[House Report 110-882]
[From the U.S. Government Publishing Office]
110th Congress Report
HOUSE OF REPRESENTATIVES
2d Session 110-882
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LEGAL TIMBER PROTECTION ACT
_______
September 24, 2008.--Committed to the Committee of the Whole House on
the State of the Union and ordered to be printed
_______
Mr. Rahall, from the Committee on Natural Resources, submitted the
following
R E P O R T
together with
ADDITIONAL VIEWS
[To accompany H.R. 1497]
[Including cost estimate of the Congressional Budget Office]
The Committee on Natural Resources, to whom was referred the
bill (H.R. 1497) to amend the Lacey Act Amendments of 1981 to
extend its protections to plants illegally harvested outside of
the United States, and for other purposes, having considered
the same, report favorably thereon with an amendment and
recommend that the bill as amended do pass.
The amendment is as follows:
Strike all after the enacting clause and insert the
following:
SECTION 1. SHORT TITLE.
This Act may be cited as the ``Legal Timber Protection Act''.
SEC. 2. PREVENTION OF ILLEGAL LOGGING PRACTICES.
(a) In General.--The Lacey Act Amendments of 1981 are amended--
(1) in section 2 (16 U.S.C. 3371)--
(A) by striking subsection (f) and inserting the
following:
``(f) Plant.--
``(1) In general.--The term `plant' means any wild member of
the plant kingdom, including roots, seeds, parts, and products
thereof.
``(2) Exclusions.--The term `plant' excludes any common food
crop or cultivar that is a species not listed--
``(A) in the Convention on International Trade in
Endangered Species of Wild Fauna and Flora (27 UST
1087; TIAS 8249); or
``(B) as an endangered or threatened species under
the Endangered Species Act of 1973 (16 U.S.C. 1531 et
seq.).'';
(B) in subsection (h), by inserting ``also'' after
``plants the term''; and
(C) by striking subsection (j) and inserting the
following:
``(j) Take.--The term `take' means--
``(1) to capture, kill, or collect; and
``(2) with respect to a plant, also to harvest, cut, log, or
remove.'';
(2) in section 3 (16 U.S.C. 3372)--
(A) in subsection (a)--
(i) in paragraph (2), by striking
subparagraph (B) and inserting the following:
``(B) any plant--
``(i) taken, transported, possessed, or sold
in violation of any law or regulation of any
State, or any foreign law, that protects plants
or that regulates--
``(I) the theft of plants;
``(II) the taking of plants from a
park, forest reserve, or other
officially protected area;
``(III) the taking of plants from an
officially designated area; or
``(IV) the taking of plants without,
or contrary to, required authorization;
``(ii) taken, transported, or exported
without the payment of appropriate royalties,
taxes, or stumpage fees required for such plant
by any law or regulation of any State or by any
foreign law; or
``(iii) exported or transshipped in violation
of any limitation under any law or regulation
of any State or under any foreign law; or'';
and
(ii) in paragraph (3), by striking
subparagraph (B) and inserting the following:
``(B) to possess any plant--
``(i) taken, transported, possessed, or sold
in violation of any law or regulation of any
State, or any foreign law, that protects plants
or that regulates--
``(I) the theft of plants;
``(II) the taking of plants from a
park, forest reserve, or other
officially protected area;
``(III) the taking of plants from an
officially designated area; or
``(IV) the taking of plants without,
or contrary to, required authorization;
``(ii) taken, transported, or exported
without the payment of appropriate royalties,
taxes, or stumpage fees required for such plant
by any law or regulation of any State or by any
foreign law; or
``(iii) exported or transshipped in violation
of any limitation under any law or regulation
of any State or under any foreign law; or'';
and
(B) by adding at the end the following:
``(f) Plant Declarations.--
``(1) In general.--Effective 180 days from the date of
enactment of this subsection and except as provided in
paragraph (3), it shall be unlawful for any person to import
any plant unless the person files upon importation where
clearance is requested a declaration that contains--
``(A) the scientific name of any plant (including the
genus and species of the plant) contained in the
importation;
``(B) a description of--
``(i) the value of the importation; and
``(ii) the quantity, including the unit of
measure, of the plant; and
``(C) the name of the country from which the plant
was taken.
``(2) Declaration relating to plant products.--Until the date
on which the Secretary promulgates a regulation under paragraph
(6), a declaration relating to a plant product shall--
``(A) in the case in which the species of plant used
to produce the plant product that is the subject of the
importation varies, and the species used to produce the
plant product is unknown, contain the name of each
species of plant that may have been used to produce the
plant product; and
``(B) in the case in which the species of plant used
to produce the plant product that is the subject of the
importation is commonly taken from more than 1 country,
and the country from which the plant was taken and used
to produce the plant product is unknown, contain the
name of each country from which the plant may have been
taken.
``(3) Exclusions.--Paragraphs (1) and (2) shall not apply to
plants used exclusively as packaging material to support,
protect, or carry another item, unless the packaging material
itself is the item being imported.
``(4) Review.--Not later than 2 years after the date of
enactment of this subsection, the Secretary shall review the
implementation of each requirement described in paragraphs (1)
and (2) and the effect of the exclusions in paragraph (3).
``(5) Report.--
``(A) In general.--Not later than 180 days after the
date on which the Secretary completes the review under
paragraph (4), the Secretary shall submit to the
appropriate committees of Congress a report
containing--
``(i) an evaluation of--
``(I) the effectiveness of each type
of information required under
paragraphs (1) and (2) in assisting
enforcement of section 3; and
``(II) the potential to harmonize
each requirement described in
paragraphs (1) and (2) with other
applicable import regulations in
existence as of the date of the report;
``(ii) recommendations for such legislation
as the Secretary determines to be appropriate
to assist in the identification of plants that
are imported into the United States in
violation of section 3; and
``(iii) an analysis of the effect of the
provisions of subsection (a) and (f) on--
``(I) the cost of legal plant
imports; and
``(II) the extent and methodology of
illegal logging practices and
trafficking.
