreign law and then engage in interstate commerce with the
wildlife are violating U.S. Federal law. Congress has amended
the Lacey Act many times since it was first enacted in 1900.
The foreign law component was added in 1935. Penalties and
enforcement tools were strengthened in 1981. And then as we
know from today in 2008, stronger protections were added for
plants, notably timber. The 2008 plant amendments were
supported by a broad coalition of trade associations and
environmental organizations, and unions, and this unusual, I
must say, and robust commitment and support continues today as
I think we have heard.
Illegal wildlife trade is a big business. Our law
enforcement agents' efforts to stop wildlife smuggling can put
them against organized criminal networks conducting high-profit
black market trade valued in the billions. The 225 special
agents of the U.S. Fish and Wildlife Service work on over
13,000 investigations each year involving complex crimes that
target highly endangered species such as elephants, rhinos,
tigers and sea turtles, as well as domestic species managed by
States, such as deer and striped bass. The number of agents has
not changed since the early 1980s, but the illegal trade they
combat has grown in sophistication, and the global demand for
wildlife products has expanded.
In the face of this battle against global wildlife
trafficking, the Lacey Act is absolutely critical. It provides
a deterrent to wildlife trafficking through criminal penalties.
It gives law enforcement officers the tools to conduct
investigations, make arrests, and protect both themselves and
members of the public in dangerous situations. The
Administration has serious concerns with H.R. 4171 and we
oppose this bill in its entirety. H.R. 4171 is an extreme bill
that would eviscerate a century of congressional action that is
recognized around the world as a model for effective
conservation enforcement.
This bill would eliminate essential authorities in the
Lacey Act severely undercutting its effectiveness to enhance
conservation internationally and here in the United States. For
example, the bill would eliminate all criminal penalties from
the Lacey Act. The elimination of potential for jail time, no
matter the scope of the violation, or the intent, would rip the
enforcement guts out of this law. The deterrent effect of the
weak civil penalties that would remain, would be minimal, at
best. Wildlife and plant smugglers and traffickers around the
world would be celebrating if this bill were enacted.
The bill would also severely impair the capability, and
this is a very important point of our law enforcement officers,
under H.R. 4171, Federal wildlife law enforcement officers
would be unable to obtain search warrants to gather evidence;
they could not inspect vehicles and containers; and they would
not be able to make an arrest under the Lacey Act even with the
clearest evidence in hand. Of greatest concern, H.R. 4171
proposes to disarm Federal wildlife officers. This is dangerous
on many levels. These brave men and women regularly encountered
armed and dangerous criminals while enforcing Federal wildlife
laws, as Congressman Markey indicated. Disarming them creates
an unacceptable risk for the officers, their families, and the
public. This would, simply put, be unconscionable.
The negative impact of H.R. 4171 on the Lacey Act is
severe. If passed, poachers, smugglers and traffickers will
gain the upper hand and our partners will lose critical Federal
support. We have the strong support and concurrence of our
State law enforcement counterparts on this score.
The Administration also has significant concerns with a
number of provisions of H.R. 3210. For example, the bill would
weaken deterrence by capping civil penalties for first offenses
involving plants at only $250 even for offenses involving
commercial scale quantities of illegally harvested timber. This
provision would put U.S. businesses that follow the rules at a
competitive disadvantage and really flies in the face of
logical law enforcement.
While we understand the concerns raised by H.R. 3210, we
believe they are adequately addressed in how we implement the
law. Our enforcement focus is on commercial trafficking, not on
individual owners. There have just been six investigations
initiated by the Fish and Wildlife Service relating to the 2008
plant amendment. This is in stark contrast with nearly 4,000
wildlife investigations conducted under the Lacey Act during
that same period.
We have not sought or obtained forfeiture of any musical
instrument from an individual due to violation of the plant
amendments. We believe it is premature to revisit the 2008
amendments and respectfully suggest that Congress wait to
consider changes. Thank you for allowing me to testify today.
Dr. Fleming. Thank you, Ms. Sobeck.
[The prepared statement of Ms. Sobeck follows:]
Statement of Eileen Sobeck, Deputy Assistant Secretary for Fish and
Wildlife and Parks, U.S. Department of the Interior
Good afternoon Chairman Fleming and Members of the Subcommittee. I
am Eileen Sobeck, Deputy Assistant Secretary for Fish and Wildlife and
Parks, in the Department of the Interior. I appreciate the opportunity
to testify before you today on H.R. 3210 and H.R. 4171, bills that
would significantly amend the Lacey Act.
The Department of the Interior has serious concerns with each of
these bills. As detailed in my testimony, H.R. 3210 would weaken the
plant protection provisions of the Lacey Act. H.R. 4171 would remove
essential authorities in the Lacey Act, one of the most important and
effective conservation laws in the world and in doing so, undercut
legal trade in wildlife and plants. In addition, H.R. 4171 would disarm
wildlife law enforcement officers in the United States, putting these
brave men and women, who already put themselves in harm's way on behalf
of the American people, at serious risk.
The U.S. Fish and Wildlife Service (Service) is one of the lead
federal agencies for enforcing the Lacey Act, a long-standing law that
prohibits trafficking in illegally taken fish, wildlife, and plants.
The Service also enforces many other U.S. laws that protect wildlife,
including the Endangered Species Act, the Marine Mammal Protection Act,
and the Migratory Bird Treaty Act. The Lacey Act complements and
strengthens our ability to enforce these other statutes.
The Service's 225 special agents work on over 13,000 investigations
each year involving complex, high-impact wildlife crimes. The focus of
these wildlife crimes include highly endangered species such as
elephants, rhinos, tigers, and sea turtles; rain forests in the
tropics; wildlife habitat in the United States; and domestic species
like deer and bears that are poached in violation of state laws. Our
agents' efforts to stop wildlife smuggling pit them against organized
networks and criminals conducting high-profit, black market trade
valued in the billions. Our agents are responsible for covering the
nearly four million square miles of land that make up this country.
They are an extraordinary group focused on combating illegal taking and
trafficking of wildlife and wildlife products in the United States. In
fact, this group--in terms of numbers of officers--has remained
essentially the same since the early 1980s. In contrast, illegal trade
has grown in sophistication, the global economy for wildlife products
has expanded, and new law enforcement mandates have been enacted.
We have 139 wildlife inspectors stationed at 38 of the more than
400 Customs port of entry. Last year they processed approximately
180,000 declared shipments of wildlife and wildlife products worth more
than $2.8 billion. Wildlife inspectors are our front line defenders
utilizing the Lacey Act to help stop the import of injurious species
that could devastate our native ecosystems and industries if one of the
species were illegally imported or smuggled into the country.
The Service also employs 403 Federal Wildlife Officers who serve as
the uniformed police force and conservation officers for the 557
National Wildlife Refuges in the United States. These officers are
responsible for maintaining law and order, and protect the safety of
millions of visitors on approximately 150 million acres of land and
water throughout the United States and its territories. These officers
investigate and respond to many thousands of crimes committed on
refuges each year, including violent crimes and crimes involving
weapons and illegal drugs.
The Service's agents and officers depend on the Lacey Act to do
their work. The Lacey Act is the single most effective wildlife law
available in the United States. Its prohibitions protect animal and
plant resources from rapacious exploitation here and around the world.
Its penalties make prison sentences and significant fines a real
possibility for hard-core profiteers; reduce financial incentives for
wildlife and plant trafficking; and provide real deterrents for
wildlife crime. It also supports those businesses that commerce in
legitimate wildlife and plant trade here and abroad. Its authorities
show that our Nation's commitment to wildlife conservation goes beyond
words to encompass action, because it equips law enforcement officers
with the tools they need to conduct investigations and bring criminals
to justice.
The Administration strongly opposes H.R. 4171 because it would
undermine the Lacey Act and facilitate the illegal trafficking of
wildlife and plants. H.R. 4171 would tip the already unbalanced scales
firmly against law enforcement officers and agents striving to enforce
wildlife conservation laws on behalf of the American public.
With respect to H.R. 3210, the Administration appreciates the
concerns raised in the bill and believes that many of these concepts
are and can be addressed in the way that we implement the current law.
However, we are willing to work with the sponsors to discuss how best
to sharpen the approach to the concerns raised by H.R. 3210.
Historical Background
The Lacey Act was the Nation's first federal wildlife protection
law. Its passage in 1900 was prompted by growing concern about
interstate profiteering in illegally taken game species and the impact
of that trafficking on states and their wildlife resources.
The Lacey Act was drafted and shepherded through Congress by
Representative John Lacey, an Iowa Republican and early
conservationist. The law made it illegal to transport from one state or
territory to another wild animals or birds killed in violation of state
or territorial law. According to the House Committee Report from the
56th Congress, its ``most important purpose'' was ``to supplement the
state laws for the protection of game and birds.'' It also banned the
importation of injurious wildlife that threatened crop production and
horticulture in this country. In its original version, the Lacey Act
focused on helping states protect their resident wildlife. Defendants
charged under its interstate commerce provisions would first have
violated a state wildlife law and then taken that unlawfully acquired
wildlife across state lines and beyond the reach of its authorities.