``(B) Public participation.--In conducting the review
under paragraph (3), the Secretary shall provide public
notice and an opportunity for comment.
``(6) Promulgation of regulations.--Not later than 180 days
after the date on which the Secretary completes the review
under paragraph (4), the Secretary may promulgate regulations--
``(A) to limit the applicability of any requirement
described in paragraph (2) to specific plant products;
``(B) to make any other necessary modification to any
requirement described in paragraph (2), as determined
by the Secretary based on the review under paragraph
(4); and
``(C) to limit the scope of exclusion in paragraph
(3) if warranted as a result of the review under
paragraph (4).'';
(3) in section 7(a)(1) (16 U.S.C. 3376(a)(1)), by striking
``section 4'' and inserting ``section 3(f), section 4,'';
(4) in section 4 (16 U.S.C. 3373)--
(A) by striking ``subsections (b) and (d)'' each
place it appears and inserting ``subsections (b), (d),
and (f)'';
(B) by inserting ``or section 3(f)'' after ``section
3(d)'' each place it appears; and
(C) in subsection (a)(2), by inserting ``or who
violates subsection 3(f) other than as provided in
paragraph (1)'' after ``subsection 3(b)''; and
(5) by adding at the end of section 5 (16 U.S.C. 3374) the
following:
``(d) Civil Forfeitures.--Civil forfeitures under this section shall
be governed by the provisions of chapter 46 of title 18, United States
Code.''.
(b) Technical Correction.--
(1) Correction.--Section 102(c) of Public Law 100-653 is
amended--
(A) by inserting ``of the Lacey Act Amendments of
1981'' after ``Section 4''; and
(B) by striking ``(other than section 3(b))'' and
inserting ``(other than subsection 3(b))''.
(2) Effective date.--Paragraph (1) shall be effective
immediately upon the effectiveness of section 102(c) of Public
Law 100-653.
Purpose of the Bill
The purpose of H.R. 1497 is to amend the Lacey Act
Amendments of 1981 to extend its protections to plants
illegally harvested outside of the United States, and for other
purposes.
Background and Need for Legislation
According to the World Bank, widespread failure of forest
governance--characterized by illegal logging, associated
illegal trade, and corruption--directly undermines any nation's
attempt to achieve sustainable economic growth, societal
equity, and environmental conservation. Within developing
countries, one billion extremely poor people depend on forests
for part of their livelihoods and as many as 350 million people
living in and around forests are heavily dependent on forests
for their livelihoods and security. These vulnerable
populations are at risk from the illegal logging that removes
timber from their forests.\1\
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\1\World Bank, Strengthening Forest Law Enforcement and Governance:
Addressing a Systemic Constraint to Sustainable Development. Report No.
36638-GLB, 2006.
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Illegal logging also undermines responsible forest
enterprises in these countries by distorting timber markets
with unfair competition and price undercutting. It also
threatens the conservation of forest resources, wildlife, and
biodiversity as forests are converted to grasslands, plant
species are depleted, and animal species dependent on forest
habitat are either killed during the logging efforts or decline
once the habitat is destroyed. Finally, illegal logging results
in a loss of revenue from taxes and royalties that could be
invested in sustainable forest management or economic
development. In fact, the World Bank estimates the (global)
annual market value of losses from illegal cutting of forests
at over $10 billion U.S.--more than eight times the total
official developmental assistance that is spent on sustainable
forest management efforts.\2\ In short, the impacts are
staggering.
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\2\World Bank Report No. 36638-GLB.
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Many regard Indonesia as one of the most dramatic examples
of the impacts that result from illegal logging. The rate of
deforestation in Indonesia is among the worst globally, and
commercial logging, most of which is illegal, is the primary
cause of that deforestation. In 1950, forests covered 84
percent of the country, but more recently, it has been
estimated that at least 40 percent of the forests have been
cleared.\3\ Currently, illegally cut wood is estimated to
comprise 73-88 percent of the total supply coming from
Indonesia,\4\ and the country continues to lose about five
million acres of forests per year.
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\3\Forest Watch Indonesia and Global Forest Watch, The State of the
Forest: Indonesia, 2002.
\4\Schroeder-Wildberg, E. and A. Carius. Illegal Logging, conflicts
and the business sector in Indonesia, 2003.
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According to a recent summary of studies compiled by the
Congressional Research Service, the situation in Indonesia is
hardly unique. In Cambodia, 90 percent of the logging is
estimated to be illegal. In the Philippines, sixteen million
hectares of forests that once existed have been reduced to less
than 100,000 today, largely due to illegal logging, and in
Brazil, 80 percent of the logging in the Brazilian rainforest
is considered illegal. These are just a few examples of the
impacts that are being felt throughout Southeast Asia and Latin
America.\5\
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\5\CRS Report for Congress, Illegal Logging: Background and Issues,
Order Code RL33932, March 2007.
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Illegal logging and the importation of wood and wood
products that come from illegally harvested logs also unfairly
compete with U.S. wood and wood products industries and
undercut U.S. prices. According to a recent report published by
the American Forest & Paper Association (AF&PA), illegal
logging costs the U.S. roughly $1 billion every year in lost
exports and lower domestic prices due to the importation of
illegal wood. Specifically, the AF&PA report found that
illegally harvested logs can be processed for as much as 50
percent less than legal logs and cheap, illegal timber
artificially depresses world timber prices on average between
7-16 percent and U.S. prices from 2-4 percent.\6\
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\6\American Forest & Paper Association, ``Illegal'' Logging and
Global Wood Markets, November 2004.
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There are several relevant multilateral and international
agreements intended to address illegal logging and the illegal
timber trade, ranging from voluntary to legally binding
multilateral agreements that enable signatory governments to
seize illegal products. The recent CRS report summarizes the
advantages and disadvantages of these agreements which include
wood certification programs, the United Nations Forum on
Forests, the International Tropical Timber Organization,
several World Bank efforts, and the G8 Illegal Logging
Dialogue.\7\ Yet despite these many efforts, the problems of
illegal logging continue to persist as described above, driven
by the demand for products that are developed from illegally
harvested wood and the lack of adequate regulatory mechanisms
in both exporting and consumer countries.
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\7\CRS Report, Order Code RL33932.
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It is estimated that the European Union, for example,
imports three billion British pounds' worth of illegally logged
wood each year from the Amazon Basin, the Baltic, the Congo,
East Africa, Indonesia, and Russia.\8\ China is a major
importer of timber from Gabon, Cameroon, Equatorial Guinea, and
Mozambique--all of which export illegally harvested timber.
Much of that timber is manufactured into products that are
exported to the U.S.
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\8\World Wildlife Fund, Failing Forests: Europe's Illegal Timber
Trade, November 2005.
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The United States is the world's largest wood products
consumer and one of the top importers of tropical hardwoods,
primarily from Latin American and Southeast Asia. For example,
the U.S. imports approximately one-third of its tropical
plywood and tropical furniture, as well as a significant amount
of paper, from Indonesia. Imports come directly from Indonesia
and via other countries such as China.\9\ We are also the
largest importer of Peruvian bigleaf mahogany, estimated by
some to be as much as 80 percent illegally logged.\10\
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\9\Hewitt, J., ``The USA's Direct and Indirect Imports of Products
Based on Wood from Indonesia's Forests: A Statistical Assessment and an
Introduction to the Supply Chain in the USA.'' World Wildlife Fund
report, 2003.
\10\Natural Resources Defense Council, Trade in Bigleaf Mahogany:
The Need for Strict Implementation of CITES, September 2006.
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According to the Department of Justice, however, there is
no legal mechanism that currently exists in U.S. law to
preclude the importation of wood and wood products known to be
illegally harvested in other countries.
The illegal timber trade is not the only trade involving
illegally harvested plants that are entering the United States,
however. Federal agencies regularly receive information
regarding the illegal export of plants such as yuccas, agaves,
and ocotillos from Mexico, and devils claw from southern
Africa. In such cases, plants that are protected in foreign
countries are being illegally collected and then imported into
the United States. These countries pass on the information
regarding illegal shipments seeking assistance to stop the
illegal trade. Like illegal timber, unfortunately, there are no
enforcement mechanisms under current law to stop these
shipments unless the species are listed under the Convention on
International Trade in Endangered Species of Wild Fauna and
Flora or the Endangered Species Act.
THE LACEY ACT OF 1981
The Lacey Act was first enacted in 1900. Amendments in 1981
repealed the Black Bass Act and sections 43 and 44 of the Lacey
Act of 1900 (18 U.S.C. 43-44), replacing them with a single
comprehensive statute. The law has been amended several times
since then.
Under the Lacey Act, it is unlawful for any person to--(1)
import, export, sell, acquire, or purchase any fish, wildlife
or plants taken, possessed, transported, or sold in violation
of U.S. law or regulation or in violation of any Indian tribal
law; or (2) import, export, sell, receive, acquire, or purchase
in interstate or foreign commerce any fish or wildlife, taken,
possessed, transported, or sold in violation of State or
foreign law or any plant taken, possessed, transported or sold
in violation of any State law. There are misdemeanor felony
criminal and civil penalties for violations of the Act, and
strict liability is established for forfeiture of illegal fish,
wildlife or plants.
The law applies to all fish and wildlife and their parts or
products, but is much more narrow in its protection of plants.
The Lacey Act currently only applies to species of plants that
are native to the United States and that are specifically
protected either under State law or the Convention on
International Trade in Endangered Species of Wild Fauna and
Flora, and it currently does not apply to plants that are
protected under foreign laws.
Because the Lacey Act does not extend to plants that are
taken, transported, or sold in violation of foreign laws, the
U.S. government is not able to use the criminal and civil
penalties of the Act to preclude the importation of wood and
wood products or other plants and plant products harvested in
violation of the laws of foreign governments or to seize such
illegally harvested plants and products when they enter the
United States. According to Justice Department enforcement
officials, changes to the Lacey Act that would extend its
coverage to plants taken in violation of foreign laws would
allow law enforcement officers to initiate actions similar to
those they now use for fish and wildlife products taken in
violation of foreign laws.
H.R. 1497 would make such changes to the Lacey Act.
Specifically the bill would amend the prohibited acts section
of the law to make it unlawful to import any plant taken in
violation of foreign laws related to the harvest, taking and
protection of plants or any product made from such a plant.
Committee Action
H.R. 1497 was introduced by Congressman Blumenauer (D-OR)
on March 13, 2007 and has 43 co-sponsors. The bill was referred
to the Committee on Natural Resources, and within the Committee
to the Subcommittee on Fisheries, Wildlife and Oceans. H.R.
1497 was the subject of a Subcommittee hearing on October 16,
2007. A witness for the Department of Justice testified that
the Administration supported amending the Lacey Act to provide
enforcement agencies with adequate and clearly defined legal
tools to address illegal logging and trafficking of foreign
timber. The Administration also identified some concerns with
specific provisions in the bill, many of them technical in
nature.
In addition, the Environmental Investigation Agency, the
American Forest & Paper Association, and the Hardwood
Federation all testified in favor of the legislation with some
suggested changes.
A representative of the International Wood Products
Association (IWPA) opposed the bill, citing concerns with the
broad reach of the definition of ``any foreign law,'' the
documentation requirements, and the strict forfeiture
requirements of the Lacey Act.