Congress expanded the Lacey Act through amendments several times
during the law's first century. One of the most significant of these
amendments occurred in 1935, when Congress extended the Lacey Act's
prohibitions on interstate commerce to include wildlife and birds taken
in violation of federal or foreign law. An important example is the
1918 Migratory Bird Treaty Act.
Amendments enacted in 1981 expanded the scope of the statute to:
include certain unlawfully harvested fish; increase penalties for
trafficking; strengthen tools for enforcement; apply prohibitions on
interstate and international trafficking to any type of wild animal;
and extend protection to certain wild plants. The 1981 amendments also
added tribal laws and U.S. treaties to the list of underlying laws
upheld; incorporated strict liability forfeiture provisions consistent
with other resource laws; and established criminal felony liability for
those buying or selling protected specimens of fish or wildlife that
they knew had been taken and transported in violation of an underlying
law.
2008 Plant Amendments
The most recent amendments to the Lacey Act were passed by Congress
and signed into law on June 18, 2008, as part of the Food,
Conservation, and Energy Act of 2008 (Pub. L. 110-246). They expanded
the definition of plants covered by the Act, and similarly expanded and
clarified the predicate violations that could trigger the Lacey Act.
Under the 2008 amendments, it is unlawful to import, export, sell,
receive, acquire or purchase in interstate or foreign commerce any
plant that was taken in violation of a federal, state, tribal or
foreign conservation law. The statute specifies that the underlying
laws that trigger a plant trafficking violation include laws and
regulations that:
protect the plant;
regulate the (i) theft of plants, (ii) taking of
plants from a park, forest reserve, or other officially
protected area, (iii) taking of plants from an officially
designated area, or (iv) the taking of plants without, or
contrary to, required authorization;
require royalties, taxes or stumpage fees for the
taking, possession, transportation or sale of any plant; and
govern the export or transshipment of plants.
The amendments were supported by the Bush Administration as part of
its Presidential Initiative against Illegal Logging. The initiative
responded to widespread concerns about the economic impacts of illegal
logging. Both Republicans and Democrats supported the amendments as a
way to protect jobs from unfair and illegal logging practices.
The Lacey Act plant amendments were supported by more than 50 trade
associations, non-profits, and unions, representing the entire range of
stakeholders, as well as the Bush Administration, Executive Branch
agencies, and both parties in Congress. This broad support was driven
by the fact that: first, illegal logging practices have a negative
impact on U.S. businesses that operate by the rules; and second,
illegal logging has a negative impact on biodiversity, indigenous
peoples, and the global climate.
In particular, the law received strong support from the U.S. forest
products industry. The 2008 amendments help ensure that all businesses,
including foreign companies that send their goods into this country,
are operating on a level playing field.
The amendments equipped the United States with tools for addressing
illegal logging and timber trafficking. They provided a new definition
of the term ``plant'' making it clear that (with some limited
exceptions) the prohibitions apply to plant products as well as living
plants themselves. Specifically, ``plant'' was defined as ``any wild
member of a plant kingdom, including roots, seeds, parts, or products
thereof, and including trees from either natural or planted forest
stands.'' The inclusion of ``products'' parallels wildlife provisions
in the Lacey Act, which cover not only live fish and wildlife, but also
products made from them.
The amendments also added a declaration requirement for plant
products. This mandate is similar to the requirement for the
declaration of wildlife imports and exports established by the
Endangered Species Act, which also applies to all wildlife and wildlife
products, whether protected under a specific conservation law or not,
but covers a larger range of commercial and non-commercial shipments.
The U.S. Department of Agriculture's Animal and Plant Health
Inspection Service (APHIS), operating within available funding, has
implemented and enforced the amendments with respect to the importation
process itself. As in the past, the Service remains responsible for
conducting criminal investigations of Lacey Act violations, including
those authorized by the plant amendments. APHIS was assigned
significant new responsibilities with respect to monitoring trade in
plants and plant products under the Lacey Act--responsibilities that
include developing and implementing a declaration system and collecting
and maintaining plant import data.
Importance of the Lacey Act
Today the Lacey Act makes it unlawful to traffic in fish, wildlife,
or plants taken, possessed, transported, or sold in violation of
federal, state, foreign, or Native American tribal conservation law,
treaty, or regulation. It allows the United States to help states,
Tribes, and countries worldwide protect their natural resources by
discouraging a U.S. market and U.S. demand for illegally obtained
plants and wildlife. The law is a critical cornerstone for resource
protection and conservation law enforcement.
Under the Lacey Act, Service law enforcement agents expose illegal
guiding operations (i.e., guided hunting trips) profiteering in state,
tribal, and federally protected species and pursue cases involving the
illegal large-scale commercial exploitation of wildlife and plant
resources in violation of state, tribal, or federal law. The Lacey Act
provides a unique mechanism for states and Tribes to address crimes
within their borders by out-of-state or non-tribal guides and hunters
as well as the interstate sale or international export of unlawfully
acquired U.S. wildlife or plants. Such sales fuel the market for
certain species, putting domestic wildlife and plant populations
increasingly at risk. Illegal commercialization of wildlife is a real
and present threat to conservation.
On the international front, the Lacey Act provides an essential
tool for combating large-scale smuggling and the subsequent interstate
commerce in global species protected and regulated under federal laws,
international treaties such as CITES, and the conservation laws of
other countries. Its provisions give the Justice Department access to
powerful enforcement tools which help to bring charges against
international organized crime rings and criminals who knowingly and
deliberately traffic in the world's most imperiled species and in its
most important natural resources, such as fisheries and timber.
Trafficking in illegally harvested wood, for example, is estimated to
generate proceeds of approximately $10 billion to $15 billion annually
worldwide, according to a 2012 report by the World Bank \1\.
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\1\ Marilyn Pereira Goncales, et al. Justice for Forests: Improving
Criminal Justice Efforts to Combat Illegal Logging. Washington, D.C.:
World Bank, 2012.
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The existence and enforcement of the Lacey Act's foreign law
provisions have made the United States a leader and role model for
countries around the world--particularly those that, like the United
States, have long been major markets for wildlife and plant resources
illegally taken in developing countries that struggle to feed their
people, let alone protect their wildlife, plants, and forests. Through
these provisions, our Nation holds itself accountable for stopping
illegal trade in natural resources involving interests in our country,
and recognizes and supports the efforts of other countries to level the
playing field for legitimate businesses who manage their natural
resources responsibly.
H.R. 4171
H.R. 4171, the Freedom from Over-Criminalization and Unjust
Seizures Act, would eliminate essential authorities in the Lacey Act,
radically changing its nature and severely undercutting its
effectiveness to conservation internationally and here in the United
States. The statutory structure of Lacey Act evolved over the past
century. It reflects the deliberative work of many Congresses, federal
enforcement of the Lacey Act by the Service and the National Oceanic
and Atmospheric Administration and the experiences of federal, State,
Tribal, and foreign governments in implementing conservation laws and
programs that need to expand political borders. H.R. 4171 weakens Lacey
Act prohibitions, eliminates Lacey Act criminal penalties, and
significantly hampers the law enforcement capability of officers
authorized to enforce the Lacey Act.
For these reasons, the Administration strongly opposes H.R. 4171 in
its entirety. Specific comments on the provisions of H.R. 4171 follow.
H.R. 4171 Weakens Lacey Act Prohibitions
Section 2(a) of H.R. 4171 would eliminate all
violations predicated on foreign law. The Service opposes this
provision for the reasons described below.
The Service seeks to conserve fish, wildlife and plants for future
generations. We have long recognized that conservation is a global
issue. We cannot sacrifice coral reefs around the world and expect to
have healthy oceans. We cannot sacrifice migratory birds in the rest of
the Americas and expect to see them on their annual migrations through
the United States. Americans enjoy seeing gorillas and elephants while
on vacation or when they watch their favorite nature program. Many
Americans wish to ensure that their grandchildren are afforded the same
opportunities.
The Service supports international conservation projects around the
globe, such as the Multi-National Species Conservation Funds that help
countries conserve rhinos, tigers, elephants, and sea turtles. The
Lacey Act foreign law provisions help to ensure that individuals within
the jurisdiction of the United States do not undermine these global
conservation initiatives. The statute's foreign law provisions
recognize the reality that many countries with conservation laws lack
the resources or capacity to enforce them within their borders, leaving
their wildlife and plants especially vulnerable to outside
exploitation. They also recognize that the United States provides a
significant market for the trade in illegally taken wildlife, fish, and
plants. Since the 1930s, the United States has had a law on the books
that makes it illegal to knowingly import wildlife taken in violation
of a foreign law. This is both a pragmatic and an ethically sound
approach.
For the first time in more than eight decades, H.R. 4171 would do
away with all trafficking prohibitions predicated on foreign law,
destroying a global alliance for wildlife protection that has benefited
species worldwide. H.R. 4171 sends a message to other countries,
including long-standing strategic allies and more recent conservation
partners, that the United States is no longer a team player when it
comes to enforcing conservation laws throughout the world. Indeed, it
proclaims an indifference to the toll that international trafficking
has taken on species that range from African elephants and Madagascan
ploughshare tortoises to South American parrots and Pacific corals and
from neo-tropical mahogany to Southeast Asian orchids.