On November 7, 2007, the Subcommittee on Fisheries,
Wildlife and Oceans was discharged from further consideration
of H.R. 1497, and the Committee on Natural Resources considered
the bill. Chairman Rahall offered an amendment in the nature of
a substitute that made the following changes to address many of
the concerns that had been raised about the bill as introduced.
First, it narrowed the scope of the bill to clarify that it
applies to the violation of laws or regulations related to the
protection of plants from harvesting, cutting, logging, removal
and shipment without legal authority, and not to the violation
of ``any'' foreign or State law. Second, it made clear that the
penalties related to plant declarations requirements would be
similar to those applicable for fish and wildlife declarations.
It also excluded packing materials used to ship goods, like
paper and pallets, from the declaration requirements and made
other minor technical changes suggested by the Administration.
Finally, the amendment included language that reaffirmed
the application of the civil forfeiture provisions of Chapter
46 of Title 18 to the forfeiture provisions of the Lacey Act.
According to the Justice Department, these provisions already
apply to all forfeiture laws unless a law is explicitly
exempted--which the Lacey Act is not.
The amendment in the nature of a substitute was adopted by
voice vote. The bill, as amended, was then ordered favorably
reported to the House of Representatives by voice vote.
Section-by-Section Analysis
Section 1. Short title
Section 1 cites this Act as the ``Legal Timber Protection
Act''.
Section 2. Prevention of illegal logging practices
Section 2 of the bill makes several changes to the Lacey
Act Amendments of 1981.
First, it amends the definition of plant in Section 2 of
the Act (16 U.S.C. 3371) to include all plants and plant
products, including those that are protected under foreign
laws. It maintains, however, the exemption in current law for
common food crops and cultivars unless they are listed under
the Convention on International Trade in Endangered Species of
Wild Fauna and Flora or under the Endangered Species Act. The
Committee notes that none of the amendments to the term
``plant'' are intended to diminish the authority of the
Secretaries to enforce the provisions of the Convention on
International Trade in Endangered Species of Wild Fauna and
Flora or the Endangered Species Act.
The bill also expands the definition of ``take'' with
respect to plants to include ``harvest, cut, log, or remove.''
It further amends the definition of Secretary to include the
Secretaries of Commerce and Interior with respect to the plant
provisions.
Next, it amends Section 3 of the Act (16 U.S.C. 3372), the
Prohibited Acts section, to make it unlawful for any person to
import, export, transport, sell, receive, acquire or purchase
in interstate or foreign commerce any plant taken, transported,
possessed or sold in violation of State or foreign laws enacted
to protect plants from harvest, shipment, or export without
legal authority. It also makes it unlawful to possess plants
within the maritime and territorial jurisdiction of the United
States that were taken, transported, possessed, or sold in
violation of such State or foreign laws. These provisions are
intended to identify the particular violations that are
prohibited acts with respect to plants and to differentiate
them from the violations in the Act that apply to fish and
wildlife.
Specifically, paragraph (i) covers laws that regulate the
theft of plants, the taking of plants from national parks and
``other officially designated areas,'' and the taking of plants
in violation of a required authorization. The reference to
``other officially designated areas'' is intended to include
laws relating to the taking of plants from specific geographic
features such as stream beds as well as any specific locations
or areas other than national parks or nature reserves.
Paragraph (ii) covers laws that require appropriate royalties,
stumpage fees, or export taxes and is intended to address
reported concerns regarding under-reporting of exports or
cutting for the purposes of avoiding payments. Paragraph (iii)
covers laws limiting the export of plants, e.g. log export bans
or quotas, or the ``transshipment'' of plants, which can be
utilized to mask the origin of the plant during transportation
through an intermediate port.
It also adds a new subsection (f) to Section 3, making it
unlawful for any person to import a plant without filing an
accompanying declaration that identifies the scientific name of
the plant, the value and quantity of the plant being imported,
and the name of the country from which the plant was taken.
Where the species and country of origin cannot be specified
because the shipment contains products with multiple possible
species and/or countries of origin, the declaration may list
the possibilities. These declaration requirements become
effective 180 days after enactment.
The bill excludes from the declaration requirement wood and
paper packing materials used exclusively to support, protect,
or carry another item. This exclusion does not apply if the
packing materials are the actual item being imported.
The Secretary is directed to review within two years of
enactment, with public participation, the declaration
requirements and exclusions. Within 180 days of completion of
the review, the Secretary must report to Congress with an
evaluation of the effectiveness of the information collected,
any recommendations for further legislation, and an analysis of
the effect of the bill on the cost of legal imports and on
illegal logging.
Also within 180 days of the completion of the review, the
Secretary may issue regulations to limit or modify the use of
the provision for declarations involving multiple species and
countries of origin and to adjust the exclusion for packing
materials.
Amendments to Section 4 of the Act (16 U.S.C. 3373) make
clear that the penalties related to violations of plant
declarations requirements would be similar to those applicable
for fish and wildlife declarations.
Amendments to Section 5 (16 U.S.C. 3374) add a new
subsection (d) to reaffirm, as has been the case since 2000,
that the civil forfeiture provisions of the Act are governed by
the provisions of chapter 46 of title 18, United States Code.
This reference is technical and is intended to aid the reader
of title 16 who may not be familiar with the civil forfeiture
procedures in title 18. It is not intended to make any
substantive change in the law that governs civil forfeiture
actions under the Lacey Act. Nor does the Committee intend for
it to call into question existing legal precedent as it relates
to the application of the Lacey Act in criminal, civil or
forfeiture proceedings. Since 1981, when substantive amendments
were adopted, the Act has provided for forfeiture of fish,
wildlife, and plants on a strict liability basis when
violations of the Lacey Act are found.\11\
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\11\See Senate Report No. 97-123.
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The bill amends the rulemaking authority in section 7 of
the Act (16 U.S.C. 3376) to allow the Secretary to issue
regulations to establish the process for submission of
declarations. The responsibility and cost of compilation and
review of these declarations is a matter exclusively assigned
to the Secretary.