H.R. 4171 Eliminates Lacey Act Criminal Penalties, Permit Sanctions,
and Vehicle Forfeiture
Section 2(b) of H.R. 4171 eliminates all criminal
penalties--both misdemeanors and felonies. It would eliminate
the potential for jail time, no matter the scope of the
violation.
Section 2(b) of H.R. 4171 eliminates permit sanctions
for violations of Lacey Act.
Section 2(c) of H.R. 4171 eliminates the government's
authority for forfeiture of vehicles and other
instrumentalities used in the commission of an offense.
In addition to the harm that H.R. 4171 would do to U.S.
contributions to global conservation, it would also make sweeping
changes in the legal consequences for trafficking in state, tribal and
federally protected species in the United States and in the Service's
authority for enforcing its remaining prohibitions.
H.R. 4171 would eliminate criminal penalties for any Lacey Act
violation and removes provisions that authorize the Service to suspend
import/export licenses and deny permits to businesses that violate the
Lacey Act's anti-trafficking provisions. It also prevents the
forfeiture of vehicles and other instruments used in the trafficking.
It thus would remove vital deterrents to crime and the prospect of
serious punishment and only allow for imposition of more limited civil
penalties. In organized schemes involving high-value resources, civil
fines are not a sufficient deterrent and become merely an occasional
and potential ``cost of doing business'' for those who stand to profit
from conducting illegal activities. Wildlife cases can--and have--
involved products valued in the tens of millions of dollars.
Under current law, Service special agents face a substantial burden
of proof to secure criminal Lacey Act charges. Investigators must prove
that the potential defendant acted with full knowledge of the legal
status of the wildlife, plant, or product with respect to its removal
from the wild and those transactions that occurred before interstate
transport or importation. Criminal penalties only apply to those who
intentionally or recklessly violate the law. Individuals and companies
who unintentionally do so are currently subject only to civil liability
and a maximum penalty of $10,000.
Felony penalties do not apply (and would not be sought) against
violators unless both investigators and prosecutors believe that it can
be proved in court, beyond a reasonable doubt, that the violators knew
exactly what they were doing. The Lacey Act provides misdemeanor
penalties for persons who, in the exercise of due care, should have
known that the wildlife or plant in which they were dealing was
illegal.
If H.R. 4171's proposed changes had been in place over the past
decade, none of the convicted defendants in Lacey Act cases would have
served any prison time or would have had their vehicles subject to
forfeiture. No restitution would have been paid to states, tribes, or
other groups and no conservation efforts would have been funded with
these monies. Repeat or egregious violators would retain and remain
eligible for Service permits or licenses, including licenses to conduct
commercial trade in wildlife. Even those trafficking in wildlife and
plants that are on the brink of extinction would face only limited
liability under federal wildlife law. At most, they could be charged
with misdemeanor violations.
The reality is conservation law enforcement is already challenged
with competing for the attention of federal prosecutors and courts.
Without felony provisions, far fewer resource trafficking cases will be
brought. H.R. 4171 sends a message that conservation law enforcement is
not a priority. It should also be noted that the Lacey Act's felony
provisions often provide incentives for violators to plea to offenses
with lesser penalties, thereby reducing the burden on courts and
prosecutors.
H.R. 4171 Eliminates Law Enforcement Capabilities
Section 2(d) of H.R. 4171 eliminates the authorized
officers' authority to conduct searches for evidence.
Section 2(d) of H.R. 4171 eliminates a Magistrate's
authority to even issue a search warrant when probable cause of
a violation of the Lacey Act exists. In doing so, it strips the
Government of its fundamental ability to obtain vital evidence
to prove a violation of the law.
Section 2(d) of H.R. 4171 eliminates the authorized
officers' broad authority under the Lacey Act to detain and
inspect any vehicle, vessel, or other conveyance and any
package, crate or container and its contents being imported or
exported.
Section 2(d) of H.R. 4171 removes law enforcement
agents' ability to make an arrest under the Lacey Act even with
the clearest, most demonstrable evidence in hand.
Section 2(d) of H.R. 4171 bars judges from issuing an
arrest warrant for violations of the Lacey Act.
Section 2(d) of H.R. 4171 eliminates the explicit
statutory authority of authorized officers to carry firearms
under the Lacey Act.
The Lacey Act is not only a cornerstone for the Service's wildlife
law enforcement, it is a critically important law for our federal,
state and tribal partners. States and tribes regularly ask the Service
to open joint investigations into interstate wildlife trafficking
predicated on violations of State and Tribal law. But such
investigations would make little progress were H.R. 4171 to become law,
for special agents who cannot get a federal search warrant, conduct a
search, or carry a firearm to protect themselves essentially have no
tools for documenting criminal activity.
Removal of the explicit statutory authority for Service law
enforcement officers to carry firearms under the Lacey Act is of
particular concern. Service law enforcement officers regularly
encounter armed and dangerous criminals while enforcing federal
wildlife conservation laws. Placing law enforcement officers in the
position of being unable to defend themselves or others creates an
unacceptable risk.
H.R. 4171 would not only prevent Service law enforcement officers
from carrying firearms when enforcing the Lacey Act, it could also
remove in its entirety the authority for Service special agents and law
enforcement officers to carry a firearm during any enforcement
activity. Many of the wildlife protection laws passed after the Lacey
Act (including the Migratory Bird Treaty Act, Eagle Protection Act,
National Wildlife Refuge System Administration Act, and Endangered
Species Act) do not address this issue, likely because of the pre-
existing authority under the Lacey Act.
H.R. 4171 would weaken the Nation's access to the law enforcement
expertise and manpower that Service special agents and refuge officers
provide to U.S. Government efforts to protect Americans from terrorism
and help communities across the Nation respond to natural disasters and
other emergencies. It would also put these brave men and women in
danger.
These armed officers answered the call of a Nation in crisis in the
aftermath of 9/11, providing enhanced security at federal facilities
and Boston's Logan International Airport and serving as full-time
federal air marshals for extended periods. These officers provided
security at the Olympic Games in Salt Lake City and Atlanta and for
political events in Washington, D.C. They waded through flood waters in
the wake of Hurricane Katrina to rescue stranded residents and helped
secure the devastated city of New Orleans as it struggled to restore
order. They were on the scene just last year serving the people of the
Dakotas when rivers in those States flooded homes and farms,
threatening lives and livelihoods.
On National Wildlife Refuges, our law enforcement officers are
charged by law and regulations, ``...to protect fish and wildlife and
their habitat and prevent their disturbance, to protect Service lands,
property, facilities, or interests therein and to insure the safety of
the using public to the fullest degree possible.'' National Wildlife
Refuges have approximately 44 million visitations each year, including
2.5 million hunting and 7.2 million fishing visitations.
In 2011, the law enforcement officers of the National Wildlife
Refuge System handled 43,733 reported service calls. Of these calls,
35,200 involved violations of law, including 6 homicides, 5 rapes, 67
burglaries, the seizure of approximately 246,000 pounds of marijuana
and 62 kilos of cocaine. Refuge System law enforcement officers
apprehended 2,372 undocumented aliens who were either being smuggled as
human trafficking or were participating as traffickers themselves.
Refuge System law enforcement officers investigated or encountered
approximately 26,459 wildlife related crimes on Service lands in 2011.
Refuge System law enforcement officers work all corners of the
United States from the northern part of Alaska to the U.S./Mexico
border, in Puerto Rico, Guam and Midway Atoll, and in every state in
the continental United States. They routinely work alone, in very
remote areas, and in situations where support or aid is often hours
away.
Refuge System law enforcement officers have statutory authority to
arrest under several laws but the Lacey Act is the only law that grants
the statutory authority for officers to carry firearms in conducting
their duties. It is essential to protect the safety of the public and
the law enforcement officers and that this explicit statutory authority
is maintained.
H.R. 3210
H.R. 3210, the Retailers and Entertainers Lacey Implementation and
Enforcement Fairness Act, calls for a number of specific changes to the
2008 plant amendments to the Lacey Act. The Administration appreciates
the concerns raised in H.R. 3210. We believe that many of these
concepts are addressed in the way we implement the current law,
including an enforcement focus on commercial trafficking, not on
individual owners or retailers. In addition, APHIS, working with
agencies responsible for enforcing the Lacey Act, has taken and is
taking a number of steps to address some of the issues that have arisen
in implementation of the Act without undercutting the important
purposes of the Amendments. We believe that those processes have and
will adequately address the concerns and implementation issues.
However, we are willing to work with the sponsors to discuss how
best to sharpen the approach to the concerns raised by H.R. 3210.
The Administration does, however, have significant concerns with
H.R 3210, as written. For example, Section 3(c) would introduce the
concept of the ``innocent owner'' into the Lacey Act for the first
time, and would extend this exemption not just to individuals or
retailers, but also to forfeitures against companies engaged in the
importation of the illegal material. Such companies would have little
incentive to exercise due care (the culpability standard for a
misdemeanor Lacey Act violation) in buying imported wood or other plant
products since the government could only seize and forfeit such
contraband when investigators could prove that the Lacey Act violation
was knowingly committed. Limiting prosecutions to only those who
knowingly violate the law would provide an incentive for importers to
be ignorant or claim ignorance of the contents of his or her shipments
and undermine the Administration's efforts to combat the trafficking of
protected wildlife and the importation of injurious non-native species.
Current law provides the Service's Office of Law Enforcement and
the Department of Justice the flexibility to take into consideration
mitigating and aggravating circumstances when deciding whether to file
formal charges, issue a violation notice, or simply seize a shipment.
There is a significant amount of discretion applied on a case-by-case
basis. The U.S. Government has a long and positive track record of
pursuing fair prosecutions under the Lacey Act.
In addition, Section 4 of H.R. 3210 would also cap civil penalties
(and apparently criminal misdemeanor penalties) for first offenses
involving plants and plant products at only $250, even offenses
involving commercial scale quantities of illegally harvested raw wood
and timber. This change would signal to companies trading in illegal
wood or other plant resources that they could risk being caught on at
least one more contraband shipment as ``a cost of doing business''
unless investigators can prove that the Lacey Act violation was
deliberately committed. This provision of the bill would weaken
deterrents for illegal trafficking. It would also significantly
undercut U.S. businesses who follow the rules and exercise due care
putting them at a competitive disadvantage.
Conclusion
In considering H.R. 4171, we urge the committee to weigh carefully
the far-reaching negative impact and message passage of these laws will
have on efforts to stop illegal trafficking in wildlife and plants; on
U.S. conservation partnerships with states, tribes, and other
countries; on our collective stewardship fish, of wildlife and plant
resources; on businesses here and abroad engaged in the legitimate
harvest of, and trade in natural resources; and on the conservation of
species here and around the world. With regard to H.R. 3210, we are
concerned that the legislation may have unintended, deleterious
consequences on the important protections provided to plants under the
Lacey Act, but we are willing to work with the sponsors to address the
issues raised by the bill.
Mr. Chairman, thank you for the opportunity to testify on these
bills. I would be pleased to answer any questions that you and members
of the subcommittee may have.
______
Dr. Fleming. Next, Mr. Shea.
STATEMENT OF KEVIN SHEA (H.R. 3210 AND H.R. 4171), ASSOCIATE
ADMINISTRATOR, ANIMAL AND PLANT HEALTH INSPECTION SERVICE,
UNITED STATES DEPARTMENT OF AGRICULTURE
Mr. Shea. Thank you, Mr. Chairman. I appreciate the
opportunity to be here today. I am Kevin Shea, and I am the
Associate Administrator of USDA's Animal and Plant Health
Inspection Service. Our core mission is protecting animal and
plant health for agriculture. We also administer the Animal
Welfare Act and conduct wildlife damage activities. The 2008
amendments to the Lacey Act gave us a new role. We now
administer the Act's plant import declaration requirement,
while our partners in the Fish and Wildlife Service, and the
Department of Justice are responsible for enforcement of the
substantive provisions.
Prior to the 2008 amendments, the Lacey Act's plant
protection provisions were very limited in scope. The
amendments expanded the Act's coverage to include all plants
and plant products, and encompass foreign, conservation, or
export laws, as well as Federal and State laws. In addition to
the prohibition on illegally sourced plants, the amendments
also created a new declaration requirement for importers. With
very limited exceptions, anyone importing a plant, or plant
product must declare the scientific name of the plant product,
the value of the importation, the quantity of plant material
being imported, and the country of harvest.
APHIS has been responsible for developing the import
declaration form, issuing guidance to help importers comply
with the Act, and then actually collecting the completed forms,
either on paper or electronically. In implementing this new
requirement, we have tried to do so in a commonsense manner,
and have made it a priority to gather input from stakeholders
all along. We believe that most importers are trying to do the
right thing, so we want to have a process that is as simple as
possible for them, but that still allows to us carry out our
particular role in protecting the environment and natural
resources in accordance with the Act's goals.
I would like to quickly mention five things that we have
done to make the declaration requirement work better. First, we
have phased in the declaration requirement, rather than having
it apply to all possible products at once. We included less
complex products first, to make the compliance easier as
importers began to learn their obligations under the Act.
Second, we limited the requirement to formal Customs
entries; that is, commercial shipments and have not applied it
to personal shipments. Third, we have created special use
designations to make filling out the declaration form more
practical. For example, we have a designation of SPF, that
importers can use to indicate that their shipment is comprised
of spruce, pine, and fir lumber, a common trade name that
represents a small number of possible species.
Fourth, we have proposed a rule that would clarify the
statutory exemption for common food crops and common cultivars.
We have estimated that under full implementation this would
result in about a 1/3 reduction in the number of declarations
that would need to be filed.
And finally, we have worked directly with importers when we
have identified errors in submitted declaration forms to help
them better understand the requirement and what they need to do
to comply with the 2008 amendments.
Mr. Shea. We are also working to improve our ability to
analyze data so that we can better assist our Federal partners
in the Fish and Wildlife Service. We have upgraded our software
and analytical capabilities to allow us to more easily identify
errors or patterns of errors with the submitted declarations.
As we move forward, we will continue to listen closely to all
of our stakeholders, both in the regulated community and our
Federal partners. Their valuable input has helped us shape how
we have implemented the amendments, and we need everyone's
input to make this law work as effectively as we can. Thank
you, Mr. Chairman, again, for the opportunity. I would be happy
to answer questions.
Dr. Fleming. Thank you, Mr. Shea.
[The prepared statement of Mr. Shea follows:]
Statement of Kevin Shea, Associate Administrator, Animal and Plant
Health Inspection Service, U.S. Department of Agriculture
Dear Mr. Chairman and Members of the Subcommittee:
Thank you for the opportunity to testify at today's hearing on
legislation to amend the Lacey Act. I am Kevin Shea, and I am the
Associate Administrator of the USDA's Animal and Plant Health
Inspection Service (APHIS).
APHIS has a broad mission that includes protecting U.S.
agricultural animal and plant health, administering the Animal Welfare
Act, and carrying out wildlife damage management activities. These
efforts support the overall mission of USDA: to protect and promote
food, agriculture, and natural resources.
APHIS' ROLE IN THE LACEY ACT
The 2008 amendments to the Lacey Act, among other things, require
importers of plants and plant products to submit an import declaration
detailing key information about the plant contents of the items they
are importing. APHIS' responsibilities under the Lacey Act are to
develop the declaration form, promulgate regulations and guidance
related to the declaration, and to collect and review the completed
declarations. The U.S. Fish and Wildlife Service and, in some
instances, other enforcement agencies such as the U.S. Forest Service
and the Department of Homeland Security, Immigration and Customs
Enforcement, are responsible for investigating alleged violations and
initiating enforcement actions. The Department of Justice is
responsible for judicial enforcement of the Lacey Act.
The Lacey Act makes it unlawful to traffic in fish, wildlife, or
plants taken, possessed, transported, or sold in violation of federal,
state, foreign, or Native American tribal conservation law, treaty, or
regulation. It allows the United States to help states, tribes, and
countries worldwide protect their natural resources by discouraging a
U.S. market and U.S. demand for illegally obtained sources plants and
wildlife. The law is a critical cornerstone for resource protection and
conservation law enforcement.
APHIS has worked to implement the declaration requirement in a
common-sense manner that is consistent with the statutory requirements,
protective of the environment and natural resources, and manageable for
the regulated community.
Accordingly, the Agency has:
Worked with enforcement agencies to phase in
enforcement of the declaration requirement in a measured way,
gradually adding categories of products that require an import
declaration thereby giving industry time to oversee their
supply chains for compliance with the Act, and is consistent
with available funding.
Revised the declaration implementation schedule by
phasing in products largely based on their degree of processing
and complexity of their composition to make compliance easier
while importers come to understand their obligations.
Required import declarations only for formal
consumption entries (i.e. most commercial shipments) and not
for informal entries (i.e., personal shipments).
Created special use designations to make it easier
for importers to declare certain wood products, such as the
``SPF'' common trade name designation that indicates the
product is comprised of several types of spruce,pine, fir
lumber
Begun developing a rule to define ``common food crop
and common cultivar,'' which is anticipated to make clear that
this statutory exemption excludes large numbers of products
from the declaration requirement. Our preliminary economic
analysis estimates that these exemptions could save industry
and the government between $900,000 and $2.8 million per year
just for the five percent of products that is excluded.
Solicited feedback from the public, through an
Advanced Notice of Proposed Rulemaking, to determine the
feasibility of adopting de minimis exclusions from the
declaration requirement, which would remove even more shipments
from compliance with the declaration requirement.
We have taken great care to listen to our stakeholders, and we have
made many changes to the implementation schedule based upon their
feedback. For example, the Agency revised the phase-in schedule to
temporarily exclude products for which importers indicated it would be
difficult, if not technologically impossible, to provide full and
accurate information. In response to comments we received through a
Federal Register notice, we committed to providing at least six months
notice before implementing additional phases under the enforcement
schedule. APHIS has not introduced a new phase of the implementation
schedule since April 2010.