Finally, the bill makes a technical correction to Public
Law 100-653, executing an amendment to the Act that was made in
that law, but that could not execute as written, because the
words that the amendment struck did not appear in the statute.
Without this technical correction, an amendment in H.R. 1497 to
the same provision would not execute.
Committee Oversight Findings and Recommendations
Regarding clause 2(b)(1) of rule X and clause 3(c)(1) of
Rule XIII of the Rules of the House of Representatives, the
Committee on Natural Resources' oversight findings and
recommendations are reflected in the body of this report.
Constitutional Authority Statement
Article I, section 8 and Article IV, section 3 of the
Constitution of the United States grants Congress the authority
to enact this bill.
Compliance With House Rule XIII
1. Cost of Legislation. Clause 3(d)(2) of rule XIII of the
Rules of the House of Representatives requires an estimate and
a comparison by the Committee of the costs which would be
incurred in carrying out this bill. However, clause 3(d)(3)(B)
of that Rule provides that this requirement does not apply when
the Committee has included in its report a timely submitted
cost estimate of the bill prepared by the Director of the
Congressional Budget Office under section 402 of the
Congressional Budget Act of 1974.
2. Congressional Budget Act. As required by clause 3(c)(2)
of rule XIII of the Rules of the House of Representatives and
section 308(a) of the Congressional Budget Act of 1974, this
bill does not contain any new budget authority, spending
authority, credit authority, or an increase or decrease in
revenues or tax expenditures.
3. General Performance Goals and Objectives. As required by
clause 3(c)(4) of rule XIII, the general performance goal or
objective of this bill is to amend the Lacey Act Amendments of
1981 to extend its protections to plants illegally harvested
outside the United States and for other purposes (16 U.S.C.
3371 et seq.).
4. Congressional Budget Office Cost Estimate. Under clause
3(c)(3) of rule XIII of the Rules of the House of
Representatives and section 403 of the Congressional Budget Act
of 1974, the Committee has received the following cost estimate
for this bill from the Director of the Congressional Budget
Office:
H.R. 1497--Legal Timber Protection Act
Summary: H.R. 1497 would expand the Lacey Act to protect
certain plant species, including trees. Currently, the Lacy Act
generally prohibits interstate and international trafficking in
protected wildlife. Violators of prohibitions imposed by this
bill would be subject to criminal and civil penalties. CBO
estimates that implementing the bill would cost the federal
government $40 million over the 2008-2012 period, assuming
appropriation of the necessary amounts. Enacting the bill could
increase revenue collections from penalties, but we estimate
that any such increases would be small and largely offset by
direct spending of those collections.
The bill contains no intergovernmental mandates as defined
in the Unfunded Mandates Reform Act (UMRA) and would impose no
direct costs on state, local, or tribal governments.
H.R. 1497 contains private-sector mandates, as defined in
UMRA, on importers of timber and timber products. CBO cannot
determine whether the aggregate cost of the mandates in the
bill would exceed the annual threshold established in UMRA for
private-sector mandates ($131 million in 2007, adjusted
annually for inflation).
Estimated cost to the Federal Government: The estimated
budgetary impact of H.R. 1497 is shown in the following table.
The costs of this legislation fall within budget functions 350
(agriculture) and 750 (administration of justice).
------------------------------------------------------------------------
By fiscal year in millions of dollars--
---------------------------------------
2008 2009 2010 2011 2012
------------------------------------------------------------------------
CHANGES IN SPENDING SUBJECT TO APPROPRIATION
Estimated Authorization Level... 5 10 10 10 10
Estimated Outlays............... 3 7 10 10 10
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Basis of estimate: H.R. 1497 would make it illegal to
harvest, import, export, transport, sell, receive, or possess
timber and other plants (including products made from them)
that were taken or transported in violation of any state or
foreign law. The Animal and Plant Health Inspection Service
(APHIS) and U.S. Customs and Border Protection (CBP) would
enforce the prohibitions.
Assuming appropriation of the necessary amounts, CBO
estimates that implementing H.R. 1497 would cost about $40
million over the 2008-2012 period. That amount includes $10
million over the first two years for up-front costs to
promulgate regulations, develop a legal and technical database
and hire, equip, and train CBP and APHIS staff. We estimate
that the remaining $30 million would be spent over the
following three years to conduct inspections and investigations
to enforce the legislation. This estimate is based on the cost
of other enforcement activities conducted under the Lacey Act
and on information provided by the affected agencies.
Enacting H.R. 1497 could increase revenues from civil and
criminal fines. Based on information obtained from APHIS about
the relatively small number of violations likely to occur, CBO
estimates that any such increase would be less than $500,000
annually. Moreover, such changes would be fully offset by
increases in direct spending, primarily for enforcement
expenses.
Estimated impact on state, local, and tribal governments:
H.R. 1497 contains no intergovernmental mandates as defined in
UMRA and would impose no direct costs on state, local, or
tribal governments.
Estimated impact on the private sector: H.R. 1497 contains
private-sector mandates as defined in UMRA. It would prohibit
importing timber taken in violation of foreign laws specified
in the bill and prohibit importing products made from such
timber. According to testimony by the Department of Justice,
importing such timber currently does not violate U.S. laws. In
addition, the bill would require importers to report additional
information when importing timber or timber products.
CBO expects that the administrative costs incurred by
importers would be relatively small. However, because of
uncertainty about the U.S. markets for imports of timber
obtained in violation of foreign laws or products made from
such timber, CBO cannot estimate the loss in net income to
importers of those commodities. Consequently, CBO cannot
determine whether the aggregate cost of all the mandates in the
bill would exceed the annual threshold ($131 million in 2007,
adjusted annually for inflation).
Estimate prepared by: Federal Costs: Deborah Reis; Impact
on State, Local, and Tribal Governments: Melissa Merrill;
Impact on the Private Sector: Amy Petz.
Estimate approved by: Theresa Gullo, Deputy Assistant
Director for Budget Analysis.
Compliance With Public Law 104-4
This bill contains no unfunded mandates.
Earmark Statement
H.R. 1497 does not contain any congressional earmarks,
limited tax benefits, or limited tariff benefits as defined in
clause 9(d), 9(e) or 9(f) of rule XXI.
Preemption of State, Local or Tribal Law
This bill is not intended to preempt any State, local or
tribal law.
Changes in Existing Law Made by the Bill, as Reported
In compliance with clause 3(e) of rule XIII of the Rules of
the House of Representatives, changes in existing law made by
the bill, as reported, are shown as follows (existing law
proposed to be omitted is enclosed in black brackets, new
matter is printed in italic, existing law in which no change is
proposed is shown in roman):
LACEY ACT AMENDMENTS OF 1981
* * * * * * *
SEC. 2. DEFINITIONS.
For purposes of this Act:
(a) * * *
* * * * * * *
[(f) The terms ``plant'' and ``plants'' mean any wild member
of the plant kingdom, including roots, seeds, and other parts
thereof (but excluding common food crops and cultivars) which
is indigenous to any State and which is either (A) listed on an
appendix to the Convention on International Trade in Endangered
Species of Wild Fauna and Flora, or (B) listed pursuant to any
State law that provides for the conservation of species
threatened with extinction.]
(f) Plant.--
(1) In general.--The term ``plant'' means any wild
member of the plant kingdom, including roots, seeds,
parts, and products thereof.
(2) Exclusions.--The term ``plant'' excludes any
common food crop or cultivar that is a species not
listed--
(A) in the Convention on International Trade
in Endangered Species of Wild Fauna and Flora
(27 UST 1087; TIAS 8249); or
(B) as an endangered or threatened species
under the Endangered Species Act of 1973 (16
U.S.C. 1531 et seq.).
* * * * * * *
(h) The term ``Secretary'' means, except as otherwise
provided in the Act, the Secretary of the Interior or the
Secretary of Commerce, as program responsibilities are vested
pursuant to the provisions of Reorganization Plan Numbered 4 of
1970 (84 Stat. 2090); except that with respect to the
provisions of this Act which pertain to the importation or
exportation of plants the term also means the Secretary of
Agriculture.
* * * * * * *
[(j) The term ``taken'' means captured, killed, or
collected.]
(j) Take.--The term ``take'' means--
(1) to capture, kill, or collect; and
(2) with respect to a plant, also to harvest, cut,
log, or remove.
* * * * * * *
SEC. 3. PROHIBITED ACTS.
(a) Offenses Other Than Marking Offenses.--It is unlawful for
any person--
(1) * * *
(2) to import, export, transport, sell, receive,
acquire, or purchase in interstate or foreign
commerce--
(A) * * *
[(B) any plant taken, possessed, transported,
or sold in violation of any law or regulation
of any State; or]
(B) any plant--
(i) taken, transported, possessed, or
sold in violation of any law or
regulation of any State, or any foreign
law, that protects plants or that
regulates--
(I) the theft of plants;
(II) the taking of plants
from a park, forest reserve, or
other officially protected
area;
(III) the taking of plants
from an officially designated
area; or
(IV) the taking of plants
without, or contrary to,
required authorization;
(ii) taken, transported, or exported
without the payment of appropriate
royalties, taxes, or stumpage fees
required for such plant by any law or
regulation of any State or by any
foreign law; or
(iii) exported or transshipped in
violation of any limitation under any
law or regulation of any State or under
any foreign law; or
* * * * * * *
(3) within the special maritime and territorial
jurisdiction of the United States (as defined in
section 7 of title 18, United States Code)--
(A) * * *
[(B) to possess any plant taken, possessed,
transported, or sold in violation of any law or
regulation of any State; or]
(B) to possess any plant--
(i) taken, transported, possessed, or
sold in violation of any law or
regulation of any State, or any foreign
law, that protects plants or that
regulates--
(I) the theft of plants;
(II) the taking of plants
from a park, forest reserve, or
other officially protected
area;
(III) the taking of plants
from an officially designated
area; or
(IV) the taking of plants
without, or contrary to,
required authorization;
(ii) taken, transported, or exported
without the payment of appropriate
royalties, taxes, or stumpage fees
required for such plant by any law or
regulation of any State or by any
foreign law; or
(iii) exported or transshipped in
violation of any limitation under any
law or regulation of any State or under
any foreign law; or
* * * * * * *
(f) Plant Declarations.--
(1) In general.--Effective 180 days from the date of
enactment of this subsection and except as provided in
paragraph (3), it shall be unlawful for any person to
import any plant unless the person files upon
importation where clearance is requested a declaration
that contains--
(A) the scientific name of any plant
(including the genus and species of the plant)
contained in the importation;
(B) a description of--
(i) the value of the importation; and
(ii) the quantity, including the unit
of measure, of the plant; and
(C) the name of the country from which the
plant was taken.
(2) Declaration relating to plant products.--Until
the date on which the Secretary promulgates a
regulation under paragraph (6), a declaration relating
to a plant product shall--
(A) in the case in which the species of plant
used to produce the plant product that is the
subject of the importation varies, and the
species used to produce the plant product is
unknown, contain the name of each species of
plant that may have been used to produce the
plant product; and
(B) in the case in which the species of plant
used to produce the plant product that is the
subject of the importation is commonly taken
from more than 1 country, and the country from
which the plant was taken and used to produce
the plant product is unknown, contain the name
of each country from which the plant may have
been taken.
(3) Exclusions.--Paragraphs (1) and (2) shall not
apply to plants used exclusively as packaging material
to support, protect, or carry another item, unless the
packaging material itself is the item being imported.