We have conducted regular outreach, meeting with stakeholders,
reaching out to individual importers, and answering questions from the
general public. Other examples of our outreach efforts include:
Maintaining a Lacey Act website with information and
guidance on how to comply with the Act.
Developing a Lacey Act primer to educate importers on
APHIS' role in implementation of the Act, making it publicly
available, and distributing it to industry.
Meeting with businesses and industry at numerous
events to discuss the Lacey Act, and what's necessary for
compliance.
Educating importers about the Act's requirements and
how to properly comply with the import declaration requirement
when we observe issues with submitted declarations.
APHIS Federal partners have conducted outreach to our
foreign trading partners, educating them about the 2008
Amendments. Efforts have included meetings with foreign
governments, as well as roundtables, seminars, and workshops
with private overseas businesses.
We are also considering how to proceed with input received in
response to the June 2011 Advanced Notice of Proposed Rulemaking that
requested public comments on ways to improve and streamline the
administration of the declaration requirement. In particular, the
Agency is looking at developing a de minimis exclusion from the
declaration requirement based upon the amount of plant material in a
product, which would further streamline the declaration process.
In summary, we will continue to implement the 2008 amendments
through a careful balancing of the requirements of the Act and the
legitimate concerns of the regulated community.
H.R. 3210, the Retailers and Entertainers Lacey Implementation and
Enforcement Fairness Act
H.R. 3210 contains a number of specific provisions that affect the
import declaration as well as the enforcement provisions of the Lacey
Act. With respect to the enforcement provisions, we agree with our
colleagues at the U.S. Fish and Wildlife Service, that these provisions
significantly weaken the Lacey Act's ability to protect animal and
plant resources from dangerous exploitation. We defer to their
testimony and expertise on this matter. There are, however, several
items APHIS would like to highlight that deserve attention.
The RELIEF Act would add a new section to the Lacey Act that makes
multiple changes to limit the applicability of the 2008 amendments.
Among these, it would specify that the Act does not apply to any plant
that was imported before May 22, 2008 (the date of enactment of the
2008 amendments) or to any finished plant or plant product that was
assembled and processed before that date.
APHIS created special-use designations that importers can use on
the declaration form to indicate that a product was made prior to the
2008 amendments, exempting them from having to fully declare all
required information.
However, goods manufactured and imported into the United States
after the date of enactment are subject to the substantive prohibitions
of the Act. We understand that some members of the artisanal musical
instrument industry may have stores of wood obtained before May 2008
for which they may no longer have records specifying the information
required on the Lacey Act declaration. Some of these industry members
have expressed concerns about their ability to comply with the
declaration requirement if any of their products are exported and then
reimported. However, the proposed exemption of all plants and plant
products of pre-amendment origin goes far beyond this declaration
issue. In any event, APHIS is only requiring the filing of a
declaration for products that enter into the country for formal
consumption; musicians or other individuals who travel with their
instruments need not file a Lacey Act declaration upon entry into the
United States.
The legislation would also provide that the declaration requirement
applies only in cases where the product is entered into the country for
formal consumption. This is consistent with how APHIS has implemented
the Act, and has had broad support from stakeholders. This ensures that
individuals carrying personal baggage and effects do not need to file
an import declaration.
The bill would require APHIS and other involved Federal Agencies to
fully fund implementation and administration of the import declaration
from existing funds. The Fiscal Year 2012 appropriation provided the
first-ever funding for this purpose: $775,000. The President's FY 2013
budget requests $1.5 million for Lacey Act activities and would allow
us to begin planning an initial implementation of a web-based procedure
to help eliminate the need for paper-based declarations. It is,
however, not clear that this level of funding would enable the Agency
to carry out all activities contemplated by these amendments.
In particular, the bill's requirement to create a standard
certification process for legal imports by individual manufacturers,
importers, and retailers could prove expensive and difficult to
implement and administer. The sheer number of individual products,
individual importers, and individual retailers would make any sort of
permitting or certification system massive in scope. Beyond just the
administration and processing of certifications, the provision would
require substantial resources to ensure accreditation and compliance.
It would be difficult to verify the legality of the hundreds of
thousands of plant products coming into the country each month. With
the size and scope of plants and plant products covered under the Act,
the Agency would not be able to adequately certify these types of
products within the FY 2013 Budget.
H.R. 4171, the Freedom from Over-Criminalization and Unjust Seizures
Act
This bill would make a number of changes to the Lacey Act's
longstanding enforcement provisions that raise concerns, including the
elimination of criminal penalties, removal of all references to foreign
laws, and other changes. Because it applies fully to fish and wildlife
as well as to plants, and relates to the enforcement of the Act, it is
not appropriate for APHIS to comment and we defer to our Fish and
Wildlife Service and National Oceanic and Atmospheric Administration
colleagues.
Mr. Chairman, thank you for the opportunity to testify today. We
look forward to working with you and your staff to provide technical
assistance as you continue to examine this important issue. I would be
happy to answer any questions that you or the members of the
Subcommittee may have.
______
Dr. Fleming. I now recognize myself for questions.
Ms. Sobeck, how many of the foreign laws were triggered by
the 2008 amendments?
Ms. Sobeck. I don't have that number. We don't know the
exact number of laws that are triggered.
Dr. Fleming. OK. Can you give me just a range? I mean, are
we talking one or two laws, are we talking a thousand, 10,000?
Give us some idea.
Ms. Sobeck. I think it would be fair to say that most
countries have at least one and probably more laws that relate
to--that would be--the amendments.
Dr. Fleming. You said ``both'' countries. What do you mean
by ``both'' countries?
Ms. Sobeck. Most countries.
Dr. Fleming. Oh, most countries, OK. I am sorry. So we know
Indonesia has over 500 laws alone, so if you multiply that
times the many countries that interact with the United States,
you could see where that could easily get into the thousands.
Is there any requirement for these countries or our country on
their behalf to reveal the laws to those who might be subject
to them?
Ms. Sobeck. I am sorry, I am not sure what you mean.
Dr. Fleming. If I may be affected by my behavior that may
trigger a law from another country, and I could be prosecuted
in this country, what is available through your agency or any
other that puts me on notice to this fact?
Ms. Sobeck. We--both the government, business, and----
Dr. Fleming. I am not a lawyer in Brazil, so I definitely
don't want to be subject to Brazilian law. So how do you help
me from that occurring?
Ms. Sobeck. Well, as some of the folks who testified in the
previous panel, including Ms. Harman I believe mentioned, the
industries themselves, NGO's, the government is trying to help
get industry and people who might be affected to be more
informed. People speak at conferences, there are educational
programs around.
Dr. Fleming. So it is just on the fly? There is no actual
formal attempt? I mean, for instance, the laws, as I
understand, that would comply in this situation are affecting
in some way, the Lacey Act in Brazil are all written in
Portuguese. Is there any, for instance, a clearinghouse where
one can go to a single Web site? Is there--have these laws all
been translated into English?
Ms. Sobeck. I don't believe--there is not a government-
sponsored clearinghouse or list, and there is not a government
translation of all of the foreign laws, and as far as I am
aware, there is not a comprehensive one-stop-spot provided
outside of the government for those laws.
Dr. Fleming. So you believe that American citizens should
be subject to laws of other countries even without any
reasonable notice or--for instance, we have, those in our
country, we bend over backwards when we read them their Miranda
rights, they are in our country where we speak English, and yet
we will ensure that they receive their Miranda rights in their
native language, and yet our own citizens are being subjected
to laws that originate from other countries under which they
can be prosecuted, and the government has taken no care to
ensure that those laws are disclosed to them?
Ms. Sobeck. Nobody will be subject to criminal prosecution
unless they knew or should have known in the exercise of due
care that a foreign law--that wildlife or plants were imported
or----
Dr. Fleming. If your property is confiscated and you go out
of business, I would think that is more than just a little slap
on the wrist, wouldn't you think?
Ms. Sobeck. Well, you were talking about Miranda rights in
the criminal context, and I wanted to make sure that you
understood that the----
Dr. Fleming. I was just giving that as an example. That
would apply to civil law as well. I mean, anyone who comes to
this country, if they can't speak our language, we ensure that
they get proper representation and in their native language,
but yet you are telling me that the American citizen in their
own country is subject to laws from another country, laws that
aren't even available to them in a language they can't speak.
Ms. Sobeck. Mr. Chairman, I am saying that for criminal
prosecution, an individual would have to, or a business would
have to have exercised due care or have actual knowledge of a
foreign law in order to be prosecuted, and also that, again,
our focus is on trafficking in commercial operations----
Dr. Fleming. What about noncriminal?
Ms. Sobeck.--and not on individual end users.
Dr. Fleming. That is, civil penalties, confiscation of
materials and things that may be very expensive could close a
business down, subject one to all sorts of secondary penalties,
maybe IRS penalties and so forth. You are saying, though, that
they are subject to the laws of other countries, languages that
they don't necessarily speak, and the government has done
nothing to ensure that they are disclosed on these laws
beforehand.
Ms. Sobeck. I wouldn't say that the government has done
nothing. As I said, we have tried to participate in voluntary
information exchange, provide training, speak----
Dr. Fleming. Very loose and very informally. You have
really not done anything with due care and due notice to ensure
that all those are made available. I think we have covered this
subject adequately. I know where we are on it.
Mr. Shea, APHIS, these are some numbers I understand that
come from you actually in your office, 40,000 documents a
month, that is where we are today; is that correct, sir?
Mr. Shea. That is correct.
Dr. Fleming. Where are we going with that? Will that grow?
Or what percent is that of the total?
Mr. Shea. Of the total amount that could be possible under
the Act, we see that number could go as high as 1 million per
month.
Dr. Fleming. OK. So--and what is the cost of the 40 million
documents, I am sorry, 40,000 documents, and what would be the
cost of a million documents for a month?
Mr. Shea. It is hard to get that really precisely accurate,
but when we did some analysis of this, it appeared that it was
costing somewhere between $38 and $117 per declaration,
depending on the pay rates of the people actually handling
these documents for the companies. So there is a range there.
And so at 40,000 per month, that is about $18- to $56 million
per year is what we have estimated, and you could extrapolate
that out to higher numbers. We would hope that there would be
economies of scale, better compliance as people understand how
to do the declaration over time.
Dr. Fleming. The $56 million would be for the 40,000; is
that right?
Mr. Shea. That is the high range for the 40,000 mark.
Dr. Fleming. That is the upper range?
Mr. Shea. Yeah.
Dr. Fleming. And so when you get to a million, then you
would have to multiply that, I am not sure, 40,000, that is
certainly a fraction of a million. So you are talking about
probably well into the millions of dollars per year to process
that?
Mr. Shea. Certainly absent any efficiencies of scale or
those sorts of things, the numbers would be fairly significant.
Dr. Fleming. And who would pay for that?
Mr. Shea. Most of the cost is what the importer bears now
to actually fill out the declaration, gather the information
for the declaration. Some of that is our cost internally in
USDA to collect and process the forms, but the bulk of those
costs really are on the importer.
Dr. Fleming. Right. So perhaps millions or hundreds of
millions of dollars of cost to the importer that would go to
the business cost, some perhaps to the government, but perhaps
most to the business. OK.
And are these documents currently being reviewed, analyzed?
Mr. Shea. We are reviewing them to the extent resources
allow. We only have a few people who work on this. We have only
received about $775,000 in appropriations to work on this, but
we are analyzing them to the extent we can. We now have better
software tools to do that, which allows us to do a better job
with it, but we are analyzing it to the extent we can.
Dr. Fleming. That is 40,000 documents a month. Have any led
to investigations?
Mr. Shea. We have provided just a few to Fish and Wildlife
Service or the Department of Justice, and none of them have led
to official investigations.
Dr. Fleming. OK. Would that be possibly that you just
haven't had the personnel to spend the time on the documents to
find everything you need to find?
Mr. Shea. I would think if we were looking at a higher
percentage, we would likely find more problems with the form,
but I want to emphasize that we think most of the problems with
the form so far are just the growing pains of understanding
this requirement, that some of the fields aren't filled out
properly or left blank, so most of the things we see like that,
we try to work directly with the importer to help them
understand for the next time, but certainly over time, we could
find things by further analysis. For example, a genus or
species is listed and the country harvested doesn't grow that
genus or species. So those are the kinds of things we would
really be looking hard for over time.
Dr. Fleming. OK. Well, I am the only one left on the dais,
and I think I have had the majority of my questions answered. I
do appreciate the witnesses today who have come before us. I
would like to thank all of our witnesses for their valuable
contributions and testimony. This has been a very productive
hearing, I believe. We have made every effort to ensure that it
was both comprehensive and balanced. Members of the
Subcommittee may have additional questions for our witnesses,
and we ask you to respond to these in writing. The hearing
record will be open for 10 days to receive these responses. We
have also had some submissions into the record, and without
objection so ordered.
I want to thank Members and staff for their contributions
to the hearing. If there is no further business, without
objection the Subcommittee now stands adjourned.
[Whereupon, at 3:54 p.m., the Subcommittee was adjourned.]
[Additional material submitted for the record follows:]
Statement submitted for the record by Gary J. Taylor, Legislative
Director, Association of Fish and Wildlife Agencies, on H.R. 4171, The
FOCUS Act
The Association of Fish and Wildlife Agencies (Association),
representing the collective perspectives of the 50 state fish and
wildlife agencies all of which are members of the Association, strongly
opposes H.R. 4171 and urgently points out that the proposed FOCUS Act
would alter the Lacey Act in a significantly negative context. Prior to
the 1900 Lacey Act, violations of conservation laws could not be
effectively investigated or prosecuted once the unlawfully taken game
or wildlife left the jurisdiction where it was illegally taken or
killed. The Lacey Act gives the United States Fish and Wildlife Service
(USFWS) Special Agents the ability to assist state, tribal, local and
other nations in the investigation of fish, game and wildlife crimes
that would otherwise go unpunished due to lack of resources, funding,
or more often, jurisdictional considerations. The Lacey Act is
recognized as one of the most effective federal wildlife laws ever
enacted and is based on predicate violations of state, tribal, federal
and international laws.
The FOCUS Act proposes to remove the potential of large penalties
for felony violations of the Lacey Act where subjects made large sums
of money through the unlawful commercialization of illegally taken game
or wildlife. The ability to levy large fines serves as a deterrent
against the same subjects accepting a lesser penalty as a ``cost of
doing business.'' State Wildlife Conservation Officers routinely assist
USFWS Special Agents in protecting fish, game and wildlife from this
type of exploitation so that these valuable natural resources are
available for the lawful consumptive and non-consumptive user alike.
The FOCUS Act would endanger this valuable protection of these species
that belong to all the citizens of the respective states.
Additionally, H.R. 4171 would remove the authority from USFWS and
NOAA Special Agents and Officers to carry firearms while in the
performance of their duties. The authority for these Agents and
Officers to carry firearms only exist in the Lacey Act. Once again, the
proposed amendments found in the FOCUS Act would endanger the state
officers if they are assisting a USFWS Special Agent in any type of
game or wildlife violation and encounter a deadly force situation.
While state officers would indeed have an issued firearm with them in
the performance of their duties, a USFWS Special Agent would not. This
may be a potentially deadly, problematic situation if only state
officers are armed. In fact, every state General Assembly in the United
States has authorized full-time state Wildlife Enforcement Officers to
carry firearms in the performance of their duties. USFWS Special Agents
vitally need this ability. In a study conducted by the FBI of assaults
on Conservation Law Enforcement Officers, it was revealed that Agents
and Officers enforcing environmental and natural resource laws were
nine times more likely to be assaulted with a dangerous weapon when
compared to traditional law enforcement officers. The proposals in the
FOCUS Act regarding this issue are unreasonable and potentially
decidedly dangerous for the Special Agent and state fish and wildlife
agency Wildlife Conservation Officers.
H.R. 4171 raises serious concern from an officer safety
perspective. The bill clearly removes the ability of agents to carry
firearms and make warrantless arrests. Not only are the states
concerned for the safety of the law enforcement agents from NOAA and
U.S. Fish and Wildlife, with whom the state officers work routinely,
but also the safety of the state officers who depend upon these agents
for assistance in conducting joint investigations, as well as serving
search and seizure and arrest warrants.
As proposed, H.R. 4171 removes all reference to foreign law as a
predicate 'violation in enforcing the Lacey Act. Many underdeveloped
nations around the world possess very rare and valuable plant, animal,
and mineral resources which are critical to their economies, and are
highly sought in the world market. In many cases these nations lack the
governmental resources and structure to protect these treasures and are
highly dependent upon more developed and wealthy nations, such as the
United States, to provide significant protection and deterrence toward
illegal commercialization.
H.R. 4171 would also provide for elimination of the strong criminal
penalties which currently exist in the Lacey Act and offer the most
significant deterrent available in combating the illegal wildlife and
plant trade. Civil penalties alone are merely a cost of doing business.
The probability of incarceration and the other societal implications
associated with a serious criminal penalty surely gives anyone intent
upon compromising the future of our natural resources pause to
reconsider.
Striking subsection (b) and the third sentence in subsection (c)
(re-designated as (b)), removes many of the investigative tools
necessary to conduct these investigations, such as the ability for
judges to issue warrants, and the authority of agents to serve arrest
warrants, search and seizure warrants, and subpoenas. Without these
capabilities, the states' enforcement of the Lacey Act will be highly
ineffective, if not impossible. Many of these criminal acts occur over
a long time period and the evidence to successfully prosecute these
complex cases is rarely immediately available. The execution of search
and seizure warrants and service of subpoenas to obtain all of the
needed evidence is nearly always essential to a productive outcome.