(4) Review.--Not later than 2 years after the date of
enactment of this subsection, the Secretary shall
review the implementation of each requirement described
in paragraphs (1) and (2) and the effect of the
exclusions in paragraph (3).
(5) Report.--
(A) In general.--Not later than 180 days
after the date on which the Secretary completes
the review under paragraph (4), the Secretary
shall submit to the appropriate committees of
Congress a report containing--
(i) an evaluation of--
(I) the effectiveness of each
type of information required
under paragraphs (1) and (2) in
assisting enforcement of
section 3; and
(II) the potential to
harmonize each requirement
described in paragraphs (1) and
(2) with other applicable
import regulations in existence
as of the date of the report;
(ii) recommendations for such
legislation as the Secretary determines
to be appropriate to assist in the
identification of plants that are
imported into the United States in
violation of section 3; and
(iii) an analysis of the effect of
the provisions of subsection (a) and
(f) on--
(I) the cost of legal plant
imports; and
(II) the extent and
methodology of illegal logging
practices and trafficking.
(B) Public participation.--In conducting the
review under paragraph (3), the Secretary shall
provide public notice and an opportunity for
comment.
(6) Promulgation of regulations.--Not later than 180
days after the date on which the Secretary completes
the review under paragraph (4), the Secretary may
promulgate regulations--
(A) to limit the applicability of any
requirement described in paragraph (2) to
specific plant products;
(B) to make any other necessary modification
to any requirement described in paragraph (2),
as determined by the Secretary based on the
review under paragraph (4); and
(C) to limit the scope of exclusion in
paragraph (3) if warranted as a result of the
review under paragraph (4).
SEC. 4. PENALTIES AND SANCTIONS.
(a) Civil Penalties.--
(1) Any person who engages in conduct prohibited by
any provision of this Act [(other than subsection
3(b))] (other than subsections (b), (d), and (f) of
section 3) and in the exercise of due care should know
that the fish or wildlife or plants were taken,
possessed, transported, or sold in violation of, or in
a manner unlawful under, any underlying law, treaty, or
regulation, may be assessed a civil penalty by the
Secretary of not more than $10,000 for each such
violation: Provided, That when the violation involves
fish or wildlife or plants with a market value of less
than $350, and involves only the transportation,
acquisition, or receipt of fish or wildlife or plants
taken or possessed in violation of any law, treaty, or
regulation of the United States, any Indian tribal law,
any foreign law, or any law or regulation of any State,
the penalty assessed shall not exceed the maximum
provided for violation of said law, treaty, or
regulation, and any person who knowingly violates
section 3(d) or section 3(f), or $10,000, whichever is
less.
(2) Any person who violates subsection 3(b) or who
violates subsection 3(f) other than as provided in
paragraph (1) may be assessed a civil penalty by the
Secretary of not more than $250.
* * * * * * *
(d) Criminal Penalties.--
(1) Any person who--
(A) knowingly imports or exports any fish or
wildlife or plants in violation of any
provision of this Act [(other than subsection
3(b))] (other than subsections (b), (d), and
(f) of section 3), or
(B) violates any provision of this Act
[(other than subsection 3(b))] (other than
subsections (b), (d), and (f) of section 3) by
knowingly engaging in conduct that involves the
sale or purchase of, the offer of sale or
purchase of, or the intent to sell or purchase,
fish or wildlife or plants with a market value
in excess of $350,
knowing that the fish or wildlife or plants were taken,
possessed, transported, or sold in violation of, or in
a manner unlawful under, any underlying law, treaty or
regulation, shall be fined not more than $20,000, or
imprisoned for not more than five years, or both. Each
violation shall be a separate offense and the offense
shall be deemed to have been committed not only in the
district where the violation first occurred, but also
in any district in which the defendant may have taken
or been in possession of the said fish or wildlife or
plants.
(2) Any person who knowingly engages in conduct
prohibited by any provision of this Act [(other than
subsection 3(b))] (other than subsections (b), (d), and
(f) of section 3) and in the exercise of due care
should know that the fish or wildlife or plants were
taken, possessed, transported, or sold in violation of,
or in a manner unlawful under, any underlying law,
treaty or regulation shall be fined not more than
$10,000, or imprisoned for not more than one year, or
both. Each violation shall be a separate offense and
the offense shall be deemed to have been committed not
only in the district where the violation first
occurred, but also in any district in which the
defendant may have taken or been in possession of the
said fish or wildlife or plants.
(3) Any person who knowingly violates section 3(d) or
section 3(f)--
(A) * * *
* * * * * * *
(e) Permit Sanctions.--The Secretary may also suspend,
modify, or cancel any Federal hunting or fishing license,
permit, or stamp, or any license or permit authorizing a person
to import or export fish or wildlife or plants (other than a
permit or license issued pursuant to the Fishery Conservation
and Management Act of 1976 ), or to operate a quarantine
station or rescue center for imported wildlife or plants,
issued to any person who is convicted of a criminal violation
of any provision of this Act or any regulation issued
hereunder. The Secretary shall not be liable for the payments
of any compensation, reimbursement, or damages in connection
with the modification, suspension, or revocation of any
licenses, permits, stamps, or other agreements pursuant to this
section.
SEC. 5. FORFEITURE.
(a) * * *
* * * * * * *
(d) Civil Forfeitures.--Civil forfeitures under this section
shall be governed by the provisions of chapter 46 of title 18,
United States Code.
* * * * * * *
SEC. 7. ADMINISTRATION.
(a) Regulations.--
(1) The Secretary, after consultation with the
Secretary of the Treasury, is authorized to issue such
regulations, except as provided in paragraph (2), as
may be necessary to carry out the provisions of
[section 4] section 3(f), section 4, and section 5 of
this Act.
* * * * * * *
----------
SECTION 102 OF PUBLIC 100-653
SEC. 102. PENALTY.