In summary, this proposed legislation is contrary to the original
intent of the Lacey Act and the amendments that have occurred since its
enactment, and the Association strongly opposes H.R. 4171. The Lacey
Act has been a foundational component to the success of the North
American model for wildlife conservation and has served to ensure that
the nation's natural resources are not exploited and jeopardized by
unlawful acts. It has served as a valuable tool to the individual
states of this nation in providing a means whereby violators may be
held accountable to the rule of law throughout this country.
Thank you for the opportunity to share the Association's
perspectives on H.R. 4171.
______
[A letter submitted for the record by Canadian
Manufacturers & Exporters and the Canadian Manufacturing
Coalition, on H.R. 3210 and H.R. 4171 follows:]
Canadian Manufacturers & Exporters
May 14, 2012
Mr. Harry Burroughs
House Committee on Natural Resources
Subcommittee on Fisheries, Wildlife, Oceans and Insular Affairs
U.S. House of Representatives
1324 Longworth House Office Building
Washington, D.C. 20515
Via electronic transmission to [email protected]
Testimony for the record following the subcommittee's hearing on H.R.
3210 and H.R. 4171 on May 8, 2012
Dear Mr. Burroughs:
On behalf of the member companies of Canadian Manufacturers &
Exporters (CME) and the Canadian Manufacturing Coalition (CMC), I am
pleased to have this opportunity to submit our comments in regard to
the 2008 Food, Conservation, and Energy Act amendments to the Lacey
Act. Our comments here will focus on the requirement that importers
submit a declaration at the time of importation for certain plants and
plant products.
Canada is the largest supplier of plant and plant products to the
United States. In fact, virtually all of the U.S. newsprint supply
originates from Canada as do forty percent of paper imports and two-
thirds of pulp imports. The United States marketplace is the largest
destination overall for Canadian exports, but thirty-seven States in
the Union point to Canada as their largest customer. Today, our two
countries have created the world's largest and safest business
relationship in the world. Through various cross-border forums, we have
embarked on a vibrant North American competitiveness agenda that has
the promise of creating good jobs for our future generations. Our
cross-border supply chain is unique in the world in terms of its
volume, immediacy and integrated nature of component parts. That
vibrant relationship has helped to create over seven million jobs in
small and large communities throughout the United States. No longer do
we ``trade'' together, we make things together. As evidence of this,
over one-third of shipments crossing our shared border each and every
day are comprised of intra-company and intra-industry parts and
components. Our jobs are your jobs and your best ideas are ours. It is
a unique and highly beneficial relationship.
Our companies share the objective of seeking to combat illegal
logging. Canada has adopted advanced sustainable forest management
practices that go far beyond the goal of eliminating illegal logging.
Moreover, Canada has long prohibited the importation into Canada of any
plant, or any part or derivative thereof, which was taken in
contravention of any law of a foreign state, through provisions of the
Wild Animal and Plant Protection and Regulation of International and
Interprovincial Trade Act and its regulations. In addition, almost a
third of all companies globally enrolled as supply chain security
partners with the U.S. Customs and Border Protection (CBP) are Canadian
companies. Almost all of our cross-border truck drivers are vetted by
CBP and their Canadian counterpart. We bring this to your attention in
an effort to underscore that U.S. border requirements affect both
Canadian and U.S. businesses and the workers they employ.
Our member companies have joined with their American business
partners in expressing concern about the implementation of the Lacey
import declaration requirement. Their immediate worry is that the
product coverage mandated by the underlying statute will grow to
include almost all of the tariff items and given that there currently
is no de minimus threshold, products from logs to cosmetics and
dashboards of new automobiles will soon be subject to the requirement.
The imposition of what we feel is an unnecessary and burdensome
import declaration adds considerable costs to the bottom line of our
U.S. business partners. The compliance to file the declaration alone
requires 1.5 man hours per declaration, a nine-fold increase over non-
Lacey shipments. In 2011, according to officials of the U.S. Department
of Agriculture, Animal Plant Health Inspection Service, the vast
majority of regulated shipments were imports from Canada. In fact,
every week, APHIS receives approximately 6,000 such import
declarations--5,000 electronically and 1,000 using the paper form.
For these reasons, we would strongly urge the Administration to
consider an alternate path forward. U.S. Customs and Border Protection
acts as the primary agency at the U.S. border and for the past several
years has launched an ambitious re-modernization of their import data
collection on behalf of many federal agencies. It is our view that CBP
is best equipped with the electronic resources to collect the necessary
data requirements to provide the U.S. Department of Agriculture, Animal
Plant Health Inspection Service, with the important enforcement tools
to meet the objectives of the Lacey Act.
Imposing an additional transmission of the same data adds costs for
both government and business. Our companies on both sides of the border
must compete in a highly competitive global marketplace, but the import
declaration in its current form erodes the bottom line for our best
corporate citizens. Illegal logging is a shared concern for both Ottawa
and Washington. A shared and modern risk management approach is,
simply, good public policy.
Sincerely,
Jayson Myers
President & CEO
Canadian Manufacturers & Exporters
______
[A letter submitted for the record by the National
Association of Conservation Law Enforcement Chiefs follows:]
SUBJECT: H.R. 4171--Freedom from Over-Criminalization and Unjust
Seizures Act of 2012, or the FOCUS Act Amendments to the Lacey Act.
Robert J. Wittman
1317 Longworth House Office Building
Washington, DC 20515
Dear Robert J. Wittman:
I am sending this letter on behalf of the National Association of
Conservation Law Enforcement Chiefs (NACLEC). NACLEC represents the
executive law enforcement leadership of state natural resource agencies
from across the country who are charged with enforcing natural resource
protection and public safety laws.
For the reasons outlined below, NACLEC is deeply concerned about
H.R. 4171--Freedom from Over-Criminalization and Unjust Seizures Act
of2012 (FOCUS Act). The Lacey Act has been effectively applied in every
state in protecting our fish and wildlife across the country. If
passed, the FOCUS Act will have serious adverse impacts on our ability
to protect the natural resources in each of our individual states. It
also has significant officer and public safety implications through its
proposal to disarm United States Fish & Wildlife Service (USFWS)
Special Agents.
The Lacey Act Amendments of 1981, by President Reagan on November
16, 1981, combined the original Lacey and Black Bass Acts into a single
comprehensive statute to provide more effective enforcement of state,
Federal, tribal and foreign conservation laws protecting fish,
wildlife, and rare plants. Like the original acts, the 1981 Amendments
were designed to outlaw the interstate traffic of animals killed in
their state of origin and to allow for appropriate penalties for those
involved in their illegal commercialization. The 1981 Amendments
recognized that misdemeanor penalties were insufficient to either
provide a deterrent effect or to rate as a priority with federal
prosecutors.
The legislative history of the 1981 Amendments includes the
following excerpt from the ``General Statement of the House''
``A massive illegal trade in fish and wildlife and their parts
and products has been uncovered through ongoing investigations
by the Department of Justice, the Fish and Wildlife Service,
the Customs Service and the Departments of Agriculture and
Commerce. The serious consequences of such trade may include
the introduction of exotic diseases that threaten the
agriculture and pet industries, the creation of new markets for
the thousands of species taken in violation of state, Federal
or foreign laws and the ultimate threat to the survival of the
species itself. The purpose of H.R. 1638 is to provide more
effective enforcement tools to the wildlife agencies of the
state and the Federal Government to control this trade.''
NACLEC believes that these concerns not only remain today, but are
heightened by the increased threats that exotic species present to our
native wildlife and challenges all agencies have creating a climate of
compliance with fewer resources. The Lacey Act remains an important
tool for preventing the illegal importation of exotic species and
creating a climate of compliance with laws designed to protect our
fish, wildlife and rare plants.
The global trade in wildlife is a multibillion dollar business
annually that has illegal elements which in some cases are driving
species to dangerously low populations. Those involved in the illegal
trade are often a well organized and create black markets and smuggling
syndicates to move and trade the world's rarest plants and animals. It
is important we do not lose the potential for criminal prosecutions for
fish and wildlife violations that transcend state boundaries. It is an
important tool and creates a significant deterrence effect. The
proposed downgrading of the Lacey Act to a mere civil enforcement tool
presents many concerns. Decriminalization of the Lacey Act will make
multi-state investigations difficult if not impossible. At present,
violators who cross state lines with illegal fish and game are in
violation of the Lacey Act and thereby subject to a Federal search
warrant so that evidence may be gathered and a prosecution commenced in
Federal courts. If the Lacey Act is decriminalized, violators will not
be subject to federal search warrants and may very well be in a ``safe
harbor'' simply by crossing state lines. Our experience is that those
involved in the illegal commercialization of fish, wildlife and plants
can be sophisticated, well financed and often engaged in other illegal
activities. When these ventures cross state lines, as they almost
always do, the resources of the USFWS and the enforcement powers
allowed under the current Lacey Act are essential to a successful
prosecution. The proposed changes will likely take the USFWS out of the
picture and make effective enforcement of interstate violations
virtually impossible. The USFWS is an extremely important partner in
our conservation law enforcement community, and our collaboration on
investigations that transcend state boundaries is a key element in
successfully accomplishing our mission.