(a) * * *
* * * * * * *
(c) Conforming Amendments.--Section 4 of the Lacey Act
Amendments of 1981 is amended in subsections (a)(1), (d)(1)(A),
(d)(1)(B), and (d)(2) by striking ``[(other than section 3(b))]
(other than subsection 3(b))'' each place those words appear
and inserting in lieu thereof ``(other than subsections (b) and
(d) of section 3)''.
ADDITIONAL VIEWS
While the House Natural Resources Committee favorably
reported this legislation to the House of Representatives by
voice vote, I wanted to express my views on several important
features of this measure. I am first of all deeply disappointed
that the Department of Justice has consistently refused to even
try to enforce existing laws to stop the illegal importation of
logs or other wood products. In fact, during our Subcommittee
hearing on H. R. 1497, the Department testified that: ``We
believe that existing U. S. laws do not adequately address this
problem.'' In my questions for the record, I asked the
Department why they have not utilized the National Stolen
Property Act of 1948, the Cultural Property Act of 1983 and
existing money-laundering statutes which are designed to stop
illegal logging. It is my hope that before this legislation
becomes law, we will hear a credible explanation as to why
these laws were inadequate.
H.R. 1497 includes language applying the General Rules for
Civil Forfeiture Proceedings known as the Civil Asset
Forfeiture Reform Act of 2000 (CAFRA). Inclusion of this
language in this bill clearly reaffirms that Congressional
intent is for CAFRA to apply to Lacey Act forfeiture
procedures. Adding this language to H.R. 1497 reinforces
Congress' intent to provide ``innocent owner'' forfeiture
liability protection within the Lacey Act.
``Innocent owner'' provides to claimants in forfeiture
proceedings an opportunity to mount--as an affirmative
defense--their assertion that disputed shipments were acquired
lawfully, through the exercise of ``due care''. Otherwise, as
in the current Lacey Act, claimants are held to a ``strict
liability'' standard, where mere possession of disputed goods
constitutes grounds for forfeiture. Without access to an
``innocent owner'' defense, importers and supply chain members
are vulnerable to seizure and civil forfeiture without the
opportunity to demonstrate ``due care'' in their acquisition of
disputed shipments. Owing to prosecutorial abuse in forfeiture
cases, the Congress in 2000 enacted the Civil Asset Forfeiture
Reform Act, making clear that ``innocent owner'' is available
to all claimants, except in cases involving possession of
contraband or goods which are inherently illegal to possess.
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.''
Despite enactment of CAFRA in 2000, presumably superseding
the strict liability provisions of the Lacey Act, there is an
unmistakable trend toward diminution of the innocent owner
provisions. Recent case law had effectively exempted Lacey Act
forfeitures from the ``innocent owner'' defense, through an
expansive interpretation of contraband and goods which it is
inherently illegal to possess. In U.S. v. 144,774 Pounds of
Blue King Crab, crab was taken in violation of Russian vessel
tracking laws, about which the U.S. importer had no knowledge.
The importer argued that blue king crab did not constitute
``property that it is illegal to possess'', and that he was
therefore entitled to utilize the ``innocent owner'' defense
under forfeiture law.
The federal Court of Appeals disagreed, stating: ``we hold
that Deep Sea may not raise an innocent-owner defense here
because, if the government can establish (under the Lacey Act)
that the crab was taken, possessed, transported, or sold in a
way that rendered it illegal under Russian law, the crab is
`property that it is illegal to possess' for the purposes of 18
U.S.C. Section 983(d)(4). This interpretation effectively
expanded to all Lacey Act violations the bar to availability of
the ``innocent owner'' defense, even when an importer can
demonstrate that he is without knowledge of a foreign
violation, and had exercised ``due care'' to assure the
legality of a given shipment.
Importantly, Customs also has brought Lacey Act forfeiture
actions against importers who believed they had legitimate
exception permits to export illegal animals or animal products.
The specificity of language in H.R. 1497 and specific reference
to CAFRA subsequent to the Blue Crab case are intended to
clearly show that it is Congress' intent to provide ``innocent
owner'' in forfeiture proceedings under the Lacey Act.
It is also important to note that Lacey Act does not define
the term ``foreign law.'' In the absence of such definition,
the courts have interpreted the phase ``any foreign law''
extremely broadly in the content of fish and wildlife taken in
contravention of any foreign law. See e.g. United States v.
McNab, 331 F.3d 1228, 1235-39 (11th Cir. 2003) (interpreting
``any foreign law'' to include non-statutory provisions such as
foreign regulations, resolutions, or decrees); United States v.
One Afghan Urial Ovis Orientalis Blanfordi Fully Mounted Sheep,
964 F.2d 474, 477-78 (5th Cir. 1992) and United States v. Lee,
937 F2d 1388, 1390-92 (9th Cir. 1991).
In an effort to provide more specific guidance to U.S.
importers, and to constrain the broad interpretations that
Federal courts have placed on the term ``any foreign law,'' the
language in H.R. 1497 defines equally both ``State'' and
``foreign law'' in 16 U.S.C. Section 3372 to include only those
laws which relate to policy objectives of the Lacey Act, those
intended specifically to promote the protection or conservation
of threatened or endangered plants.
Finally, it is my hope that prior to bringing this
legislation to the House of Representatives, we will have an
additional opportunity to meet with the various representatives
of the Executive Branch who will be charged with the
responsibility of investigating, enforcing and collecting the
various data regarding the importation of illegal logs and
other wood products. Since there has been considerable
realigning of responsibilities, including the reassignment of
agricultural inspectors, since the creation of the Department
of Homeland Security, it is essential that we ensure that the
correct federal agencies have the authority and resources to
effectively accomplish the goals of this legislation. In
addition, we need to ensure that the measure correctly defines
the term ``plant''. We can all agree that illegal logging
should be stopped.
Henry E. Brown, Jr.