It is our understanding that the impetus for the proposed changes
is a perceived difficulty in knowing when a species is imported into
the Unites States in violation of a foreign law. We respectfully
requests that you not disrupt an essential enforcement mechanism for
domestic fish and game violations based on that concern. There are
other alternatives, such as enhanced educational efforts, that can be
employed to solve that problem, if it is in fact a problem. This act is
proposed as a solution to a problem. However, solving one narrowly
focused problem with a sweeping solution that creates bigger problems
is not the type of solution the taxpayers expect from government.
Finally, we are concerned with the provision that would remove the
specific statutory authorization for USFWS officers to carry firearms.
This is very concerning to us. Every state legislature in the country
has armed their wildlife enforcement officers, and for good reason. In
a study conducted by the FBI of assaults on conservation law
enforcement officers, it was revealed that agents and officers
enforcing environmental and natural resource laws were nine times more
likely to be assaulted with a dangerous weapon when compared to
traditional law enforcement officers. If the reason for this change is
to limit the ability of USFWS officers to carry firearms, the results
would endanger not only the officers of the Service, but also the state
officers who work with these officers in dangerous situations, as well
as the public we serve. USFWS officers are subject to the same threats
as any other law enforcement officer and serve a similar public
protection role. Disarming these officers removes their ability to
defend themselves, fellow officers, and the public. One only needs to
pick up a newspaper or turn on the television to see that on a daily
basis we live in a world where the entire law enforcement community
needs to be ready to respond acts of terrorism and other threats to
public safety on a moment's notice. We believe disarming USFWS agents
would significantly undermine public safety, officer safety, and
Homeland Security.
Thank you for considering our views on this issue. It is very
important to the protection of our fish, wildlife and plants in our
individual states, and ultimately nationwide.
Sincerely,
Randy J. Stark--President--Wisconsin
National Association of Conservation Law Enforcement Chiefs
Alabama--Alan Andress
Alaska--Steve Bear
Arizona--Gene Elms
Arkansas--Jeff Crow
California--Nancy Foley
Colorado--Bob Thompson
Connecticut--Kyle Overturf
Delaware--Robert Legates
Florida--Jim Brown
Georgia--Eddie Henderson
Hawaii--Mark Young
Idaho--Jon Heggen
Illinois--Rafael Gutierrez
Indiana--Scotty Wilson
Iowa--Robert. Garrison
Kansas--Kevin Jones
Louisiana--Winton Vidrine
Maine--Joe Fessenden
Maine--Joel Wilkinson
Maryland--George Johnson IV
Massachusetts--Aaron Gross
Michigan--Gary Hagler
Minnesota--Jim Kourad
Missouri--Larry Yamnitz
Mississippi--Steve Adcock
Montana--Jim Kropp
Nebraska--Craig Stover
Nevada--Robert Buonamici
New Hampshire--Martin Garabedian
New Jersey--Mark Chicketano
New Mexico--Chris Chadwick
New York--Peter Fannelli
North Carolina--Dale Caveny
North Dakota--Brobert Timian
Ohio--Gary Obermiller
Oklahoma--Robert Fleener
Oregon--Jeff Samuels
Pennsylvania--Richard Palmer
Pennsylvania--Jeffrey Bridi
Rhode Island--Frank Floor
South Carolina--Alvin Taylor
South Dakota--Andy Alban
Tennessee--Darren Rider
Texas--Pete Flores
Utah--Mike Fowlks
Vermont--Dave LeCours
Virginia--Dabney Watts
Washington--Bruce Bjork
West Virginia--Jerry Jenkins
Wyoming--Scott Edberg
______
Statement submitted for the record by Captain Mike Fields, President,
National Association of State Boating Law Administrators, on H.R. 4171,
The FOCUS Act
On behalf of the National Association of State Boating Law
Administrators (NASBLA) I am writing to express my extreme concern
regarding H.R. 4171--The 2012 FOCUS Act Amendments to the Lacey Act.
The National Association of State Boating Law Administrators is a
national nonprofit organization that works to develop public policy for
recreational boating safety. NASBLA represents the recreational boating
authorities of all 50 states and the U.S. territories. NASBLA's mission
is to strengthen the ability of the state and territorial boating
authorities to reduce death, injury and property damage associated with
recreational boating and ensure a safe, secure and enjoyable boating
environment.
As representatives of the state's on-water law enforcement we have
certain concerns regarding the ability of our member states to protect
the natural resources as well as the citizenry in their respective
jurisdictions.
In specific regards to the global wildlife trade, the Lacey Act
remains a vital resource in preventing the illegal importation of
exotic species and creating a climate of compliance with laws designed
to protect our fish, wildlife and rare plants.
Of even more concern to our members however is the proposed
provision that would remove the specific statutory authorization USFWS
and NOAA Special Agents and Officers to carry firearms. While the
states have all reaffirmed the importance of allowing state law
enforcement officers to carry firearms due to the extreme risk of their
operating environment, USFWS and NOAA agents are dependent on the
language in the Lacey Act for this same protection. State law
enforcement officers routinely work with their Federal partners and it
is imperative that they all work in coordination and cooperation.
Recent studies have shown that environmental and natural resource
officers are nine times more likely to be assaulted with a dangerous
weapon when compared to traditional law enforcement officers. The
safety risks are great and disarming these officers removes their
ability to defend themselves, fellow officers, and the public.
NASBLA and our members work in close cooperation with many federal
partners and it is the nexus of local, state and federal law
enforcement coordination that has greatly improved law enforcement and
homeland security efforts in recent years. This legislation would
greatly damage that ability to ensure safety of our officers and the
general public.
We are generally very supportive of the work of the Committee,
particularly when it has related to recreational boating safety,
conservation management and the protection of our homeland. These
provisions in H.R. 4171 pose a threat to these initiatives and we hope
you will consider the dangerous ramifications should they go unamended.
Thank you for your consideration of our position on H.R. 4171.
______
[A letter submitted for the record by the Northeast
Conservation Law Enforcement Chiefs Association follows:]
Northeast Conservation Law Enforcement Chiefs Association
May 7, 2012
Dear Representative Fleming:
On behalf of the Northeast Conservation Law Enforcement Chiefs
Association, NECLECA, who is represented by the State of Maine, New
Hampshire, Vermont, Massachusetts, Rhode Island, Connecticut, New York,
Pennsylvania, Maryland, Virginia, Delaware and New Jersey and the
Canadian Provinces of New Brunswick, Nova Scotia, Prince Edward Island
and Environment Canada, we are writing to express our strong opposition
to H.R. 4171, to amend the Lacey Act Amendments of 1981.
This bill as proposed would seriously and negatively impact our
respective states in our ability to protect our valued natural
resources. In addition, it has significant officer and public safety
concerns with the proposal to disarm United States Fish and Wildlife
Service (USFWS) Special Agents.
As you know, the Lacey Act is recognized as the most effective
enforcement statute to succesl3fully assist states with the protection
of our fish, wildlife and rare plants. Routinely natural resources
illegally taken in our states cross state lines and international
boundaries. The Lacey Act is the best mechanism used to assist us in
investigating these crimes and successfully prosecuting the offenders.
Without the Lacey Act, we could not pursue violators across state lines
due to our lack of resources, funding and jurisdictional limitations.
In the past, Lacey Act enforcement actions have been applied in
each of our states as well as every state in the country. An example of
how the Lacey Act was used to successfully protect our wildlife species
is a recent investigation and prosecution in the State of Pennsylvania.
Five individuals from outside the State of Pennsylvania were
charged with more than 250 counts of violating their laws as a result
of killing deer at night, killing deer in closed season and killing
deer in excess of season bag limits. Also, the USFWS recently arrested
seven individuals of an organized crime ring trafficking in rhinoceros
horns. Without this type of effort the continued epidemic of poaching
these animals will drive them to the brink of extinction in the wild.
In addition, the Lacey Act also contains statutes that protect our
native species and fauna with restrictions on invasive plants and
wildlife. The potential public health concerns and economic costs
associated with diseases and invasive species within our states should
be of great concern to all of us.
The proposed H.R. 4171 removes the statutory authority of United
States Fish and Wildlife Officers to carry firearms. These officers
face the same threats as any other law enforcement officer throughout
the country. Allowing them to be disarmed in today's society is a
threat not only to their safety but also to the safety of our officers
who often assist them and the very public we all serve.
Today our wildlife species continue to be exploited more than ever
because o the financial gains by' unscrupulous individuals. There is a
prevalent illegal interstate and international trade in fish and
wildlife species and their parts and products. It is imperative the
Lacey Act provisions continue to exist as written to protect our
natural resources for generations to come.
We respectfully request' you oppose this legislation as it would
not only be detrimental to our natural resources, but is also a public
safety issue involving our federal agents. Additionally, it will put
dedicated law enforcement professionals on the state and federal level,
as well as the public they serve, at risk as they serve daily. If we
may be of any further assistance please contact us at your convenience.
Sincerely,
Colonel Martin S. Garabedian
President
Northeast Conservation Law Enforcement Chief's Association (NECLECA)